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Culture Documents
Samuel Von Pufendorf, Law of Nature and Nations 1729 Kennett Edtiion
Samuel Von Pufendorf, Law of Nature and Nations 1729 Kennett Edtiion
\
3otm ^itantB
IN TliE CUSTODY OF THE
BOSTON PUBLIC LIBRARY.
SHELF N
vADAmS
ii
\.
J
P^l
c7
O F T H E
.
L
A
W
O F
NATURE
AND
NATIONS.
Eight BOOKS.
f'
f
.-
J -J >xL
Written in Latin by the BarotiTuFENDORF,
Counfellor of State to his late
Swedijh
Maje-
fty^ and to the late King of
Pruffia,
Done into English by B^SIL KENNETT, D D.
late Prelident of Corpus Chrijlt College in Oxford.
1
To which are added
All the large NOTES of Mr, Barbeyrac,
Tranflated from the beft E D I T I O N
;
Together with Large T A B L E S to the
Whole.
The Fourth Edition, carefully Correfted.
To which is now prefixed
Mr. Barbeyrac's Prefatory DISCOURSE,
CONTAINING
An
Hiftorical and Critical Account of the Science of
Morality, and the Progrefs it has made in theWorld, from the
earlieft Times down to the Publication of this Work.
Done into
English
by Mr. CAREW
of Lincoln s~Inn.
LONDON:
^^'^^
Printed for
J.
Walthoe,
R. Wilkin,
J.
and
J.
Bokwicke, S. Birt,
T.
WA R
D,
and T. Os b o r n e.
MDCCXXIX.
rf -
AOAS
To the Right Honourable
Sir
Nathan fFright, Knight,
LOR D-K E
E P
E R
OF THE
GkeatSektuo^ENGLAND,
One of the LORDS of Her MAJESTY'S moft
Honourable PRIVY-COUNCIL, t^c.
Mr LORD,
H E Author and Subjeft, here
prefent-
ed to your Lordlhip, have in them-
felves, the beft of Claims to fo great
a Proteftion : For, neither can he
whofe known Capacity, Induftry, and Integrity,
rendered him the Ornament of his own Profefli-
on, and of his Prince's Council, apply himfelf with
more Succefs, than to one, who has rifen, by the
fame Steps, to
a nobler Eminence of Honour and
a z
Em
*
T^lje
Epiftle
Dedicator^.
Employment^ nor ought any other, than the
Guar-
dian and Difpenfer ofpiiblick Eqnity,to be
acknow-
ledged as the Patron of the Law
of
Nature and
Na-
tions. But the Ambition of this Addrefs was
alike
needful, in Refped of all the Tranflators
j
as
an
Occafion of acknowledging
the Influence
which
they feel from your Lordfhip s Authority,
with
Re-
gard both to their Fundion and their
Studies
:
Your Lordfhip efteeming it no lefs worthy
a Part
of your Charader and Office, to fupport the
moft
primitive Church, and the moft
regular
Univerfi-
ties ', than to prefide over the Juftice
of the wifeft
State, or to dired the Policy of the
happieft
Reign.
I am^
With all Duty
and
Refpetl,
Tour
Lord/hi
fs
moft
obliged
Humble Servant,
BASIL KENNETT.
THE
THE
P R E
F A C
E.
T is a i>tlcmma frequently urged again
ft
Verfions
of
this Kind, that i4/hen a Subject lies remote from
vulgar Confideration,Terfons
of
Learning willpur-
fue
the Knowledge
of
it in the learned Language
s^
whilfl
others
mtfl remain equally Strangers to it
in all, whichyet abatesproportionally
of
its Force,
Cg3>i.^^ji^^;^all according as either the original Terformance has
J^een le/S fortunate in Stile
j
or as the Improvements
of
a modern
Tongue have been able to extend them[elves to the
abflrufefl
Rea-
fonings, and to [peak even
ofThilofophy with the Advantages
of
Elo-
quence. As
there is a Concurrence
of thefe two Conditions, to ju-
flify
the prefent
Attempt
j fo
the
fecond
of
them, which, through
perfonal Inability, may have been impaired,
feems
yet to be recom-
pen
fed,
by a
peculiar IVeight and Trevalency in the
firft.
For the
Commendation
of
our Author s ^Judgment hath fcarce been more
univerfal, than the Cenfure
of
his Compofition
;
which though, by
all, acknowledged to be
exprejfive, yet to
moft
appears
fo difficult
and difc
ouraging, that they fometimesfancy the
Senfe
to have brok-
en its IVay through the Thrafe, and to have
left thefe Irregularities,
as the Tokens
of
its Violence. It is true, he has not
failed in the
very Entrance
of
his Work, to apologize
for
this Vefeci
of
Orna-
ment
J
but the Tlea he
offers
is, what may better
excufe the ne-
cefjary
Roughnefl
of
a Subjetl, than the particular Unhappinef
of
a
IVriter. Another vifible T)i[advantage there was, which called
for
Relief. Our Author havingpublifjed the
firfl
T)raught
of
this
great Undertaking in the Tear mdclx, with the Title <?/ Elementa
Jurifpi
udentise, having al[o employed the Labour and ColleBions
of
twelve Tears, in bringing it to its preje7it Method and Name.^ was
not content to have drawn together all Affi/lances,
which were
of
direct and immediate U[e,
from
the Stores
of
Morality, Toliticks,
and Law
j
but engaged
him
f
elf
in a longer and wider Search, y^un-
tung through the whole Circle
of
philological Authors, antient and
mo-
The PREFACE.
modern,
and dijpofing,
Under the Heads
of his Work, the mo
ft
re-
mote
Examples, and IHu
ft
rations. Hence
e-verj Tage came to
he
loaded,
7iot only with numerous
Citations
at large,
hut with di
[or-
derly Marks -9/ Addition,
Reference, Comparilbn,
and the tike:
As
if
the
Confufion of
a [welling
Margin had run over,
atiddi[charg-
ed it
[elf
upon the Text. Thus
the Teriods
were
frequently
dif
jointed, the Argument
interrupted, or
ohfcured,
and the great
eft
Tart
of
the main Body thrown
into the
difagreeable
Figure
of
a
Cmnmon-place.
Some Endeavours ha've been here applied
towards
the
lefening
of
both thefe
ImperfeBions. In ReJpeCi
of
Stile, it is hoped,
that the
Metal, how rude foe^ver and incapable
of
being
polifjed to exaH
Beauty, yet
after
a
fee
ond melting, may
appear
lef deformed, and
may
paf
into more general life : But it is beyond
Doubt, that the
other Inequality has beenfarther recti
fled, by our cafling under the
Tage the needle[^ and mifjapen
Mafi of
foreign Supplies
j
iMch
it might have been no unpardonable
Boldnef utterly to have pared
away
;
but that we ought to be cautious
ofpra&ifing upon an Au-
thor, and to take Care,
lefl by cutting
off
an
Excrefcency, we
fjould
endanger the Life
of
a
T>eftgn.
Cuftom
has not
fo
far prevailed over
Decency, as to engage the
Tranflators in proclaiming the
Juftice of
their Choice,
and Merit
of
their
Author. Much
lef^
would they
ground his Charaher
on the
invidious Argument
of
Comparifon. To contend with the admired
Karnes
of
Grotius,
Selden, and the Right
Reverend the
prefent
Lord Bifhop
of
Peterborough, is what he ought to decline in Toint
of
Mode
fly,
if7iotof Safety.
Tet this
fe
ems to have
fallen out to
his Advantage, that no one
of
thofe great Men attempted a com-
pleat Body
of
moral, or political Doctrine. The
firfl
chofe rather
to infifl
on Authorities taken from the Hiflorians, Civilians, and
Canofifls,
than on philofophical Deduliions,
from the Nature
of
Men, and the Reafons
of
Things.
The [econd entred no
farther
into this Subject, than as the
Jewifli Inflitutions directed hh Vieqji/,
My Lord
of
Peterborough, having
overthrown the deceitful Fabrich
of
a late treacherous Builder,
and
fettled the Science
of
Morality
on its truefl
and deepejl
Foundations,
left
the
SuperftruClure to be
raifed
by inferior
Hands. Thus,
while
each had a particular Boun-
dary to his own Enquiries, all contributed to the TerfeCiion
of
our
Authors Syflem :
In which, as he
abftains not
from grateful Re-
membrances
of
thefe,
and other
learned
Benefa&crs,
fo
he now
teaches theTiiblifher
of
this
Tranflation, mo
ft
gladly to
acknowledge
the Favour and Ajfiftance
of
his
Friends
;
of
whom two
eJpeciaUy^
the Reverend Mr. Percivale, and the Reverend Mr. Itchiner,
^
en-
tirely rendering the
fifth
and eighth Books, have, with the
fame
Kindne/S, accepted a Tart in his
Burthen, andallowed him a Share
in their Reputation and SucceJ^.
THE
THE
CONTENTS.
BOOK L
CHAP.
I.
Of
the Origin
and Variety
of
moral
Entities.
Set.i.
2.
3
r
^HE
IntrodiiUion.
Man's
Life is governed hy moral
Entities.
What are moral Entities^ 'what is their
Caufe and End.
4. 'The Way
of
producing them, lloeir In-
fiitution. 'their Operation^ and from
whence.
f.
'Their Divifion.
6. Their State what.
7.
Their natural and adventitious State.
8. Peace and Wa'r^ hovj manifold ?
9. Determinate States.
TO. States having
reffet
to Time.
1 1
.
Certain Precepts concerning States,
I i. The Diviftons
of fingle Perfons.
1
3
.
Jnd compound.
14. Some Precepts about moral Perfons,
I
f
.
Feigned Perfons.
16. Moral Things.
17. The Divifion
of
moral Modes,
Titles.
Power.
Right.
The remaining moral ^alities.
Moral ^lantities.
How moral Entities
perifi.
18
ip.
20.
21.
22.
^3-
CHAP. It'
Of
the
Certainty
of
moral Sci-
ence.
Seft. I . TT/f O S T Men deny that there is a de-
*''''
monjirative Certainty in moral Sci-
ences.
2. What is a Demonflration.
3
.
The Principles
of
a Demonflration,
4.
Demonflration agrees to that moral Science
only., that treats
of
the Goodnefs or Evil
of
Man's ^Slions.
f.
The Uncertainty
of
moral Things is ob'
; ;
jeited.
6. Whether any Thing he good or had
before
any Inflitution.
7.
Whether Shame he a
Proof
of
it.
8.
Of
the Extent
of
moral Allions^ as to the
^ality.
S>.
GrotiusV Opinion
conftdered.
10."
In moral
^antities there is a Latitude.
X I
.
What is called morally certain.
CHAP III.
Of
the Underflanding
of
Man,
as it concurs to moral
A^
dions.
Sea. I.
2
VV
. n^WO Faculties
of
the
Underflanding.
.
*
What is the Genius
of
the rcprefen-
tative Faculty
of
the
Underfiand-
ing.
3
.
TloeUnderftanding naturalapprehends Things
moral rightly.
4. Confcience what it is, and hovJ manifold.
f.
A right andprobable Confcience.
6. Rules for
a probable Confcience.
7.
Rules how to
choofe Things profitable.
8. A dubious Confcience. ..
5?. Afcrupulous one.
10. Ignorance, what it is, and how manifold.
1 1
.
Error,
of
how many Sorts.
1 2. Error in lawful Actions
.
13. Speculative Error about
neceffary
Actions,
1
4. Or indifferent ones.
I
f
. Practical Error.
1 6. Error in an ill ASlion.
CHAP IV.
Of
the Will
of
Man, as it con-
curs in, or
confents to moral
Actions.
Sea. \.r\Fthe Acts
of
the Will.
2.
^
Of
the Liberty
of
the Will.
3.
That the TVill
mufl of
Necefjity he indiffe-
rent.^ I. e. not forced
to choofe good or evil.
4.
How the Will is inclined to good Things,
and to Goodnefs in general.
f
. Cer-
The
CONTENTS,
f.
Certain Difpofitions
of
the Body
ftir up the
Will.
6. As alfo fome Habits.
J.
And Pajfions.
8. Alfo Intemperance
.
p. Ahions
of
a mxt Nature.
IOj Involtintary andforced Anions.
CHAP. V.
Of
moral Actions in general, and
of
their Application to the
A-
gent, or their
Aptnefs
to he
imputed.
Seft. I. 117 HA t a mm-alA^on is.
'^
t. Its Matter.
3
.
Its Form^ivhere ive treat
of
a moral Caufe.
4.
A moral A^ion conftdered in it
felf
is a
pofitive Entity.
y.
The Caufe, or Ground ivhy a'tbing may be
imputed, or not.
6. Things not to be imputed to a Man are
Things neceffary.
7.
The Operations
of
our vegetable Faculties.
8. Things
impoffible.
p
Things compelled, -where mecr Execution is
treated
of.
Things done through Ignorance.
Things done, orfcen in a Dream.
Evils to come to
pafs.
But evil Actions proceeding
from an Ha-
bit,
miift certainly be imputed.
H01V other Mens Atlions may be imput-
ed to us.
lo
II
12
14
CHAP.
VII.
Of
the Qualities
of
moral
A-
&ions.
Set. i .
JJO
IV many an the Realities
of moral
*
-*
Anions.
2. A
neceffary lawful AUion.
The
Goodnefs or Evil
of
AElions, in what
they
conftft.
AgoodAilion mujl have all Things requi-
fite,
an evil one
if
made fucb^ by want-
ing one Condition.
GOD can't be the Caufe
of
any Evil.
Juftice
is either in Perfons or Actions.
What is the
Juflice of
Anions.
Univerfal and particular
Juflice.
Juflice diftributive.
Commutative.
GrotiusV Opinion about
Juflice.
AriftotleV
Judgment upon the
fame.
HobbesV Opinion
of Juflice
and Wrong.
What is an
unjufl Alion.
What an Injury is.
An Injury is done by Deftgn and Choice
only, where the Nature
of
a Fault
is treated
of
.
No Wrong is done to any Man that wills
it.
3-
f-
6.
I
9-
10.
II.
12.
n-
H-
If-
1(5.
7-
CHAP. VL
Of
the Rule
of
moral ABionSy or
of
haw in general.
Sea. I.
?
4
6
. A Law
differs from CounfeJ.
^^
z. From a Bargain, or Covenant.
And
from Right.
What a Law is.
What an Obligation.
Hro} it comes to
pafs that a Man is
obliged.
7.
No Man is obliged to himfelf.
8. He that is to be obliged,
mufl
have a Superior.
p. How a Man may lay an Obligation on ano-
ther.
It can't be done by meer Force.
Nor by any Excellency
of
Nature alone.
What gives greater Force to an Obligati-
on.
1
3. The Law-giverandLaw ought to be known.
14.
What are the
effential Parts
of
a Lawl
Wloat is the
Permifflon
of a Law?
The Matter
of
Laws.
Who is obliged by a Law?
The Divifion
of a Law.
-10.
II.
iz.
16.
x8.
CHAP. VIII.
Of
the luantity [or
Efiimation'\
of
moral Anions.
Sct. 1. '~pHE
abfolate Quantity
of
moral AEli-
*
ons.
1. What Intention is
required to make an
Atlion good before G O DV Tribw
nal.
3.
What Intention is good in human Judica-
tures.
4.
What is a perfeSt and
compleat Action.
f.
The relative ^antity
of
Actions.
C H A P.
IX.
Of
the Imputation
of
moral
A-
Ctions.
Set. I . r\ F actual Imputation.
^-^
2. Of
Imputation through
Favour.
3 Of
Imputation
from Debt.
4.
What can be effectually imputed
to ano-
ther.
f.
Merit and Demerit, what.
6. How the
EffcSls of
moral ABions may be
abolifhed.
BOOK
The
CONTENTS.
B O O K 11. C H A P. I.
//
is not agreeable to tide Nature
of
Man to live without Laws.
Sect. I . TUHelher a Lawmay be impofedon Man^
''
is doubtful.
1. What Freedom
of
TV'iU is.
5.
IVhatSfl
of
Freedopi
of
JVill.is in God.
4.
IVbat is ttoe Freedom
of
Meafis.
f.
Man too noble a Creature to he allowed
fiich a Freedom.
6. 'Tloe Corruption
offuch a Freedom.
7.
'the Variety
of
Mens 'Tempers.
8. Man's natural Weaknejs and Rudenefs.
CHAP. II.
Of
the natural State
of
Man.
Se6t. I
.
yl/f A N's natural State diverfly conftdred.
t.
*'*
HisMiJery.
3.
Its LavDS and Rights.
4.
'The State
of
Nature qualified.
y.
Whether it has an Inclination to War.
6. Hobbes affirms
ity and bis Reafuns are
produced.
7.
Mens Relation one to another concludes the
negative.
8. H >bbes'5 Reafons anfwered.
9.
Reajon is not to be denied its
Ufe in the
State
of
Nature.
10. The Manners
of
barbarous Nations do
not make up the State
of
Nature.
1 1
.
Natural Peace has mNeed
of
Covenants,
li. Natural Peace is not to be trufied to.
CHAP. III.
Of
the Law
of
Nature in ge-
neral.
Seft. I. 'T^HE Connexion.
*
2,
3
. The Law
of
Nature is not
common to Man and Beajls.
4.
The Object
of
the natural Law is not ne-
ceffary before there is a Law.
J",
6. Whether the natural Law is common
toG QXy and Man.
7, 8, 9. The natural Law does not depend
upon the Confcnt
of
Nations.
10, II. Whether
Profit be the Foundation
of
Law.
12. Whether the Law
of Nature appears
plain
from the End
of the Crea-
tion. '
13.
The Principles
of natural
Right
are
dif-
covered by the Light
of Reafon.
14. The true Original
of the Law
of Na-
ture^ is derived
from the Condition
of
Man.
if.
The
fundamental Laiv
of Nature.
16, 17,
18. Hobbes'i
Opinion is enquired
into.
19. The
former Original is
fufficient.
20. The Obligation
of
the Law
of Nature
is
from GOD.
z\.
Of
the.
Efiahliflment
of
the Law
of
Na-
ture.
zz. Some Things are
faid to be
of
the Law
of
Nature reduSlively
and improperly.
23.
Whether the Law
of
Nature is different
from the Law
of
Nations.
24.
A 'Divifton
of
the Law
of
Nature.
CHAP.
IV.
Of
the
Duties and
Terforman-
ces
of
Man towards
himf
elf ;
as well in Regard to the
Im-
provement
of
his
Mind,
as
to the Care
of
his Body
and
of
his
Life.
Sea. I.
T^T^ery Man is to take
Care
of him-
J^
/elf
z. In what that Care
conftfls.
3.
The Mind is to be inftruSled in Religion.
4
And all corrupt Opinions to be rooted out
of
it.
f.
The Knowledge
of
a Man's
fclf
is
neceffary.
6. AMan
fiould know his Soul and its
Offi-
ces.
7.
And how great its Abilities are.
8. Nothing above its Abilities may be attempt-
ed.
9. How much we are to labour
after Fame.
10. And how much
after Riches.
1 1
.
And about Pleafures.
1 2. Our
Paffions arc to be governed by Rea-
fon.
13. Of
our Study
for Learning.
14. Of
the Care
of
the Body.
If. Of
the
Ufe of Life.
I (5
.
What Obligations weare under to peferve
Life.
17. How
far Life is to be employed in the
Service
of
others.
18. Whether it is to be endangered
for
them.
19. Whether Self-murder is lawful.
*
b CHAP.
The
CONTENT
S.
CHAP. V.
Of
Self-defence.
Sel. I
. '^HEDefence of
a Man's [elf
h a law-
*
ful Vioknce.
2. And is ordarned by the Law
of
Nature.
3
.
JVhat Sort
of
Defence is alloived in a Na-
tural State.
4.
And what Sort in Cities.
f.
Whether it is lawful againfl
one that mi-
fiakes
6. the Time
for fuch Defence in a natural
State.
7, 8, p. AndhoTV tobe
fettledinacivilState.
10.
Of
n?vynin<j^ ar.y Part
of
the Body.
1 1. C/ Cuafllij.
12.
Of
a Box on the Ear.
13. Wheher a Miin is bound to
fly.
14. IVbether the Chriftian Religion commands
othcrwife.
If.
Slaughter committed in Self-defence^ is
guiltlefs.
\6. Of the Defence
of
our Goods.
17,
iS.
Of
a Night-thief
.
\().
Of fii-h Defence as is made by him who
has offered
the Injury.
CHAP. VT.
Of
the Right and Trmlege
of
Kece[fi:y.
Seft. I TJO
f^many Kinds
of
Neceffity
there are.
2.
^
Wherein the Right and Privilege
of
Neceffity confifis.
3
.
M^hat Right it gives every one over him-
feif^ and direSliy over others^
4.
And tvh.it indireclly.
f,
6, 7.
IVhat R.ght it confers over other
Mr,n Goods.
8. M^hat we may do to others Goods to pre-
ferve
our own Goods.
B O O K III C H A P. I.
That no Man he hurt
;
and if a
Damage he done to any Man,
that Reparation he made-
Sect. I . '~pHA T no Man ought to do any Da
*
mage to another., or his Concerns.
2. T'hat
if
any he done, it ought to be repair-
ed.
3
.
What a Dam/rge or Hurt is.
4.
irijo are they that do an Hurt.
f.
Howfuch
as hurt otheis are obliged.
6. How many Ways a Damage may be done.
7.
An Example
of
Reparation in a Murder-
er.
8. In one that has maimed another.
p. In an Adulterer.
10. In a Ravifloer.
11. In a 'thief.
CHAP. II.
That Men are to he accounted hy
Nature equal.
Se6t. 1 . 77
t^ery Man is to account another his
^
Etjual.
1. What is a natural^Efjualitjf.
3
. T'he popnhir Reafons fof it.
4
'the Opinion
of
juch an Equality makes
Men helpful to one another.
f.
IIoiv 'Things are to be divided by
it among
many.
6. Men
offend againfl it by Pride.
7.
Arid by Affronts offered to others.
8. Whether any be Servants by Na'rire
9. Whence has proceeded that Inequality that
is found among Men.
CHAP. III.
Of
the common Duiies
of
Hu"
mani.y.
Set. I . T^ Very Man ought to promote the Inter
efls
^
of
others.
2. And that either indefinitely.
3.
Or definitely by common Humanity.
4.
A
leff'er Sort
of
Examples., viz.
f.
Of
allowing a Way through another^s
Land.,
6. And for Carriage
of
Goods,
7.
Whether toll may be required
forfuch a
Paffage.
8
.
Of
our touching upon a jlrange Shore.
p. Of
entertaining Strangers.
10. Of
allowing a Settlement to Foreigners.
11.
Of
grantIf,g a Market.
1 2. /Whether a Man be boundto buy a Stran-
ger's Goods.
I 5. Ofpennittiug Marriages.
14.
Whether any
fingle Perfon
may be de-
wed what is common to all.
If. Of
Benefisence.
\6.
Of
a gri'Jefu!.,
\-j. And ungrateful Mind.
CHAP. IV.
Of
the Duty
of
heeping
Faith,
and the Diverfity
of
Ohligati-
ons to it-
Se6l. I . ""THE R E muff be Covenants and Agree-
*
ments in all huwan Societies.
Z. Covenants are to be kept.
3.
Obligations are natural or adventitious.
4.
Atheijm deftroys all natural
Obligations.
f.
A natural or civil Obligation.
6. What is the Force
of
each
of
them.
7. A
The CONTENTS.
7.
ji perpetual and temporary Obligation.
8. Obligations not mutual.
p.
Obligations perfeSlly or imperfe6Hy mu-
tual.
CHAP. V.
Of
the Nature
of
Tromifes and
Ta&s [or
Co'uenants'] in gene-
ral.
Seft. 1 . 11/
Hence adventitious Obligations
arife ?
2.
'^
What is Mr. HobbcsV transferring
of
Right ?
3.
No Man has a Right to all 'things, as
Mr. Hobbes aff'erteth.
4.
In what a transferring
of
Right
conftfis ?
f.
Ameer Affertion doth not oblige.
6. An imperfect Promife obligeth, but does
not gizr another a Right.
7.
Aper eSl Promife.
8. Prumijes in the future Tenfe give no Right.
p,
10, II. JVhether there be a Pwwer
of
0-
bliging in bare Palls., or Covenants.
CHAP. VI.
Of
tlce Confent required in
'making
'Fromijes and Ta&s.
Sed. I .
/^ Onfent is required to make
Promifes
^
and Palis.
1. Confent is fignified openly or tacitly.
3
.
Confentfuppojes the
Ufe of Reafon,
4.
Great t)runkennefs hinders it.
f.
Ofjuch as are under Age.
6. Of Error in Promifes.
J.
Of
Error in Promifes and Contrails.
8.
Of
Fraud.
p. A Sufpicion
of
a Cheat makes Palls void.
-i
0,
II, 12) 13. Fear makes
Promifes and
Palis void.
14. How Promifes.^ null in themfelves, may
be made vaiid.
If. Of
the Confent
of
the Perfon to whom a
Promife is made.
16.
Of
the Signs and Inflruments
of Con-
fent.
CHAP. VII.
Of
the Matter
of Tromifes and
Covenants.
Sefl:. I.
JI/' F
are obliged to things
poffible to be
'^
done only.
2. Promifes
of
things
tmpoffible are void.
3.
ImpoflibiUties which
arife about Cove-
nants.
4.
Uhether our
utmoft Endetivour is
fuffici-
entl
j-. Whether a Man be obliged
to hearfuch
^f-
fliltions as are above human Courage and
Strength
?
6. There is no Obligation to things
unlawful.
7.
Difjoncfl Bargains do not oblige., though
in
our Power.
8. Ndr
fuch as can't be performed., but by
famefoul AHion.
p. Whether things
difjoncfly given cah be 're-
covered ?
i o. Other Mens Goods are promifed itt vaiH.
II. 2m, and our own.,
if
they are under any
Obligation to another.
CHAP. VIII.
Of
the Conditions
of Tromifes.
Se6b. I . TJ O W many Ways is a Promife
* '
made
?
2. What is a Condition?
3.
A Condition refers to the Time prfent, or
the Time to come.
4.
A Condition is either cafual., arbitrary., or
mixt.
f
. An impoffible and unlawful Condition.
6. The Addition
of
Place.
7. The Addition of Time.
8. The Difference between
Bargains and con-
ditional Promifes.
CHAP.
IX.
Of
the Minifiers or
j4gents con-
cerned in contra6ling
Ohligati-
onsfor other
Men.
Set. I.
7/7
-E may promife and bargain
for ano-
'^
ther.
z. I^ow many Sorts
of Commifjions there are
?
3.
Flow
if
a Deputy die before he
hasfjnifj-
ed ?
4.
The
Difference between a Deputy and Me-
diator.
f.
How
far another may accept a Promife
for
us.
6. Heirs can't accept a Promife
for a Perfon
dead.
7. Of
a Burden annexed to a Promife.
8. The General Divifion
of
Palls., or Bar-
gains.
B O O K IV. C H A P. I.
Of
Speech, and the Obligation
which attends it.
Sed:. I.
r\FtheUfe
of
Speech.
2. ^
Of
the Diverftty
of
Signs.
3. Of
the Origin
of
Speech.
4.
Words
ftgnify
according to
Impofition.
* t> 2
I-.
Im-
The CONTENTS.
f.
Impofttion is attended with a CompaSl.
6. 1'his CompaSl is either general, or parti-
cular.
7.
Whence the Obligation
of
difcovering our
Mind to another.
8. What Truth is, and what a Lye.
J).
Every Untruth is not a Lye ;
and there-
fore not criminal.
10.
Of
the Right which is violated by lying,
and whence it is derived.
1 1
.
How
far
Part
of
the Truth may be ho"
neflly
conceal'd.
I z. Simulation in Things how far lawful.
1
5
.
Of
ambiguous Speech.
14. Of
mental Refervations.
I ^.
Hozv
far
we may be allowed in /peaking
falfly to Infants.
16. It is lawful to [peak what is
falfe, for
the Prefervation
of
others.
\j.
How
far the Covernours
of
States may
be indulged in giving out
falfe
Re-
ports.
18. In what Manner it is lawful to deceive
an ill defigning Curiofity.
I p. It is lawful to Jpeak falfe
to a profejfed
Enemy.
20. Whether a guilty Perfon,
arraigned, may
deny the Charge.
2.1. What the Advocates or Counfel may, in
this Refpei, do for
their Client.
CHAP. II.
Of
an OatK
Seft.
I.
'~pH E Sanliity
of
an Oath.
* // hat an Oath is.
2 It mhjl be taken only by the Name
tf
GOD.
4.
And according to the Religion
of
him that
fwears.
f.
Of
the Intention
of
him that fwears.
6. An Oath is an additional Bond
of
an Obli-
gation.
7. Of
Oaths obtained by Deceit.
8.
Of
Oaths obtained by Fear.
p.
Oaths to perform Things unlawful, bind
not.
10. Nor thofe
which hinder a greater Good.
11. An Oath doth not alter the Nature
of
thofe
Atlions to which they are join-
ed.
1 1. An Oath excludes all Cavils.
13.
But is not always to be interpreted
JlriSlly,
14,
Or without
fome
tacit Conditions and Li-
mitations .
I
f.
An Oath is to be explained by the Inten-
tion
of
the Impofer.
16. Of
an Oath made in another's Stead to
oblige him.
17.
How
an Heir is obliged by the Oath
of
the Dead,
iS. A Divifion of
Oaths, as, i. For Con-
firmation, z. In bearing
Witnefs.
3.
Decifive
of
a
Controverfy.
4.
Suppletor
y,
or Clearing.
ip.
Whether every Breach
of
an Oath is
Perjury.
20.
Of
the Ways
of difpenfing with Oaths.
CHAP. III.
.
Of
the Tower
of
Mankind o*
'ver
[the'\ Things
[of
the
mrld.']
Seft. I. n^HE great
eft
Part
of
the Law is em-
-*
ployed about worldly Things.
2. Man
ufes other Creatures bjG O DVOr-
dination.
3.
Man does no Injury by defraying Vegeta-
bles.
4.
Some Doubts about kilUngand eatingliving
Creatures.
f.
Which yet is maintained.
6. The
Abufe
of
our Right over living Crea-
tures is to be reproved.
CHAP. IV.
Of
the Origin
of
'Dominion
or
Troperty.
Sed. r. T^Roperty and Community
are'
moral
^
^lalities.
2. What is Property and Community.
3
.
That it has no Place, but where there are
more Men than one.
4.
It proceeds immediately
from an
Agreement
among Men.
f.
Of
the antient Community
of Goods.
6. By what Degrees Men departed
from it.
7.
That it was profitable to Mankind.
8. The Opinion
of
the Antients about the
Original
of
Dominion or Property.
p. Grotius'i 'Judgment conftdered.
,
12, 13.
The Arguments
of thofe
who deny the Community
of
Goods
iifed among the Antients.
14.
In what SenJ'e Dominion is faid to be by
natural Right.
If.
How far Infants are capable
of
Pro-
perty.
10, II, 12,
CHAP. V.
Of
the
OhjeB
of
"Dominion
and
Tropertjf,
Seft. I . TU
HA T is repired to make Things our
wr
own.
I. Things
own.
The CONTENTS.
2.
Things confumed in their
life are in vain
made our own.
3.
ji Thing become our oivn JJjould be capable
of
keeping.
4.
The
Ufe of feme Things made our own is
common to all.
f.
The divine Grant is not contrary to our Do-
minion over the Sea.
6. Reafons againfi all Property on the
Sea.
7.
What the Ufe
of
the Sea is.
8. What Parts
of
the Sea are made a
Pof-
fejfion.
p. The main Ocean can't be in any Man^s Do-
minions.
I o. How far
Navigation and Commerce on
the Sea is
free.
CHAP. VI.
Of
Occupancy.
Se6t. I. "T^ HE
feveral Ways
of
acquiring Do-
*
minion.
z. The original Methods
of
acquiring it.
3
.
Occupancy is gained in whole^ or by Par-
cels.
4.
The
PoJfeJJion of
Moveables depends on the
Difpofal of
the chief Govermur.
J".
Infame Places the catching
of
Wild-beajls
is allowed to every one,
6. In other Places it is the Privilege
of
great
Men only.
7.
Whether he that hunts contrary to the
Law, has a Property in the
Beafl he
takes.
8. When Things occupied are underfiood to be
immoveable.
$j. When they are moveable.
10. Whether a Wild-beafl becomes mine as
foon as Ihave wounded it.
1 1
.
Whether the Fifli are ours, that are in
our Ponds.
iz. Things left become immediately the fir
ft
Occupanfs.
13. Of
Treafures.
14, Of Poff'effions
obtained by War.
CHAP. VII.
Of
additional Acquirements.
Se61:. I .
rj
O Wmany Sorts of
Additions.
2.
*^
'Mditions properly belong to the Own-
er
of
the Thing.
3.
How many Sorts
of
Fruits.
4.
The young ones
of
Beafis belong to the
Owner
of
the Dam, or Mother.
f.
Things planted
pafs
with the Soil.
6. How Buildings go along
with the Soil.
7.
The Paper goes along with the Writing.
8. The Canvafs with the Pi5lure.
9. The Purple with the Garment.
10.
Of
new Models in Things.
1 1
.
Of
whole Countries
left by
Waters.
12.
Of
Fields belonging to private
Perfons.
CHAP
vm.
Of
Right over other
Mens Goods
or
ToJTeJJions.
Set. I . A
Man may have a Right over other
"
Mens Goods diverfe Ways.
2. Ho%v many Sorts
of Right we have over
others Goods.
3.
The Right
of
holding in Fee [Simple.
'\
4.
The Right
of
a Ground-plat.
f.
The Right
of
an honefl
Poffeffor.
6. Services, what, and
of
how many Sorts ?
7.
The
Ufe
with the
Profits.
8. The bare
Ufe.
p. The Habitation.
10. Tloe Works
of
Servants.
1 1
.
The Services
of
Cify-E/lates.
12. And
of
Country-Farms.
CHAP. IX.
Of
transferring
of
'Property
in
general.
Se6t. I . T Tproceedsfrom Property, that we may
*
alienate a Thing,
2. The Confent
of
two Perfons is required in
every Alienation.
3.
Which is to be exprejfed by fame Signs.
4.
An Alienation is made entirely, or upon
Conditions.
f.
Whether Livery be required in every Alie-
nation.
6. Property is either accompanied with, or
feparated from Poffcffion.
7.
M^hat, and how manifold Poffeffion is.
8. How Property is gained by bargaining only.
p.
True andfeigned Delivery.
CHAP. X.
Of
Wills and Teftaments.
Sea. I.
Ho
Wmany derivative Ways
of
Ac-
quifition ?
z. Grotius'j Definition of
a Will is examin-
ed.
3.
JVhat is a Will to us.
4.
Whether Wills proceeded from the Law
of
Nature, is doubted.
f.
The Antients
difpofed of
their Goods while
they were living.
6. How far Wills proceeded from
the Law
of
Nature, and how
far from pofitive
Laws.
7.
An Inheritance given by Will, wantingdue
Form, may be entered upon,
if
none op-
pofe it.
S.Buf
The
CONTENTS.
8. But the Heir may null that M^ill, as if
his
Anccflor had died inteftate.
p. Donation in Cafe of
Death.
CHAP.
XI.
Of
Succe[fions
to Terfons who die
mtejiate.
Sea. I
1 1 . Ufiicapion
is
alfo
in Ufe
among
diverfe
Nations.
CHAP. XIIL
Of
the Ohligations which
arife
immediately
from
Troperty.
C Uccefjion
to Perfons
that die inteftate^
^
depends upon a Frcfimption
of
their
l-Vills.
z. Yet a] it is agreeable to Reafon.
3
.
Children are preferred before all others.
4.
Parents are to maintain their Children,
f.
IVbat is meant by Maintenance.
6. IVho are to be accounted Children ?
7.
IFhat :-nore than Maintenance is due to
Children., and ivhy ?
8. It is not neceffary that Goods flionld al-
ways be equally divided among Chil-
dren.
9.
Legitimate Children arc to be p-ef
erred be-
fore natural.,
10. Proi-ided that the Father owns them^
11. Or does not diftnherit them.
It.
Of
the Right
of
Reprefentation.
13.
Parents mtijl fuccecd for
want
of
Chil-
dren.
14.
Jnd for JVant
of
them., the neareji Re-
lations in their Order.
I
f.
Whether Friends may be preferred before
Kindred
?
I (J.
Or Benefavors before Relations ?
17.
"the Order among Kindred.
18. the Civil Laivs alloiv a large Power
of
difpofing Eflates.
1 9. fhe Heir
of
the Deceafed., how far
he is
obliged to pay his Debts.
CHAR XII.
Of
Usucapion
or Trefcription.
Sea. I.
'
Fery one is obliged to abflain from an-
'
other's Goods.
z. Others Goods kept by us are to be reflor-
ed.
5
.
M^hich is proved.
4.
Andilluflrated.
f.
Contra^s made about others Goods are
void^ as
foon
as they are known.
6. FVhat is gained by another's GoodSy mujl
be rcflored.
7.
Ayi honejl
PoffeJ/or
is not bound to reflore,
if
the Gotds are decayed., or lofl.
8. But he is bound to rejlore the prefcnt
Fruits.,
p. And fuch as are fpent., if
he
mufl have
fpent others
of
the like Value.
10. But not them he has neglected to ga-
ther.
\\. He is not obliged., who has given away
what was given him., but with a Di-
flinition.
1 2 . Nor
if
he has fold what he bought with
a DiJlinElion alfo.
15.
Hotv he may recover the Price., who
has really fold another Man's Goods
?
14.
JVloether
if
a Man buys another's Goods.,
he ought to refore them to the Sel-
ler i
If.
He that has another's Goods^ and knows
not the Owner., may keep them.
16. Whether what is given
for a bad Rea-
fon muft
be reflored'i
BOOK V. CHAP. I
Of
Trice.
Sea I JJ
OWUfucapion and Prefcription dif-
Sea. i.
J
Fter Property, the Meafure
of
Things
iX
fer
^'''^fl
^^
introduced.
fer
2.
What Ufucapion is by the Roman Laws,
and where it takes Place.
3.
Howfar
bonejl Dealing is required in Ufu-
capion.
4.
C ntinual Poffeffion
is required.
r. T'he Rcafons of
introducing Ufucapion.
6. Whether the Law
for Ufucapion be pe-
nal.
7.
Many refer Ufucapion to civil Right.
8.
Whether Ufucapion can arife from
a tacit
Dereliction
of
the Proprietor.
9.
It feems
to depend upon the tacit Agreement
of
Nations.
1 . How Ufucapion may be prejudicial to Chil-
dren not yet bom.
1. What is the moral ^antity
of
'Things.
2 . How many Kinds
of
Price.
4.
What ii the Foundation
of
the
common
Price
of
Things.
f.
Many profitable
Things have no Price,and
why
?
6. Why the Prices
of
Things rife.
7.
Of
the Price
of
Fancy.
8. Of
the lawful
Price.
9. Of
the common Price.
10. The Caufcs why the common Price
rifes
andfalls.
1 1
.
The common Price is not
fufficient for the
Commerce
of
Man's Life.
1 2
.
Hence an eminent Price wasfet
in Money.
13. Which
The CONTENTS.
I
J.
Which
^
for
the
mofl
part, ivas made
of
Metals.
14.
How far the Gozernours of
Societies may
fet
an EJlimate upon Money.
If.
Info
doing, they ought to have Refpe5i to
Land.
16. 'The Falue
of
Money is alfo
fubjeSl to
Alteration.
an
CHAP. II.
Of
Contra&s in general, that
prefuppofe
the Trice
of
Things.
Se6t. I. ^~nHE Difference between Bargains and
*
Contrails, according to Mr. Hobbes,
1, According to the Interpretation
of
the Ro-
man Law.
3.
Some Advice about what they have deli-
vered.
4.
Qur Opinion about the Difference.
f.
Contrails are divided into fuch as oblige,
I. one Party only
j
and i.fuch as oblige
both Parties.
6. And into real, or hare Confent, virbal,
and in Writing.
7.
In fome particular Name, and without a
Name.
8. Beneficial and chargeable.
p. How many Sorts
of
chargeable ContraEis.
10.
Of
mixed Contrails.
CHAP. Ill
Concerning the Equality that
ought to he
ohferi^ed in charge-
able Contracts.
Seft. 1. '~p HEEquality to be obfervcd in charge-
*
able Contrasts
.
2. The Faults
of a Thing are to be
difco-
vered.
3.
The Nature
of
a Contrail requires it.
4.
Whether what concerns not the Thing it
felf, mufi
be
difcovered.
f.
The Faults known on both Sides need not
be mentioned.
6. No Man is to be feared into a ContraEl.
7.
In gainful Contrails Equality need not to
be obfervcd.
5. In a chargeable Contrail nothing is
fuppof-
ed to be given.
5). How Inequality not
fore-feen is to be cor-
reEled.
10. Whether
Over-reaching
in Buying be
lawful.
CHAP. IV.
Of
gainful Contra&s in
parti-
cular.
Se6t. r. 'WHAT a
Commiffion is.
z.
*^
Thefpecial RefpcSl had to it by the
Romans.
3.
The Pcrfon conimiffioned ought to be very
diligent.
4.
How
far
he ought to be indemnified.
f.
Whether a Commiffion can be
Jatisficd by
an Equivalent.
6.
Of
a Loan, and how it
differs from a vo-
lunt-iry Grant.
7. Of
a Charge.
CHAP.
V.
Of
chargeable
Contra&s
in par-
ticular
J
and,
fir/i.
of
Bar-
tering, Buying and
Selling.
SeV. \. r\F Exchanging or Bartering.
2:
^ When a Contrail
of buying and
Jell-
ing is compleat.
3. Of
the
Lofs or Gain
of
a Thing
fold.
4. Of Agreements commonly
joined with
Sales.
f
.
What the Buyer otighi to
perform to the
Seller, and e contrario.
6.
Of
buying in Hope and Expectation.
7. Of Monopolies.
CHAP.
VI.
Of
Renting
and
Hiring,
Se6t. I. "WHAT Things Hiring hath common
''^
with Buying.
2. The certain
Ufe of
a Thing,
if it be inter-
cepted, tends to the
Lofs
of
the
Leffor,
3.
The uncertain regularly tends to the
Lofs
of
the
Leffee.
4.
Whether the
fame Workmay be let to many
together.
CHAP.
VII.
Of
the Loan
of
a con
fumeable
Commodity.
Se6t. I
.
TUHA T a Loan is, and what a con-
"
fumeable Commodity.
X. A
The CONTENTS.
2. Adouble Ufe of thefc Things.
3.
For 'what 'Things ijje are wont to be credited.
4. Of
tacit Lendihg.
f
. TVhether Lending he an Alienation.
6. What
if
Money be altered in the intrinfic
Faluc.,
7.
Or in the extrinftc Value.
8. The DoHrine
of
the Jews
about Ufury.
p. That Ufury is not contrary to the La-w
of
Nature.
10. T'he Arguments to the contrary are
anfiver-
ed.
1 1
.
Some Contracis are much thefame
as U-
fury.
1 2. The Evafions ufed to avoid the Difgrace
of
Ufury.
'chap. VIII.
of
TartnerJJjip.
Seft. I . TJ O JV many Ways Partnerjhip maybe
H
bczun.
2. Money and Labour are balanced feveral
Ways.
5
. Irregular Partnerflnp.
4.
A Partnerfliip in all Goods.
CHAP. IX.
Of
Contra&s depending on
Chance.
Seft. I.
J)
Argains mixt -with Chance.
2.
-^
They are
ufed
as well in Peace,
5.
As in War.
4.
Contra&s in laying Wagers.
f.
Contracts in Play.
6.
Of Rafflings.
J.
Of
Lotteries.
8.
Of
Infurance.
CHAP. X.
Of
accefjory
Bargains,
I . A Cceffory
Contrails
of
tivo Sorts.
->
"
Variety
of
additional Bargains.
Sea
3.
An additional Bargain.,
if
it's lewd, is
void.
4.
Sometimes it diforders Buftnefs.
f.
Being prefently added., is valid,
if
other
Things agree.
6. Being added, afterfome
Time, inthe Nega-
tive, is liable to an Exception.
7.
Being affirmative, howfar
it is good.
8.
Of
trupng.
p.
A Surety can't be engaged
for
wore than
the
Debtor,
10. But he may be more
fir
iSlly bound.
11. What Advantages the Law
allows a
Surety.
1 2. Of
Bails.
13.
The Ufe of Pawns.
14.
A Pawn is either
fruitful., or barren.
I
f
.
IVhether a Pawn may be gained by
Ufe.
16. What is the
Difference between a Mort-
gage and
d Pawn.
CHAP. XL
By what
Means Obligations
founded upon Compact
may
be dijjohed.
Sed;. I. 'T'HE
moft
natural Way
of difohing
*
an Agreement, is toperform the Thmgs
agreed on.
2. M^hat
if
one pays a Debt
for
one who knows
not
of
it
i
3.
To whom we
mtifl pay.
4.
What
mufl
be paid.
f
To whom,
and by whom Compenfation may
be made.
6. Where it may he
ufed.
7.
A Debt is paid by a Releafe.
8. How an Obligation is made void by a Dip-
agreement.
9.
The Knavery
of
one Party
frees the other
from his Obligation.
10. As
alfo a Change
of
that
Condition
on
which the Obligation was
founded.
1 1
.
How an Obligation
ceafes by
Time^
1 2. And how by Death,
1.3. Of
Delegation.
14. Of Confufion.
If. Of
Novation.
CHAP. xir.
Of
the Interpretation
of Com,'
pads and Laivs.
Seft. I. ""pHE Reajon
of
the Order.
z.
*
The
Neceffty
of
a ri^,Jt Interpret
a'
tion.
The Words are ordinarily to be under
flood
according to the common
Ufige.
jind
4.
JVords
of
Art according to the Art.
f.
ConjeSlure is
fufficient, when
Words
are
dubious,
6. Or feem
to contradiSi one another.
7.
Conjecture
mufl be taken
from the Matter
treated on,
8. From
The
CONTENTS.
8. From the EfeEl^ or
p.
From the Coherence, Origiml, and Place.
10. -How the Senfe may be gatheredfrom
the
Reafoil
of
them.
1 1
.
Some IVords have both a large andjlril
Signification.
1 2
.
Some 'Things are favourable., others odious.
13.
Rules arc to be made from thofe Diflin-
ttions.
14.
Jn Example
of
two who came to the
Goal together.
If.
How this Order is to be interpreted. No
Man
muft
wage War without the
Corlirnand
of
another.
\6. Of
thefe Words.,
Carthage fhall be free.
1
7. AConjetturc when a Law mufl be enlarged.
18. Of
Tricks to evade a Law.
ip. A ConjeSiurc when the Law ou^t to be
refrained upon the Account
of fomc
DefeSl in the Will
of
the Law-giver.
zo.
{An Obfervation upon this ConjeElure)
21. Orupon the Account
of
fome
Accident in-
confiftent
with his Will., as where it
is either unlawful,
22. Or too grievous in RefpeH: of
the Per-
formance.
23*
What
if
two Laws are contrary one to
another.
CHAP.
XIII.
Of
the Way
of
deciding Con-
troverftes in the JJberty
of
JsLature.
Se6t. I. 1J7 HAT is due to others is willingly to
''
be performed.
z. In a State
of
Nature there is no Judge.
3.
Controverfes which can't be decided by
Conference are to be referred to Arbi-
trators.
4.
There is a Covenant between an Arbitrator
and the contending Parties.
J".
Arbitrators, in a Doubt, are bound tojudge
by Laws.
6. Arbitrators are not to judge
of
the Pojfeffwn.
7. Of
the Mediators
of
a Peace.
8. What
if
Deeds be
loft.
p. Of I'FitncJfes.
10.
Of
the Execution
of
the Sentence.
BOOK VI. CHAP. I.
Of
Matrimony.
Sea. I . HTHE Coherence.
2.
"*
Matrimony the Propagation
of
Man-
kind.
3
.
Whether there be an
Obligation to marry.
4.
A wandring
Lufi oppofite to the Laws
of
Nature.
f.
Mankind not to be propagated but by Mar-
riage.
6. What Obligation may be laid on Men to
marry by the Laws
of Nations.
7.
What it is by the Law
of
Nature.
8. How
far the Laws
of
Nations may order
concerning Marriage.
p.
The diforderly Marriages
of
z/:;^ Amazons.
10. The Laws and Rights
of
a regular Mar-
riage.
1 1
.
Whence arifes the Man's Power
over the
Wife.
i 1. Whether it be
befowedimmediately by God.
I
3 . Whether it necejjarily implies a Power
of
Life and Death.
14. Whether Confcnt, not Bedding, makes the
Marriage.
If.
No Woman may marry more than one
Husband.
1(5. Polygamy in TJfe among many People,
I
J,
18. Whether it be repugnant to the Law
of
Nature.
I p. The true Nature
of Marriage is
for one
Man and one tVoman to be joined to-
gether.
20. // is not lawful rafloly to part Man and
Wife.
21. Adultery and wilful Defertion
make a.
Marriage void.
22. Whether an intolerable ill Nature is a
Reafonfor Divorce.
23.
The Opinion
of fome Men about the
Senfe
of
the Law
of
God about Di-
vorce,
24. Particularly
of
Mr. Milton.
If.
Marriage requires fuitable
Salifications
of Natures.
16. An Error concerning Matrimony.
27.
A married Woman can^t rightly marry
another.
28. Marriages with Kindred, why forbidden ?
2p. How it comes to
pafs
that Men are a-
ftoamed
of
their Genitals.
30. Of Nakednefs.
3
1
.
The Original
of
natural Shame.
32.
Marriages between Parents and Children
wicked.
3
}
. The Opinion
of
the
Jews about it.
34. Of
the Marriages
of
Brothers andSifters.
3 f.
Of
the other Degrees forbidden.
36. Of
thefccondary Wives.
CHAP. II.
Of
Taternal Tower.
Set. I. ^T^HE common Opinion
of
the Original
*
of
paternal Authority.
*
c 2. Ac
The
CONTENTS.
a.
According to Hobbes, the Original Pow-
er over Children is in the Mother^
5
.
And
from her is derived to others.
4.
On what Reafon
paternal Authority is
grounded.
y.
How far the Father has more Right than
the Mother.
6. How great the Poiver
of
the Father is, as
fuch, over his Children.,
7.
Both in their Infancy and Childhood.
8. How far
Children are capable
of
being go-
verned at this 'Time.
i).
Whether a Father may fell
his Son.
10.
Of
the Obligation
of
Children made
free.
1 1
.
What Power Fathers have over their
Children., out
of
civil Societies.
I z. What Power in civil Societies.
1 3.
Ho%v this Power is
loft.
14. Whether Children ought to have their
Parents Confent to their Marriages.
CHAP. III.
Of
a Majlefs Tower.
Se<5i:. r.
Jf^HA
T is the Relation
of Mafter
and
^
Servants.
z. Servitude was not ordained by Nature,
3.
Nor by God immediately.
4.
The Original
of
Servitude feems to have
been from Contrast.
f.
War iriade the Number
of
Servants
greater.
6. What is the Duty
of
Captives to their
Mafters.
7.
They are
almofl of
the fame
Nature with
thetr Goods.
8. Tet an Injury may be done them.
p. Of
the Children
of
Servants.
10. The Inconveniences
of
Servitude.
1 1
.
How many Ways a Servant may become
free.
BOOK VII. C H A P. I.
Of
the Caufes and Mothes in-
ducing Men to ejtahlifj civil
Societies.
Sect. I . T
Ntroduclion.
1.
*
Mannaturally loves
himfelf more than
Company.
3.
Tet the Love
of
Company does not im-
mediately infer the Love
of
civil So-
ciety.
4.
Many Fices in Man prejudicial to
civil
Union.
J-.
Whether civil States arofe in the World
by natural Confequencc.
6.
Whether Indigence was the Caufe
of civil
Eftabliftrments.
7.
The true Origin
of
civil Government.
8. The bare Reverence
of
the Law
of Nature
not
fufficient to fecure the Peace
of
Mankind,
p.
Nor the
file
Force
of
Arbitrators
; or Co-
venants.
10. Difference in Opinion greatly
prejudicial
to the Peace
of
the M^orld.
1 1
.
Men need a much more fevere
Reflraint
than the Law
of
Nature only.
CHAP. II.
Of
the inward
Stru6ttire
and Confiitution
of
civil
States.
Seft. I
.
yTf E N only are a
fufficient Defence a-
^^^
gainft 'the
Wtckednefs
of Men.
z. To this End it is necejfary that many
fljould.
join together.
3.
Thofe who joined in this
Manner
ought
to
agree in their
Refolutions.
4.
Tlie
Difference between the Polities
of Bees
and Men.
f.
An Union
of
Wills and
of Strength nc
ceffary to a civil State.
6. This Union produced by intervening
Co-
venants.
7.
The
Jirft
Covenant, with the Decree
fol-
lowing upon it.
8. The fecond Covenant, giving the
final Per-
fe5lion to a civil
Eftablifloment
.
p.
The Reafonfor ivhichHohbeszvill
acknow-
ledge but one Covenant.
10. This
Reafon fufficient.
11, 12. Vlohhes's Arguments
anfwered.
13.
Acivil State how
defined.
14. In a Monarchy, the Will
of
the Prince
is the Will
of
the State.
If.
Under other Forms
of Government,
ac-
cording to the regular
Courfie, the
Community is concluded by the Fotei
of
the major Part.
\6. This Rule admits
of a Limitation.
17. Of
Equality
of
Votes.
18.
Of
joining, or dividing
Suffrages.
1 9- Hoiv many Per
fins
at
leaft
are requiftte
to a ruling Council.
20.
Civis,
The C O
N T E N
T S.
10.
21.
zi.
Civis, or a Member
of
a civil State.,
"who may p-operly be
fo
termed.
Subordinate Bodies.,
of
how many Kinds.
Invefled
'with -what Rights and Privik'
ges.
Of
unlawful Bodies^ and Faciions.
'the peculiar Duties incumbent oTi the
Members
of
civil States.
14.
Grotius among the
reft ; -wkofe Opinion
is particularly
dijcujfed.
CHAP. V.
Of
the
Forms
of
Common-
wealths.
CHAP. III.
Of
the TroduUion
of
chil So-
vereignty, or Majefiy.
Sea.
Sea. I sovereignty., the Refult
of
thofe Cove-
^
nants by which the publick Body was
firji
united.
1. ^is done by the divine Will and Appro-
bation.
5.
Whether the
Majefty of
Princes is imme-
diately derivedfrom
GOD.
4.
Ithe Arguments which fome make
ufe of
to
prove the Affirmative.
f.
Civil Authority not the
EffeB of
War.
6. Whether a Father
of
a Family may., with-
out any new y/S, commence a Prince.
7.
How a Vajfal., or Feudatory., may become
a Sovereign Lord.
8. Whether a Free State., or a Monarch., re-
figning
their Power into other Hands,
are the Efficient Caufe of
the Sovereignty
produced.
if. WIoo has properly the Power
of confer-
ring the regal T'itle.
CHAP- IV.
Of
the Tarts
of
Sovereignty
and their natural Connexion.
Seat
JN
what Senfe the fupream Power may
befaid to
confift of
Parts.
"The Icgiflative Power.
The vindicative Power.
Thejudiciary Power.
The Power
of
War and Peace^ and
of
making Leagues.
The Right
of
appointing Magiftrates.
The Right
of
levying Taxes.
'8.
The Right
of
examining Dolrines.
p. Government a more firiSl
Obligation than
bare compact.
Who may properly befaid to hold a Part
in the Government.
The Connexion
of
Parts in the fupream
Authority demonftrated,
IZ. And illuftrated.
1
3. Many are for
dividing thofe Parts.
z.
3-
4-
r
6.
7
10,
II.
I. 'T^HE Accidents
of
civil States cannot
*
conflitute a new Species.
z. Irregular Forms and
Syftems of Govern-
ment.
3.
The three Forms
of
regular Govern-
ment.
4. Democracy
fccms to be the
mofl antient
Form.
f.
Democracy no
kfs invefted with
fupream
Power., than Monarchy.
6. Democracy how conftituted.
7.
The ordinary Requiftles
of
Democracy.
8. How
Ariflocracy is eftahlifloed.,
9. And how Monarchy.
10. In Bodies politick there may be Vices
of
Men., and Vices
of
State.
Yet
thef'e compofe not a peculiar Species
of
Government.
As neither do the various Accidents
of
Democracies and Ariftocracies.
Of
the mixt Governments
propofed by
modern Authors.
14.
The Nature
of
irregular States.
II.
iz.
3-
This- irregularity be
ft
illuftrated by Ex'
amples.
States which admit
of
Provinces do not
hence become neceffarily
fyftematical.
Of Syftems., occafioned by a common
Prince.
18.
Of Syftems., compofed by League and
Confederacy.
Of
the Communication
of
Councils and
Bufmefs
in thefe united Bodies.
Whether the greater Part ought here to
conclude the lefs.
How thefe Syftems
are diffolved.
The feveral Forms
of
Government com-
pared.
CHAP. VI.
Of
the AffeBions.,
or Troper-
ties helongtng to Sovereignty.
If
16
17
ip.
zo.
ZI.
zz.
Sea. I.
z.
3-
4-
HO
W the ruling Power in a State
comes to be filedfupream.
Hethat is invefled with this Povjer is unac-
countable.
And above human Laws.
Of
the DifiinStion befween real andperfo-
nal
Majefty.
*
c z
f.
That
The
CONTENTS,
". j'hat a King may be fiiperior to a whole
People demonjlrated.
6. The Arguments to the contrary refuted.
J.
Abfoliite Governments.^ ivhat.
8. Not occurring alike in all Forms
of
civil
Eftablifiments.
5).
Limited Governments, hotv occaftoned.
\o. Founded on 'ivhat 'Covenants.
11. In isobat 'Refpett the different Parts
of
the Government may be limited.
1 2.
Of
the Power
of
Efiates, Senates, and
Councils.
13.
Hobbes anfwered.
14.
The various IFays
of
holding the Sove-
reign Power.
If.
A temporary Sovereignty, "whether
pof~
fible.
16. Of
patrimonial Kingdoms.
17. Of
Kings ajfitmed by the free
Act and
Grant
of
the People.
CHAP. VIL
Of
the Ways
of
acquiring So-
'vereign/f,
ejpedaily Monar-
chical.
Set. I. nnFIE IFay
of
acquiring Sovereignty in
*
Democratical States is unifortH.
2. In Ariftocracies and Monarchies, vari'
ous.
5
.
Hovj far
Government may be feized on by
jufi
Force.
4. Hoiy far
by
unjnfi
Force.
f.
How a Perfon may be rckafed from the
Governtnent
of
another.
6. Ele&ion
of
hoiv many Kinds.
7.
Jnter-regnum, ivhat.
8. And Inrer-rcges.
p. Hobbes examined.
10. The Caje
of
Pollhumous
Iffue,
in the
hereditary Line.
11.
Of
SucceJJion in a patrimonial King-
dom.
1 2
.
Of
the fame in Kingdoms ejlablified by
the free
Act
of
the People
; and this
either fimply or Hereditary,
15. Or lineal,
;
1
4. Or tranfvetfe.
If. Of
the Judge of
Controverjies arijing in
the Cafe vf
Succgffon.
CHAP. VIII.
That the fupream
Tower is to he
held [acred in civil States.
Seft. I. ^T~^H
E fupream Power net to be reftfed
'
in laivfnl Commands.
2. Whether a private Member
canfuffer Lu
jury from
the State.
3.
Subjedls very prone to
unjuft Complaints
againfi their Govermurs.
4.
Hoia many Ways a Sovereign may injure
his Subject.
f.
Whether, in the Cafe
of
grievous Injury
and Opprefjlon, a lawful Prince may be
refijled.
6. The Name
of
a Tyrant does not
jufiify the
Ufe vf
Violefice in the Subject.
7.
GrotiusV Opinion.
8. No Princes are to be heldfacred, but
fucb
as are truly invefitd with Royal Authe-
rity.
p. In "What Cafe an Ufurper may
be
acknow-
ledged
for
a
lawful Prince.
10. Hozv far
the Commands
of
an Ufurper
oblige the Subjects while their lawful
Sovereign is alive, though in an Ex-
iPd Condition.
CHAP. IX.
Of
the 'Duty
of
Sovereigns.
Sea. I
z.
3-
r-
6.
7-
^HE
Office
and Duty
of
Sovereigns,
-*
whence to be difcover'ed.
The Obligation that Princes have to be well
inflru&edm it.
The Peoples
Safety is the
fupreme Law.
The SubjeSls Ore to be trained up in good
Manners.
Fit Laws ^e tb be enaSled,
Andput in Eaecktion.
Penalties are to be inflidied with
Jujlice
and Moderation.
8. T/je Subjetls h^e tbbe veflrained
from mu-
tual Injuries.
p.
An able
andhoncJIMinjfiryJs to be -em-
ptoyed in State
Ajff'Aifs.- ,
"^^'^
0-*
Thies are to. he )equally ^ik,\ aSH^htly
gathered.
The Wealth
of
the State is to. be advaxr
ced.
.
.
^
FaSliofis to be prohibited.
Afufficient Force to be kept up
for
the
oppofing
of
Foreign Invaders.
Id.
II.
12.
13-
BOOK VIII. C HA P. I.
Of
the Tower to diredt the
A-
Bions
of
the SuhjeCt.
OF
the Nature
vf
divil Laws in gene-
ral.
'
.
2. Whether a civil Law may eontradil the
natural. . .rj
I
3. Whc-
Sea.i.
The C O
N
T E N T S.
*. IVhethef the Definition
of
Cmnes is left
arbitrarily to the Detertnination
of
the
civil Law.
4.
Ilje Precepts
of
the Decalogue whether ci-
vil Laws.
f.
Pf^hether any 'Thing jujl antecedently to the
civil Laws.
6.
Whether a
fmful
Command
of
a Supe-
rior may at any Time be obeyed without
Sin.
J.
No Sin lawfully committed upon the Com-
mand
of
a Superior.
8. Whether a SubjeSl may lawfully bear
Arms in an
unjuft
War^ at the Command
of
his Prince.
CHAP. II.
Of
the
Tower
of
the So^vereign
over the Lives
of
the Suh-
jeCt
for
the Defence
of
the
Commonwealth.
Set. I. T^HE Sovereign may hazard the Lives
^
of
his Subjects in TFar.
2.
Wloether lawful to refufe
bearing Arms
upon a Compal with an Enemy.
3.
No Man to make himfelf unfit
to bear
Arms.
4.
"fhe Obligation
of
a Soldier^ what.
f.
U^oether the Commonwealth may give up
an innocent SubjeS.
6. The Commonwealth may deliver up a Sub-
ject
for
an Hojiage.
CHAP. HI.
Of
the Tower
of
the Sove-
reign over the Lives and
Fortunes
of
the Suhje6i in
criminal
Cafes.
Seft. I. rr*HE Power
of Life and Death whe-
^
thcr and how transferred frovn par-
ticular Men to the Commonwealth.
z. In a Liberty
of
Nature no human Pu-
nifhment
:
3.
But only in a Commonwealth
.
4. Punifloment^ what.
f.
Punijlnng^ to wImI Species
of
Jujlice re-
ducible.
6. That one Man jliould puniflo another^ not
unjuf:.
7. The Power
of
punijliing where lodged.
8. Human Punifment
ought to have fome
End.
9.
The
firfl
End
of Punifment the Amend-
ment
of
the
Offender.
10. Whether
lawful for
any
Man to correal
any.
1 1
.
The fecond End
of Punifjment^
Cauti-
on
for
the injured.
I z. The third, the general Security.
13.
How
far
private
Men are allowed to in-
fliSl Punifhmcnt.
14. What
Offences it is
needlefs
for human
J
u
(lice to punifJj.
If.
Wl]ether lawful at any
Time to par-
don.
1 6. How
far
this is
lawful antecedently
to
the penal Law.
17. How
far after It.
1 8. The ^allty
of
a Crime to be eflimated
from the Object
of
it.
I p. And
from the Paffion that gave the Im-
pulfe
\
20. And
from
the Force
of
the
Inclination
and Intention
;
21. And
from the Objlinacy and
Refolutlon
of
the Criminal
j
22. And
laflly from Cuftom and
Habit
.
23.
What to be regarded in
determining the
^antlty
of
the
Punlfloment.
24.
The Meafure
of Punif.oments.^ what.
zy. In Punlfljmeut the
Perfon
of
the Sufferer
to be regarded.
26. The Jewifli Law whether an
univerfal
adequate Meafure
of Punifliment.
27. Of
Retaliation.
28. A Corporation or Community.^
how pu-
nifbed.
25?. Tloe Crimes
of
Corporations wear out in
Courfe
of
Time.
30.
Every
fatal Evil not
an human Punifh-
mcnt.
31. Difference between Damage
fuffered
di-
reSlly and by Confequcnce.
32. Difference between the Occafton and the
Caufe of
Evil.
3
3
. No Man to be puniflied
for
another''
s
Crime.
CHAP. IV.
Cf
the Tower
of
the Sovereign
in determining the lvalue
of
the Subjects.
Sect. 1 . 17 Steem
defined
and divided.
2.
J.-J
Simple
Efieem
natural.
3
.
Which may be either entire
,
4.
Or impaired.^
f.
Or utterly loft.
6. Simple
Efieem
civil
leffened,
or
lofi,
either
from a certain State,
7.
Or
The CONTENTS,
jf. O/" upon a criminal Jccoiint.
8. No Dijloonour to rcfttfe to engage in a Du-
el when the Lawsforbid it.
p. Simple
Efteem
not dependent upon the Plea-
fure
of
the Government^
10. Nor to befacrificedfor it.
1 1
.
Intenffve EJleem :
I z. 'the Foundations
of
it.
13.
Whether Power the
file
Foundation
of
Honour.
14.
uin Aptitude only
for
Honour the Refult
of thofe Foundations.
If.
What
Perfons have a Right
of
Prece-
dence to others.
1 6. Arguments
upon which Precedence is pre-
tended to.
17. That
of Antiquity examined.
18. I
p. That
of
Power,
of
its Quality^ and
of Titles.
io. One
Sovereign Prince not obliged to yield
the
Precedence io another.
11. How
f
tech
Princes might meet, without
any
Difpute
for Places.
7.1.
Of Order
between Equals.
23. The
Poiver
of
appointing the Order
of
the Subjetts lodged in the Sovereign.
24. StibjeSis
of different Commonwealths,
how compared.
Zf. Nobility
of Birth not from Nature :
z6. But
from the Inflitution
of
Common-
wealths
i
27. Ufually is, and ought to befounded upon
Merit.
28. T'he
Nature
of
the Roman Nobility in
the
carliefl
of
Times.
19- Offices born in the State, the Meafure
of
it
afterwards.
30. What the Nature
of
the modern Nobili-
ty in the
greatefl Part
of
Europe.
3
1
.
Nobility
of Blood little regarded infome
Places.
32. How
far civil
Honours depend upon the
Commonwealth.
CHAP.
V.
Of
the Tower
of
the Sovereign,
both over the
publick Tatrimo-
ny, and the
Eflates
of
private
Suhje&s.
Seft. I. TT/'HJT
Power the Prince hath over
the Goods
of
the Commonwealth,
where the Kingdom is his Patri-
mony.
Z. The SubjeEls do not every where owe the
Propriety
of
their
Eflates to the Common-
wealth.
3.
The Sovereign may make Laws to Jire&
the Subjects in the
Ufe of their Goods and
Eflates,
4.
And
alfo impofe Taxes upon them.
f.
What to be obferved in the
Impofttion
of
Cuftoms,
6. And other "Taxes.
7. Of
the Sovereign
or
tranfcendental
Pro-
priety.
8. H'loat Power the Prince
hath over the
Goods that
belong to the
Commonwealth
as
fuch.
p. Of
the Alienation
of
the
Kingdom,
or any
Part
of
it.
10. A Prince cannot make
his
Kingdom a
Fief, or mortgage it,
without the Con-
fent
of
his
People :
1 1
.
Nor alienate
any Thing
incorporated in
the Crown.
CHAP.
VI
Of
the
Right
of War.
Seft. I. 'T^HE
t>ivifton
of what
follows in the
Chapter.
z. Peace
the ordinary
proper
State
of Man;
War
extraordinarily
induked by Nat
fare.
^
3.
War either
offenfive or
defenfive.
4.
"The
Catifes
of War
ought to be
mamfeli
f.
The unjuji
Caiifes
of War recounted.
6. Fraud
lawful
againfl an
Enemy.
7.
How
far Violence
may be
lawfully
ufed -
gamfl an Enemy.
8. In a
Commonwealth
particular
private
Men
lofe their Right
of War.
p.
War either
folemn, or
lefs
filem'n.
10.
AMagiflrate
as
fuch hath
no Right
to
make
War.
1 1
.
Whether he may
make
War upon a Pre-,
fiimption
of
his
Prince's
Confent.
12. How
far an Injury,
done by a SubjeSI,
may
give
Reafon
for a War
a^ainff
the
Commonwealth.
II- Of
the
Equity
of Reprizals.
14.
For whom we
mayjuflly
make War.
If. Of
the
Declaration
of War.
16.
Of
the
Liberties
commonly
ufed in
War.
17. Of
the
Liberties
ufed upon the Per
fin of
an Enemy.
1 8. Whether
lawful to kill an
Enemy
by AC-
faffinesi
>
J
J
ip. Things
facred not
exempt
from the
Liber-
ties
of War.
%0. Things how acquired in
War.
Zi. To whom
the
Acquifitions
of War
he-
long,
ZZ.
Thingt
The C O
N T E
N T S.
2i. Things incorporeal, hoiu far acquired in
M^ar.
ij.
ALoan, whether acquirable in W^ar.
24.
Dominion over the Conquered, how ma-
tiy Ways acquired.
Zf.
Things
loft
in IVar, how recovered.
z6. JVhole Nations, how
reftored to Liber-
ty-
4.
The Term limited
for the
Performance
of
the Condition
of Peace, to h
ft
nelly
interpreted.
f.
How
if
Peace be
referred to the
Decifton
of
the Sword.
6. Jn Hojlage
fucceeding his
Prince can be no
longer detained.
7. Of
the Mediators
of Peace.
CHAP. VII.
Of
Compacts that relate to
War
Seb. I . 'T' HE Divifion
of
CompaSis that pre-
-*
fuppofe War.
2. Compals that have no Tendency to remove
the War, whether valid.
^.
A Truce, what.
4. Of
the Duration
of
Truces.
f.
A Truce leaves the Difpute the M'^ar be-
gan upon undecided.
6. No Need
of
a new Declaration
of
U^ar
when the Truce expires.
7.
Truces contracted and made by exprefs Com-
pal.
8.
Of
the Beginning and End
of
Truces.
S>.
The Subjel when obliged by Truces.
10. What Liberties aT'ruce allows, and what
forbids.
11. Whether a Man taken in an Enemfs
Country, and forcibly detained,
may
be kept Prifoner after the Truce is ex-
pired.
iz. What enfues upon Fiolation
of
the
Truce.
13. Of
Compacts that relate to
fafe
Con-
duct.
14. Of
the Redemption
of
Captives.
If. Of
the Compafls
of
Generals.
16.
Of
the CompaSis
of
private Perfons in
War.
C H A
p.
VIII.
Of
Compacts that reflore
Teace.
Sel:. I . T/7 Hcther CompaSls
of
Peace are inva-
'^
lidated by an Exception
of
Fear,
z. Whether a Peace made with Rebels is
valid.
3. How far,
upon a Pacification, the Goods
of
p-ivate Subjects may be excufed.
CHAP.
IX.
Of
Leagues.
Sel. I. ^HE
Divifton
of Leagues.
2. *
Leagues that
eftablifto nothing
but
what was due by the Laws
of
Na-
ture.
3.
Equal Leagues which, and what Sorts
of
them^
4. Of
unequal Leagues.
J.
Of
two Confederates which a third
ought
to
afjift.
6. Leagues real, or perfonal,
7.
Which may be
diftinguiftjed either by par-
ticular,
8. Or general Marks.
p.
Whether exiled and depofed Princes
can
have the
Benefit of their Leagues.
10. Future Allies, whether
comprehended
un-
der the Name
of Allies in
general.
1 1
.
Leagues not to
befuppofed to be tacitly
re-
newed.
12. What Obligations lie upon the Engagers,
when their Engagements are not own-
ed and
confirmed.
1 1. An Engagement whether
ratified by the
Silence
of
the Sovereign.
CHAP.
X.
Tromifcuous Compacts
of
Sove-
reign Trinces.
Sea. I. nnHE
Divifton
of
the Chapter.
2.
*
How
far a Prince may
reft
ore him-
felf
to his Right,
when injured in
Compal by a Foreigner.
3.
How far, when by his own SubJeSIs.
4.
The Contra&s
of
Princes,
how
far exemp-
tedfrom the Civil Laws.
f
. A Prince cannot
difpenfe with any valid
Oath he hath taken.
6. How far a SubjeSl may have an A6tion
againft his Prince upon Matter
of
Contrail.
7.
The
The CONTENT S,
SecV.
. The ContrclBs
of
the SubjeSl liable to be
over-ruled by the tranfcendental Pro-
priety.
. How
far Succejfors are obliged by the Con-
tr.z5ls
of
their Predecejfors.
. The Grants and Donations
of
Princes
ivhether revocable.
CHAP. XI.
How Subjection ceafes.
. A Man ceafes to be a Subject ivhen his
-^
Prince dies without a Succeffor :
z. Or,
if
he removes out
of
the Common-
wealth.
3.
What to be ohferved infmh a Remove.
4.
Whether
lawful to remove in great Com-
panies.
J".
Whether
lawful to counterfeit a Refuge.
6. Whether the Common-wealth may ejeH a
SubjeEl when over-powered by an E-
'fiemy.
7. Of
Punifhment.
8. A Man is dep-ived of
the Privileges
of
a
Subject when over-powered by an E-
nemy.
9.
Whether
a SubjSl furrendered to an Ene-
my, and not accepted, continues
a
Member
of
the Common-wealth.
CHAP. XIL
Of
the
Changes and
"DiJJolution
of
a Common-wealth.
Set. I
.
'T>H E People continue the
fame, though
* the Form
of
the
Common-wealth
be
chamed.
o
2. The Debts
of
the
Common-wealth
not
dif-
charged by a Change in the Form
of
it.
3.
The jas
of
an Ufurper how
far valid
af-
ter his Government is expired.
4.
What Place a Common-wealth
may chal-
lenge
after a Change in it.
f.
One Common-wealth may divide into
more:
6. More may unite into one.
7.
The People how eternal f
8. How the Materiale
of
the People may be
deftroyed.
9. How the Formule.
O F
An
Hiftorical
and
Critical
ACCOUNT
OF THE
SCIENCE of
MORJLITT
And the Progress it has made in the World,
from the
earlieft Times down to the
PubHcation of
PUFENDORF
O F T H E
Law
of
Nature
and
Nations:
In a
Prefatory Discourse to the faid
Work, by
Mr.
BARBEVRAC, Profeffor
in Law,
&c:
Now done into Enghfli from
the French
of
the
Author;
Together with the Authorities and Notes in the
Margin,
By Mr.
CAREW
of
Lincolns-Inn.
LONDON:
Triiited
for
J.
Walthoe, R. Wilkin,
J.
and
J.
Bonvvicke, S. Birt,
T. Ward, and T. Osborn. Mdccxxix.
The Reader is dejir'd to make the CorreffioJis follo'-Ji.'hg.
PAG.
5,
Col.z, Lin. 31,
Precepts of Morality, r. the
Precepts of Sec.
P. 6, col. 1,1. I, difficult to be rightly conftituted ; r. hard
to fettle,
liJd. col. 2, /.
52, 53,
fometimes interfere ; and Charity
and Juftice be often found &c. r. often interfere; and Charity
and Juftice be found &c.
P. 7,
col. 2, I. 4,
a
fine,
or great Inconvenience, r. or In-
convenience
Ibid. col. 2. I.
46,
permitted, r. allowable
P. 8, col. I , /. 2
1
, do not proceed, r. proceed not
Ibid. col. I, /.
47,
Services, not hurtful to himfelf, that he
can do him, r. Ser\'ice5, that he can without prejudice do him.
Ibid. col. 2, I. 8, are not yet born, r. are yet unborn ?
Ibid. I. J 6, not perhaps be very difficult, r. perhaps be not
very S;c.
P. 10, ccl. I,
/.45.,44,
purpofeto anfwer &c. r. propos'd to
anfwer briefly.
Ibid. col. 2,
/.
1
4, <2
fine,
Reafon. r. Reafon ?
P.w, col. I , /. 13,
them. r. thenj ?
Ibid. col. \, l.\j, carry'don beyond, r. carry'd far beyond
Ibid. col. 2, /.
5,
philofophifing, r. philofophizing j
Ibid. col. 2, /. 1 2, isfc. Reafons which he alledges, a
little cannot refufe to them. r. Reafons he al-
ledgef,
the leaft cannot but their cogency.
Ibid. col. 2, /. 19, to confirm themfelves, r. to be confirm'd
Ibid. /.
9,
10, a
fine,
chiefly maintain &c. r. pcrtinacioufly
infift upon &c.
P. 1 2,
col. 2, /.
4,
Profit, r. Benefit
i'. 1 3, col. I , /. 44,
^^ hereas, r. nay
Ibid. col. 2, I. 41,
conufs'd, r. confus'd,
P. 14,
col. I, /. I, writing, r. writings
Ibid. col. I, A
9,
10, a
fine,
as well as &c. r. both
- and &c.
Ibid. col. 2, /. 10, a
fine,
r. Obligation, and Right,
P. 15, col. 2, I. 8,
a
fine,
abufe ; r. abufe, &c.
P. 16, col. I, /. 6,
worfliip; r. worfliip,
P. 17,
Not. k, Idolatry, r. Idolatry, c. 10, 5. i-,
2'.
P. 19,
col. 2, /.
30,
guilty;
'' guilty:
P. 20,
/. 16, a
fine,
conie fhort r. fail
P. 25,
/. 2,
/.
44,
fome time, r. fometimes
P. 26,
</. I, A 3,
r. Accounts, cou'd /i.V. col. 2, /. 10,
r. Opinion
P. 27,
/. I, AS, it fclf In vain, r. it felf: in vain
Ibia. An,
Refleftions. In vain r. Refledions : in vain
Ibid. A 29,
to fuch, as have no better to make ufe of; ha-
ving &c. r. to fuch, as have no better; having iVc.
P.
39,
col. 2, 1.
37, 38, to do with a Whore, r. Commerce
with a Courtezan,
P.
46,
col. I , S(V7. 1 7, A
7,
I.acedremon, r. Lacederaon.
P.
50, col. 2,1. 3,
which proceeded no farther than, r. whigh
pr ocecded not beyond
Ibid. col. 2, A
7, 8, a Spirit of Diffidence, r. a Spirit of Scepti-
cilm and Sufpence
Ibid. col. 2, A 1 1, 12, was good, r. was a real Good, a/ij
dele, or.
P. 52, col. I, A 13,
does, I may fay, r. does, as I may fay,
P.
53,
col.z, I. 15,
always fhunn'd it, r. ever fhunn'd it,
'
P.
55,
col. 1, A 25,
Right; r. Law,
P.
57,
<-A I, /. 1, Scholar, r. Difciple
Ibid. I. 13,
r. a fpice of &c.
P
58,
col. I, A 9,
^
fine.
Cafes always r.
Cafeswou'd always
P. 66, col. 2, A 30,
incertainty, r. uncertaintv,
P. 68, <-(!A 2, A 8, 9,
10, will ftill nevcrthelefs be Src. r. will
ftill be never a jot the lefs an Atheill for all that ; as long as it
appears, that &c.
Ibid. col. 2, A 27,
Charafter, r. Name
P.
69,
col. 2, I. 27, 28, his Reafon he us'd; r. the Reafon
he us'd,
Ibid. col. 2, A3;, dele too
P. 72, col. I, A 13. defac'd ; r. disfigur'd
Ibid. col. 2, I. a
fine ^,
Profit, r. Intcreft
P.
74,
col. I , A 1 , devefted of r. ftripp'd of
Ibid. col. 2, A
34,
examine, r. examine at prefent,
P.
75,
col. I , A
9,
concife and rough Stile ;
).
concifeand
difficult Stile,
Ibid. col. I, I. from
the bottom
5,
form'd; r. cull'd
Ibid col. 2, A ult. We there .alfo find fome Dccifions ; r. Wc
find alfo fome of his Decifions &c.
/.
76,
col. I, A
15,
the Ufefulnefs of Religion in Civil
Societies ; t. the Importance of Religion to Civil Society.
Ibid. A 24,
approve of them ; r. concur with him:
Ibid. I.
47
, thit are moft ufeful to my defign ; r. that fceil
fit my turn.
Ibid. col. 2, A 13,
begin firft v/ith that; r. begin with that
firft.
Ibid. I. 20, Argumentation, r. Argumentations
Ibid. A 22, Heait of doubt; r. Heart of the Doubt;
Ibid. I 24,25,
Schools the Bir, or the Pulpit; r.
Schools
and the Bar ; or for the Pulpit, where ilc.
Ibid. col. 2, /.
27,
It is ; r. It may be
P 86, ccl. I, A
7,
8, afiuiSi. Attention, that we ought
to have for, r. Attention, vc ?rc tc bellow &c.
P.8j, ccl. I, A 12, faculty of &c. r. Faculty too of &-c.
Ibid. I. 8,
a
fine.
Habits and Cuftoms &c. V. Habit and
Cuftom
m^j^^/s^^^/ii#
iii^f^
i|
i*m^ ^n
CONTENTS.
SECT. I.
SECT. VIII.
H E Science of Morality is 3dly,
Of
thofe
Falfe Teachers who fprung
'with'm the Reach
of
the inofl p
even in the Days of Jesus
Christ,
ordhiary Ca^acn'ies. Pag. i and his Apoftles. 17
SECT. II.
If capable
cf
Demonftration.
SECT. III.
SECT. IX.
2
4thly,
Of
the Fathers
of
the Church, and
other Chr'ijiiafi Dofon,fro?n the Death
of
thofe who were the immediate Succefprs
of
the JpofileSj
down to the Reformation. 1
S
SECT. X.
The j4t2/wer to an Ohje^iioVy drawn
from
the
Difficulties that arife in deciding certain
'lueJlions
of
Morality
y
and reconciling
fomc
cf its Principles.
i
fVhether a
jufi Cenfure oj the Fathcrs,fli9f
i
any
way
affSthe
Chrijilan Religion
itftlf.
a
j
SECT. IV.
S E C T. XL
The 'Examination
of
another Objection, drawn
from
the great Dtverfity
of
Opinions a- ithly,
Of
the Proteftant Ecclefiafticfcs and
mongft
Men, upon the SubjeB
cf
Virtue and Divines.
35
Vice.
"10
SECT. V.
General Reafonsy why Morality is bat little
known and cultivated among the Genera-
lity
of
Mankind.
1
3
SECT. VI.
The extreme Negligence
of
the Publick Mi-
nifters of Religion in
ft
tidying, and teach-
ing, in due manner, a Science
fo
important
in
itfelf andfo agreeable to their FunBion.
^roof thereof, from
the ConduB, ift,
Of
the Priefts of Paganilin.
1
4
SECT. XII.
Jn JccoHHt
of
the '^rogrefs
Morality has
made in the Hands
of
the Laity
;
from
whom it appears to have receiv d much
*"
greater Improvements, than from
the -Pub-^
lirk Minifiers
of
Religion. The Morals
of
the E^^eia Nations
j
and ift,
Of
the Chal-
deans. 3^
SECT, XIIL
adly,
Of
the Egyptians. 38
SECT. VII.
adly,
Of
the Jewifli Dodors. 16
SECT.
XIV.
Of
the Perfians. 59
SECT.
CONTENTS.
SECT. XV.
3dly,
Of
the Indians, and Chinefe.
SECT.
XXV.
44
Of
the Academicks
of
the New or Middle
Academy^ and
of
theVynhom^s. 66
SECT.
XVI.
SECT.
XXVI.
The Morality
of
the moji ancient Greeks
;
efpec'ially
their Poets.
4i Of
Epicurus. ^8
SECT. XVII. SECT. XXVII.
Of
Thales, one
of
their Seven Wife Men
;
Of
the Stoicks.
and Founder
of
the lonick Sed. 4^
SECT.
XVIII.
Afhort
V'le'W
of
the Moral 'T'rinciples
of
the
mofi
celebrated '^hilofjphers. The Sent'i-
"
ments
of
Pythagoras, Founder
of
the Ita-
lick Sed. 47
SECT. XXVIII.
70
j4 'Judgment
on the Moral Tra&s
of
Cicero,
Plutarch, Seneca, Epidetus, and Marcus
Antoninus. Hozv Morality has been treat-
ed by the Roman Civilians, Schoolmen,
and modern Cafuifts.
75
SECT XIX.
O/Anaxagoras,
^;?^ Archelaiis.
SECT. XX.
Of
Socrates.
SECT XXIX.
45> Of
the moJi
celebrated Moral Writers
of
the
Seventeenth Century^
(
when Morality was
much improv'd beyond what it had ever
heen before^
and reduc'd into a Syftetn
\ )
ftich
as Melanchthon, Winckler, Grotius,
50 Selden.
7^
SECT. XXI.
SECT. XXX.
0/Plato, Founder
of
the Old Academy. 52 0/Pufendoif. Si
SECT. XXII.
SECT. XXXI.
Of
the
CynkkSjwho/e ill-grounded, hutfubtle Jn Idea
of
the
jufl
Value
of
the Work
of
KeaJbningSyfor
their Contempt
of
the com-
Pufendorf, here tranjlated. A Comparifon
nwn Rules
of
Decency and Modejly, are
of
his Syjlem with that
of
Gxoims.
83
examined.
sy
SECT. XXIII.
SECT. XXXII.
Of
the Cyrena'icks, or Cyrenians.
S9
^^
what
fort
of
^^erfons more particularly the
Tranjlation
of
Vufendox^tnay be
uj'eful. The
NcceJJity ofjoyning the reading
of
Works
of
this Naturey with the Study
of
the
GoJ-
fel. S<:^
0/'Ariftotle,F!5</^/'o/^?^fPeripateticks. <^o
SECT. XXIV.
Aa
An Hiftorical and Critical
ACCOUNT
OF THE
Science
of
Morality^ <Scc
SCe:}^32S:$2CSC^S2K3SCSa!^32GSCS2D--SCS2S^
SECT. L
w
2
An
Hijiorical and Critical Account
plain,
without
Injuftice, that God has given him a JImme for
PJjilofophers to doubt
of
a Truths of
Laws,
either imprafticable j
or environ'd with 'which even Peafants make no doubt ? iVitncfi that
fuch Obfcurity, as cannot be penetrated by one Sayings -which is commonly made
ufe of,
when we de-
who really has his Duty at heart,
notwithftanding fcribe a Man
of
Integrity ; That he is a Man, with
nil his Pains and Application. This the wifell whom one may play
*
at Mora in the dark : For
Heathens have acknowledg'd ; nor will it be im- Hwas the Peafants who invented that old Proverb.
proper here to produce their Teftimonies
j
to But tho' none had ever yet difcover'd in the
confound thofe, who,
under Chriftianity itfelf, Principles and Rules of Morality, fo high a De-
feem to call in queftion fo inconteftable a Tmth. gree of Evidence, and that they are fo duly ad-
The 5'/ozV/('.r, who made Morality their principal jufted to all Capacities
>
one might ftill appeal
Study, maintain'd, that their Philofophy was not in this Matter to the very Nature of the Thing
above the Reach of
^
Women and Slaves
;
and itfelf
j
and in fome meafure to Experience. We
that, as the way to Virtue lies, open to all Men have here no Bufinefs to dive down into the im-
without Diftintion;
"^
fo there is no Eftate or penetrable Secrets of Nature, to difcover thofe
Condition with peculiar Privileges exclufive of imperceptible Springs, that produce in the World
others, as to the Faculty of knowing the Princi- fo many Phaenomena, and fuch variety of wonder-
plcs and Rules, as well of thofe Duties which are ful Events; to meafure the Magnitude and Diltance
common to all, as of thofe which belong to each of the Stars; to rake up the Entrails of the Earth,
Particular. Is
^
it
fo,
(faid anErrtperour and Phi- and dig down to its very Center;
t
no more have
lofopher of the fame Seel ) that you cannot recom- we here any occafion to bury ourielves in meta-
mend yourfelf, and raife a CharaBer by the Delicacy phyfical Speculations; to turn over a vafl Num-
of
your Wit, and the Finenefs of
your Underftand-
ber of Volumes; to learn feveral Languages; to
ing? Fery well. But there are many other 'Things, pierce thro' the Darknefs of remote Antiquity
>
as to any
of
which you cannot
fay,
I am not
fit
for in a word, to be very learned : We fhall fcarce
it. Put inpraHice them, andfliew forth what does have occafion to cany our Thoughts beyond our-
entirely depend on yourfelf;
Sincerity, Gravity, Hu- felves||, or coni'ult any other Mafler befides our
Tnanity, Laborioufnefs and Indnjiry, Contempt
of
own Heart. The moft common
'
Experience of
Foluptmufnefs. Be content with thy Condition
-j
Life; and a little Refleftion on ourfelves, and the
fland in need but
of
a little ; avoid Luxury, trifling Objefts that furround us on every Side; are fuffi-
jlmufements, and vain Difcourfes. Have a Soul ju- cient to furnifh even the moft ordinary Capaci-
dicious, free, and great. Don't you fee, that, being ties with general Ideas of the Law of Nature
j
able to raife yourfelf
by
fo
many Firtues, without and the true Grounds of all our moral Duties.
having any pretence on the Account
of
natural hica- Who does but ever fo little examine his ownNa-
pacity
;
you ftill
continue in the Mire, only becaufe ture ; and contemplate that wonderful Order of
you will? Ever bear in mind,that all the Happincfs the Univerle, which on all fides prefcnts itfelf to
of
this Life depends on but very
few
7'hings. Becaufe the View of every one capable of any Degree
you defpair
of
being eminent in Logic, or Natural of Reflcftion
;
will immediately be rais'd to the
Philofophy; will you give over all Thoughts
of
Knowledge of that Almighty, All-wife, and
heing free, fociable, and fubmiffive to the Orders
of
All-good Creator, in wJmn we
^
live, and
God? Another i?5;7?7; Philofophcr, moft illuftri- move, and have our Being; to whom too, he
oufly eminent on account of his Eloquence and will find he owes Homagewith all the reft of the
Employs in the Government, had faid long be- Univerfe. Whence it is eafy to conclude, that
fore, (being to confirm this Propofition; That a we ought to have the higheft Idea of this Supreme
good Man will never think thatufeful or profita- Being, that our Minds are capable of receiving
j
ble,that is
not honeft; and that he will never do^ and to obey his Laws, as far as we cati attain to the
or even think of doing any thing, that he dares Knowledge of them. After this, there will be no
not boldly difcover to all the World
:
)
"^
Is it not great need of much Penetration, to perceive how
"=
Srnfcrunt hoc adeo Stoici, qui IS fervis, s? muHertbus fhilofophandum ejfe dixerunt. Idem ibid. Num.
7.
f
l^on omnes curia admittit : caflra quoque, quos ad laborem Uf periculum recipiunt, fajlidiofe legunt : Bona mens tmnibus patet i
tmr.es ad hoc fumus7uhiles. Nee rejicit qusmquamPhilofophie, tie: digit : omnibus lucet. Senec. Epift. 4.4-. Nulli praclufa vir-
tus eji; omnibuf patet, omnes admit'it, cn:nes inz'itat, ingenues, libertinos, fervos, regcs, isf exfules. Non eligit domum, nee
cenfiim; nudo homine contenta
eft.
Idem, de Benefic. ].
3,
c. 18-. Cicero alfo fays, that there is not any Perfon, of what Na-
tion foever he be, but may arrive at Virtue, provided he will take Nature for his Guide. Nee
eft
quijquam gentis ullius, qui,
ducem nattiram naBus, ad virtutem pervcnire non pofftt. De Leg. 1. i, c. 10.-
etwip oAa tr; c* aniy -n a.'y.'tQ Jiihtv, 70 amih, 70 ^ifiTnivov, -ri tL<piKriJhvov, ti diuy.'l'ifMiefV, tb oA/jucAif, Ti c/juiVi<, t^
i'u^C"''
"fo 'et-j'ieicjtt'y -ri dipfii'ct^ti; to ixcyi.f.c7ov. 'Ot/ tt/<5aV, m<m liiA! aafe;^<9K/ Jiiva./^-, ip
uv ouj^f/ia^ ti(pvia.(
^
jtVeOTw/ttOTOT- sre/paOTf, ofiui %v yJ.Tt f^uaf }x^V, Marc. Antonin. I.5, c. 5." Ki '4v 'iKtjyis (ixi^vnm cCfi),^ on If
cA/;<5T'f y.ciitti 7B ivJii,ifMvci!( ^tuav.1' i^ /m!
077 ttTi'ihmcuf A/AX77x3f 1^ ^v^x-oi 'ioiStai, tho. tdCto ttTwyptof x^ SAoStf",
;C)
eiiJ'-.i/M/ii',
i
yxivmixify Jti ivjei^f 0ia. Idem, Lib.
7,
Seft. 67,- Edit. Gataker.
,
>
Ha-c nonne
eft
turfe dubiiare Philofophos, qua ne rtiftici quidem dubitcnt ? A quibus natum f/? id, quod jam tritum
eft
ve-
tuftate
proz'crbium . cum enim
fidcm
alicujus bonitatemque laudant ; dignum
ejfte
dicunt, qu'icum in tepebris mices. Hoc quam
habet vim,
nifi
iUani, nihil expedire, quod non deceat ; etiam
ft
id poftis,
nullo refellente, obtinere? Cicer. de Offic. /.
3,
c. 19.-
See alfo Grotius, De
J.
B. ac Pads, Prolegom. .
39."
.
*
Digitis Micare ; to play at Mora ; i.e. to guefs on a fuddtn, how many Fingers the Perfon againft wham one pi lys, holds
up or down ; by which Play the Antients bought and fold many Things ; as we may by drawing Cuts
;
and Crofs or Pile.
-f-
Sec LaBant.
Inft.
1.
3, c. 25,
Num. 9,"
4^ ftq.
II
Eft
profeBo animi medicina, Philofophia ; cujus auxilium non, ut in corforts morbis, petendtm
eft
firis. Cicer. Tufcul.
Qiixft. /.
3,
c. 3--
'In ilia priori parte \_Philofophia natura/i] ut periculi minus,
{ft
quid fuerit erratumi ita plus difticultatis
eft ; quod obftura
rerum ratio cogit di-jcrfa, (sf varia ftntire; hic {in philofophia moralil ut periculi plus, ita minus diffieuhatis ;
quod ipfe uj'us re-
rum, is quotidiana experimenta pojfunt docere, quid
ftt
verius, Q melius. Laftant. Inftit. Divin. I.
3,
e.
7,
Num. 4.
Edit. Cellar.
I'
y^'7rxvii, 28.
4
^^
of
the Science
of Morality.
o
God has, by a natural Refult from the Conftitu- Actions, that they look
on fuch Prafticcs to be
tion of
Human Affairs, put us under a Neceflity evil
*
;
and that they
underftand
veiy well, that
of
praftifing,
one towards another, certain Du- they are forbid them, not
purely
thro' Caprice
ties,
without
which Society cou'd not be main- ora miftaken Notion ofJuftice and
publickGood'
tain'd;
and how he has thereby laid upon us an but for moll: ftrong and equitable
Reafons.
Every
one will complain, if he is flandcr'd,
or rnbh'rl
indifpcnfable
Obligation to obferve thofe Duties
j
every
one according to his State and Vocation.
This is certain at Icail, that no fooner are thofe
Principles
propos'd, but that eveiy one becomes
fenfible of their Goodnefs, and finds himfclf clearly
convinc'd of their Truth; provided he be not the
Slave of fomc violent Paffion, that darkens and
clouds his Judgment; or that there be not fome
other Obftacle to hinder and divert his Attention.
Let us here add theTeftimony of a Heathen Phi-
lofopher ; 'tis the celebrated Confucius of China
'.
The Rule of
Rea[on
^
lays he, ivhich comprehends the
reciprooal Duties
of
a King and his SuhjeEls
;
a Fa-
ther and Mother^ and their Children
; of
Husband
plam. It ne is ilandcr'd,
or
robb'd'
or ill treated in his own, or in the Peifon of
thofe
who are dear to him; or in any other manner
what-
foever: The moft ftupid have thenunderftanding
enough to reprefent livelily in their way, the Great-
nefs of the InjulHce; and the Punifhment due to
the Offender. Therefore, when they themfelves
commit any thing of the like Nature againll
others, it is doing them no wrong to condemn
them by their own Judgment ; and to look on
their Ignorance, in which they may pretend to
have been on that Head, as altogether inexcufi-
ble. But what is much more confiderable, they
can, not only comprehend and difcoverwith little
and Wife; of
the young Folks, and the Aged-,
of
trouble the Fundamental Principles of Morality}
Friends, and all ivhn have any Correfpondence or
hnercourfc 'xith one another, is not above the reach
of
the Vulgar. IVhereas the Maxims "dihich cer-
tain People have themfelves invented, or vuhich they
ivoii'd have pafs for fublinie, and above our Compre-
henfion; fuch as are certain firange and abfirufe Prin-
ciples, and ivhich have no Relation to thofe five forts
of Perfons before-mentiond; cannot beat all reckon'
d
among the Rules
of Reafon. Thus this wife Chi-
ncCe exprcffes himfclf, being to explain a Maxim,
which he is endeavouring to fct in its full Light,
in order to prove, that 'tis eafy for all the World
to be virtuous ; 'tis the fime Maxim which the
Gofpel fo much inculcates : Do not that to others^
which you wou'd not have done to
yourfelf. And in
vcrv deed, there needs no more, to be convinc'd
but bcfidcs, wou'd they but ufe their utmoft En-
deavours to augment their fmall Stock of Know-
ledge; they might, without much Difficulty, draw
from thence certain Confequences, and extend
their Knowledge to a Competency confiderable
enough; at leallfufficient for their Condition. In-
ftances too of this kind we often meet with in
fome of this foit of People ; who plainlv fhew,
both by their Difcourfe and by their Conduft
j
that they are neither fhort, nor wrong in their
Ideas concerning Morahty ; altho' they may not
be always able to explain full)'^,ortoexprefs clearly
the Whole of what they think. The Conduct and
Intentions
of Peafants,
'''
(tl^s Montagne, I have ge-
nerally obferv''d to be more agreeable to the Prefcrip-
tion
of
true Philofophy, than thofe
of
our Philofo-
th It the moll: ignorant are by Reafon perfuaded of phers themfelves. Vulgus interdum
plus flipitj
the Neceflity of the general Duties of the Law
of Nature; than" either to ask 'em if they wou'd
be willing any one lliou'd do themfelves the
Hurt which they do others ; or to a6tually do it :
For they will then immediately make it appear, ei-
ther by their Anfwer; or by their Complaints and
quia tantum, quantum opus eft, fapit.
'
This was
probably the Sentiment of an antientPhilofopher,
P
when he faid; That many People without having
their Reafon improv'd by Study, live neverthelefs
in a manner conformable to the Diftates of right
Reafon.
' Biilioth. Unhcrf. Tom. VII,
^.426.,
427." In the Extraft of Father Couptet^Confutiiis.
"'
See the Parrhaftnr.a, Tom. II, p. 89, i^
feq.
*
In the Euthyfhro of Plato, Socrates hys. That no one fo much as queflions whether he, who has kill'd another wrong-
fully, or committed any other Injuftice, defervcs to be puniih'd for it ; but what they difpute upon, is the particular Circum-
ftancc?; when the Qiieftion is, for example, to know who it is that has committed the Injuftice, and what he has done, and
when he became guilty of it, is^c. 'Ai-flf '^of
/f) uvli nKouaai df^.tpiaCnH-T- o( liv dJ'iyjco; ATmy.Tiiva.v-ay n al^o eH i-
Ko>f TTtiovv-ra oTiiv, cv S'ii <f)J^vau Slr.^v
a>A' sxeTi'O ioay <(U?/!rfi)7Bt/7, li tU iTIv a dSiKCov, x^ 77
/ft)"!',
i^ 7757!, p- 8.
B-, C,- D," Tom. I, Edit. Serran. JnJ
p. 50. F," G," Edit. Lsmar.
"
Eflays, Lib. 2, c.
17,
tozuards the End,
p. I15-, Ed. 1727.
"
Laciant. Inft. Divin. Lib.
3,
c.
5,
Kum. 4. Edit. Cellar.
Ti.n.'A Kiy>\'
fj.i f4a.^v7i(, ^an y^Tzt Koyiv, Democrates, in Opufc. Mytholog. &c. Amft. 1688. p. (>i'Jf
SECT. II.
IF
Perfons of the loweft Rank can arrive at
llich a Pitch of Knowledge in Morality ; it is
much more to be expefted that thofe, who
have greater Talents, and more Penetration, with
greater cxtcrr;al Helps, and more efpecially Men
of L'jr.niing ; fhould be able to acquire to them-
felves ia this Science, and that too in a much more
diilincl manner, all the Light and Knov/ledge
any way requifite for the Condu6t of Life: Nay
I dare even venture to affirm, were the natural
Principles of Morality, with due Application,
clofelv purfu'd. Step by Step as far as they
wou'd carry us; that all the moral Duties of
Man, in eveiy Station of I>ife, might from
thence be eafily deduc'd, by a Train of Con-
fequences connected one with the
other, in a
Method ftriclly demonftrative : It
appears to me
very improbable,
*
that our Creator, having given
us Faculties fufficient to difcover and dcmonftrate
with entire Certainty
abundance of fpeculative
* ^ist\i<:
Elements ofjurifprud. Univerf. ofMr. Pu/endorf, p.
3 J4.
and thePrc/^/r^of
thefameBoofcj/.Z. Edit. Franc. 1680.
[A
2
J
Things,
An Hiftorical
and Critical Account
Things, of
which we may without a Fault be
ignorant
j
principally, that vaft Number of ma-
thematical
Truths, which have been aclcnow-
ledg'd
to be inconteftable, by all who have been
able to comprehend their Proofs and Principles
:
It is I fay improbable and incongruous to fup-
pofe, that the fime Creator has not alio made us
capable of knowing, and eftablilTiing with the
fame Evidence,
the Maxims of Morality
j
in
which are
contain'd thofe Duties he indiipenfa-
bly requires of us
>
and on the Pra6tice whereof
all our
Happinefs depends. But, befides this
Reafon,
which the Goodnefs of God will not
permit us to doubt of; there is ftill another drawn
from the Nature of the Thing itfelfj and which
alone wou'd be of Force enough to convince any
reafonablc Perfon, of the Poflibility of reducing
the Science of Morality to a Syftem,as well con-
nefled, as thofe oi Geometry, for example, or Me-
chanicks; and founded on as certain Principles. It
is no Part of the Bufinefs in Morality to know
the real E'ence of Subftances;
which is what has
been hitherto attempted without Succefs, and in all
probability will never be brought about
j
as a great
\ Philofopher of this Age has made appear : All
that is requir'd here, is only to examine and com-
pare with Care and Diligence certain Relations,
which we conceive between human Anions and a
certain Rule. Let us hear what Mr. Locke him-
felf fays onthisOccafion%
"
I doubt not, fays he,
"
but from felf-evident Propofitions,by neceflliry
"
Confequences, as inconteilable as thofe in Ma-
"
thematicks,
thcMeafurcs of Right and Wrong
'
might be made out, to any one who will ap-
^^
ply himfelf with the fime Indifferency and At-
"
tciition to the one, as he does to the other, of
'
thefe Sciences. The Relation of other Motks
*'
may certainly be perceived, as well as thofe of
*'
Number and Extenfion : And I cannot fee
j
*'
why they fliou'd not alfo be capable of De-
*'
monftration, if due Methods were thought on
"
to examine, or purfue their Agreement or Dif-
*'
agreement. Where there is no
^
Property, there
*'
is no Injujiice, is a Propofition as certain as any
*'
Demonftration in Euclid: for the Idea oi Pro-
*'
perty being a Right to any thing ; and the Idea
*'
to which the Name Injurtice is given, being
"
the Invafion or Violation of that Right
j
it is
I
confefs, the Change of the Name by the Im-
propriety of Speech, will at firft difturb him,
who knows not what Idea it ftands for : But
as foon as the Figure is drawn, the Confe-
quences, and Demonftrations are plain and clear.
Juft
the lame it is in moral Knowledge, let a
Man hzvcthe Idea of taking from others, with-
out their Confcnt, what their honeft Induftry
has pofiefs'd them of, and call this
Juflice,
if
he pleafe.
Sen. IX.-
f
Trapezium, or TmpezoUes rather, is a Quadrilateral Figure, whofe Sides and Angles both are unequal. See Euclid.
Element. Grare.
is" Lat. Edit. Paris
1573, Definit. 34,
/. i, *. 43." iff Diaion. Acad. Franc.
II
Sea. X.-
' Such as is ( for example
)
the little Treatife of Vufendorf, entitled, The Duty
of
a Man, and
of a SubjeB ; which is an
Abridgment of the Work here tranflated.
f
Infinita, inquit, fracefta fiint. Falfum
eft.
Nam de maximis ac neceffariis rebus non fitnt infinita: tenues antem differentias
babent, quasexigunt tempora, loca,perfonie. Sed his quoque dantur priecepta generalia. Seneca, Epift.
94,/. 335.- ^i^/V.Amft. i6jS.
SECT. III.
NOtwithftanding
all thefe Reflexions,
which it is very obvious to makej fome
have "for a long time believ'd, and even
at this day many do maintain, that Morality is a
Science very uncertain ; and wherein fcarce any
thing beyond Probabilities is to be found or ex-
pcfted : But it is not altogether for want of due
Examination into the Nature of Things, that this
talfe Notion has prevail'd. There has ever been an
uninterrupted Succeffion of Men, who, feduc'd by
a fecret Defire to ftiake off the troublefome and im-
portunate Yoke of Duty
;
and to indulge them-
felves fecurely in the Gratification, if not of their
fcnfual and grofs Dcfircs, yet at lealt of their more
delicate and rcfin'd Inclinations} have employ'd all
This was my Judgment fix Years ago, form'd on the Extraft in Bernard'% Nouv. de la Repiib. des Lett. May \yoy I had
reafon to believe, that that ingenious Journalift had neither weaken'd, or mifreprefented in the main, the Reafons ofthis
Englijh
Doaor. I have fmce foundlt to be faft, having read the Book it felf, well tranflated into French in 1708. But^as
to my
Judgment of the Doftor's Reafonings, I am fo far from' altering it, that I find my fdf more and more ^confirm'd
in it by
reading that long Digreffion, where he pretends to eftablifh innate Ideas ; and to confute thofe who deny 'em_.
The judici-
ous and difinterefted will difcern, who are moft likely to clear the Matter ; whether thofe who go upon
Experience,
the only
way we have to know the Truth ; and upon the proper and certain Charafter of Ideas ; which is to make
themlelves be per-
ceiv'd, where ever they happen to be; or whatever at bottom their Nature may be ; or thofe, who being
obligd w acknow-
ledge Experience to be againft them, do yet advance nothing but Reafons of Congruity ; and yet charge
others With want ot
Penetration to fee the Difficulties.
e
Ibid. pag.
545,
and in the Book it felf of Dr. Sherlock, pag. 146, 147,
in the French Verfion.
[B z]
Pi-ove
A^
Hijiorkal and Critical Account
12
]6rove toanAthcifl, that notwiftanding the mani-
feft Ignorance in which whole Nations have
been and ftill are, of fome fundamental Duties of
the Law of Nature ; and the odnefs and prodi-
gious diverfity of Opinions, which have at all
times been in the World on the Subjecb of Mo-
rality and Religion ;
thar, notwithllanding all
this, I fay, every particular Perfon has mmte
Ideas of the Deity, and of Virtue ? Nor do I
fee how this Difficulty can be anfwer'd other-
wife, than by faying
;
that as Men are naturally
provided with
*
Faculties fufficient to acquire the
knowledge, of the Author of their Exiftence, and
of the Duties he experts from them
j
and to form
to themfelves thereupon right Ideas: fo they
may remain in Ignorance, or even run into
Miftakes about thefe Points, if they will not
make good ufe of their Underftanding : and this
Anfwer hath nothing in it, but what is moft folid.
God
"^
hazing endued Man ivith thofe Faculties
of
knowing which he hath^ was no more obliged by his
Goodnefs^ to implant thofe innate Notions in his
Mind, than that having given him Reafon, Hands.^
andMaterials, hejhould build him Bridges, or Houfes.
To alledge therefore the Abufe, which Men make
of the Light of Nature in Matters of Morality,
as a Proof that there is no Certainty in it
j
is as
poor Reafoning as that of the Epicureans : who
think to fubvert true Religion^ by fetting forth
all the Evils, Crimes, and Extravagancies that
falfe Zeal, Bigotry, and Hypocrify, under the
fpecious Pretence of Piety, have occafion'd in the
World, ^'tanttim RelUgio potuit fuadere Malorum!
But let US only confider this Matter in a different
Light, and we fhall find this Objedion it fclf
furni{h us with a confiderable Proof, or at leaft a
Prepofleffion in favour of the natural Evidence of
the Principles of Morality
j
and of that Impref-
iion, which there is reaibn to believe thele
Truths wou'd make on the Minds of all Men,
did they but hearken to Reafon. In efFeft, it
appears by Hiflory, that thofe Nations, which
feem to have had no fenfe at all of Virtue, are
very few in Number. By the Confeflion of Mr.
Bayle,
^
7'he mojl general Rules
of
Morality have
heeti preferv'd almojl every where, and have at leafl
obtained in all Communities , where Reafon and
Knowledge have been at all cultivated. Is there any
Nation,
'
( fays a very great Orator, and hea-
then Philofopher,) where Civility,good Nature, and
Gratitude are not thought amiable, and had in c-
flcem ? And where the proud, the mifchievous, the
cruel, and ungrateful are not had in Contempt and
Abhorrence? It has too been very judicioufly ob-
ferv'd, that
"
No Legiflator cou'd ever yet procure
Laws, that were entirely bad, to
pafs : The Mana-
gers
concerned in
paffing fuch Laws, have either dex-
teroufly
tack'd 'em to others that were good j or elfe
have had recourfc to violent Meafures, either to e-
flahlip, or to maintain 'em
; fo
that the tery
fuh-
miffion to
unjuft Conftitutions, is even a Proof of
the
neceffity
of
equitable and good ones. Ic will per-
haps be reply'd, that it is the Profit, which ac-
crues from the Practice of the Rules of Monility,
that caufes 'cm to be generally approved
and re-
ceiv'd into the World. But, tho' this cannot be
deny'd to contribute much towards it
;
yet is it
not the only, nor the principal Reafon thereof.
For 'tis very hard to conceive, that in fo many
different places, and in all Ages, fuch Multitudes
of every Rank, Condition, and Charafter, fhould
have given their Confent to thefe fort of Maxims,
merely for the Advantage each Perfon for him-
fclf found therein} fo as at the fimetimeto think
themfelves exempt from all Obligation to obfen'c
them, whenever they cou'd Tranfgrefs with Im-
punity. Indeed there has been, and ftill are too
many, without any other Regard foi them, than
upon that foot} whether it be, bccaufethey have
accuftom'd themfelves to do fo, in order to fatisfy
quietly their PalTions
>
or whether becaufe they
have fuffer'd themfeh'es to be impos'd upon by
fome ill-grounded Subtilties: but then we fee,
that the wifcft and moft fcnfible part of the
World have, at all times, judg'd of 'em quite o-
therwife. Nay all, whether learned or unlearn-
ed, have found in 'em a certain Agreement with,
and Conformity to right Rcal'on
;
and that
too more or lefs diftinft, as they have been en-
dow'd with more or lefs good natural Senfc : and
in proportion to the Progrcfs each Man has made
in Reafoning and Knowledge, he ftill finds this
Agreement become more and more fenfible. Men
have always [diftinguilh'd the Idea of Duty, from
that of Profit
j
even in thofe Maxims, where
thefe two Ideas have been moft infcperably blend-
ed together: the firft of thefe, even when they
fcarce, or not at all percciv'd the true Foundations
thereofi has ftill made an Imprellion, fufficient
to form in them fuch a Conception of it felf, as
carries with it a peculiar Force and Efficacy
;
plain-
ly diftinft from, and independent of that of the
other. Men have fcarce ever been able to for-
bear fecretly reproaching themfelves, as oft as
they had facrific'd to their Intereft the prafticeof
that, which they look'd upon to be their Duty.
And it has even been obfcrv'd, that
*
wicked
Men would choofe, fwere it poffible) to enjoy
the Fruits of a criminal Aftion, without commit-
ting the Crime it fclf If we reflect rightly up-
on the Matter, it muft be own'd, that the grofs
ofMankind are not fo much as capable of compre-
hending, or feeing to the end ofall thofe profpefts of
Utility, which a skilful Lawgiver, or profound
Philofopher, might have had in view : fo that it
often happens here, that the Notion of Duty a-
lone makes the Impreflion
j
and it is likewife
the Intention of the Law-maker, that it {hould
*
See Silv/t Philologist of Mr. LeClerc, publifh'd in 171 1, at the end of his Efchines ; Cap. 2, towards the end.
*'
Locke's Eflay, /i&. i, cap.
4,
. 12, p.
75,
French; and/. 42.- Edit. Lond. 1706.
'
Lucret. Lib. 1, ver. 102.
<
Continuation of divers Thoughts, fcfr. p. 762.
'
^a autemNatio non Comitatem, non Benignitatem,non gratum animum l^ Beneficii memorem diligit? ^afuperlos, qua
maleficos, qua crudeles, qu<s ingratos non afpernatur, nonodit? Cicero de Legib. lib. 1, cap. 11.-
"
Biblioth. Uaiverf. Tom. 8, p. 527._
*
See the Paflages citedini'w^Mi/. //*.
3,
chap, i, . i,Note^; and add there the following Words, which come after that
of Seaeca : Maximum hoc habemus Natura meritum, qutdFirtus in gmnium animos lumenfuum permittit : etiam qui non fequun-
tur Warn, vident, Dc Benefic 4, 1 7.,
do
of
the Science ofMoRALixr.
lo
do fo;
for they well know the great power that the eflablidiingtheSohdity
ofthe
Maxims ofMo-
chis
Notion oFDuty has over the Minds of Men, ralityj and that will at the fame time
fliow that
and
that it in many cafes lies level to the Capaci- they are adapted to all Capacities.
For,l"iacethc
tv
of
Multitudes, who have no Idea of the ex- Creator, who no doubt defigns that all
Men
p'cdicncyof
the thing; which often mounts higher fliould be happy, has fo manitelHy and
inrepcra-
than
their pitch of thinking can reach. Hence bly connected human Virtue and human
Felicity
j
it
has fometimcs happen'd, that Religion has been it is clear, that he indefpcnilibly requires of every
caird in as an Auxiliary
>
arid the Law-givers have one an exaft Obfervation ofthe Law of Nature-,
given out, that their Laws were of divme Extra- and confequently, that the Principles and Rules
dion.
After all, this Reply fuppofes that^ which thereof ought to be fuch, as may be eafily known
will
alone furnilh one good Argument, towards and demonllrated,
SECT. V.
I
Conclude then, with the faying of Strata in
the Ntul Dialogues
of
the Dead *, whatever
the other Party may fay of it
j
that Reafoon.
in all Cafes where human Condaii is concern^
d^ affords
Refoltitions
moft
clearly decifive. But the Misfortune isy
that 'we don't confult her. And it muft beown'd,to the
fhame of Mankind, that this very Science, which
ought to have been the great Bufinefs of Men, and
the chief Object of all their Search and Enquiry}
has in all times been treated with the greatefl
Ncglcd and Indifference.
*
Socrates was afto-
nifh'd to fee. That when there was occafion to have
any one taught the Trade
of
a Shoemaker^ a Car-
penter, a Sfnith, or the Art
of
Riding
;
proper Pla-
ces were never wanting, whither he might he fent,
to he made a Mafier
in thefe forts
of
Things : and
that, there was every where plenty
of
fuch, as knew
how to hreak, and manage Horfes and Oxen; where-
as,
if
any one had a mind to he inftruiied himfelf in
the Rules
of Juflice,
or have 'em taught to his
Children or Slaves
i
there was no place to he found
to go to for
that Purpofc. A confiderable time after .
this Philofopher's Days
'',
we find Cicero making
the func Complaint : fVhat can be the reafon, (fays
he,) that, fnce we confift of
a Soul as well as a Bo-
dy, the Art
of
curing, and preferving the Body in
Health, has been
fo
early fought out
j
and found
fo
ufeful, as to have its Invention afcriVd to the Gods
themfclvcs : IVhereas the Art
of
curing the
Difeafes
of
the Mind, has neither been near
fo
much fought
after before, or cult ivatedanditnprov'd after, it was
invented
-y
nor has it been had in Eflecm and Admi-
ration, but by
few ; whereas on the contrary, it has
been even bated andfufpeUed by many ? It is, how-
ever, no very difficult Matter to difcover the
Reafons hcreofj and 'tis withal highly ufeful, to
give 'cm their due Confideration. It it but too
certain, that the feveral Neceffities of Life, real
or imaginary
;
the falfc and millaken Interefts
>
the
'
Impreflions of Example, and receiv'd Cu-
ftoms } the Prevalency of Fafhions, and the Tor-
rent of Opinions in Vogue, with the early Preju-
dices of Educati&nj but, above all, the predo-
minant Paffions and Vices) do generally draw off
the Minds of Men from a ferious Study of Mo-
rahtyj and won't let them apply their Faculties
to thofe Things, which really are their moft pro-
per Objects
;
and on which too really depends their
true Felicity.
^
Philofophy (fiys the Author of the
Dialogues, a little before cited, veiy pleafintly)
has no Bufinefs hut with Men, and not at all with the
reft of
the univerfe. The Aftronomer fixes hii
Thoughts upon the Stars; the Naturalift on Nature;
and the Philofopher on himfelf. But becaufe
Men
find
it trouhlefome, to have her meddling with
their AffairSy
and perpetually at their Elbows, check-
ing and regulating their Paffions ; they have there-
fore fent her away to the Heavens, there to take art
account
of
the Order and Motions
of
the Planets
;
or elfe they travel her over the terreftrial Globe, and
make her examine with the
utmoft ExaHacfs allth.if
is there to be feen. In a word, they take care al-
ways to employ her at asgreat a difiance from them-
felves as is pofjtble. The few, who have applv'd
themfelvcs to the Study of Morality, have done
it for the moft part in a manner conufs'd, ani
fiperficial enough ; and often fo, as even to build
upon Principles either entirely falfe, or obfcure
and uncertain
;
either foreign to its proper Bufi-
nefs, or mixt up with grcifs Errours and Abfurdi-
ties. From whence it comes to pafs, that in all
Languages, the Terms of Morality, both in
Dialogues of the dead Ancients viith the dead Moderns, by Mr. Fontenelle, Dialog.
5,
p. m. 208. Oeuvr. de Font. to. i,
p. 102-. "Ed. Lond.
*
Tlx^iyiVijo [0 'Itijiou] "m ^uK^dti f^iy^vli 'agi< Ttvof, ui ^aufjut^v ii to, h /jS^ t/ fi'ovKoiTO (DU/re* J)Jii^a.^i vva^
S riKTuva, S )(a,KKti, h iw'tia, fii Sot^hc oTni etV 'rr'iu.-^a.i tkt Tjy$i' {puffi / mi< )^
Wnov
)y
^xp t&) |(?aAoV
ctiyjiiysf
Tnilim.S;^, Wi'7* ,a5sa eiviu r^ JiSu^'ov-mv) Sic S^ ti( HisKnrtu J) auTit pca^HV ii JincLiov., ii vio'j n or/Anv -tiJh'-
{ai3^, //H HCfl/, o-mi iv tK^duv Tvyci rirts- Xenoph. Memorab. /.
4, c.
4,
/.
J;
Ed. Oxon. fa" Ed. Paris, p. 804, B.~
'
^idnam
ejfe, Brute, caufie putem, cur, quum conftemus ex animoij Corpore, Corporis curandi tuendiquecauffd quitpta
fit
Ars ejui, atque utilitas Deorum immortalium iiiventioni confccrata ; Animi autem medicina, 7iec tarn de/iderata fit,
antequam in-
venta ; nee tarn culta, pojiea quam cognita eji ; nee tarn multis grata iff probata ; pluribus etiam fufpcBa iS invifa ? Tufc. Quift.
lib.
3, cap. I."
"^
Parvulos nobis dedit [Natura] igniculos, quos celeriter malis moribus, opinionibufque depravati, fie
rejlinguimis ; ut
nuf-
^uam Nature lumen appareat
:
Simul atque editi in lucem,
^fufcepti fumus, in omni ccntinuo
pravitatc, (J in
fumma
epinionum
perverfitate verfamar. Accedunt etiam Poeta : qxi, cum magnam fpeciemdoBiinte, fapientiaq;
pr.'C
fe tulerurJ;
andiuntur,
leguntur, edifcuntur, isf inh^rej'cunt penitus in mentibus. Cum vero eodem-fuaji
maximus
quidam Magiflcr Populus
accejjit, atq; omnis undiq; ad vitia confentiens Multitudo ; tunc plane inficimur ofinionum
pravitate^, i Naturaq;
defcifcirnus.
^id, qui fccunire cupiditate, qui voluptatum libidineferuntur ? Sex:. Idem ibid, cap-
i-'&"2~.
to believe ;
that they had neither Virtue nor
"
Probity enough, to perluade Men to place a
"
much greater Confidence,
in the Purity of the
"
Hearts than in the exterior Practices iof divine
"
Worfhip ;
and
Disburlements
made on account
"
ofReh"-ion."
The
Profit of the Prieib wou'd
have been^'too
much diminifii'd, if Men had fol-
low'd the
Maxims of the
Philoiophers. I Ihall
add to this a gentle Wipe that Socrates gives 'cm,
in that Dialogue o? Plato,
which bears the Name
o? Eulhyphro', that is, of him \.nt\\\v\iom Socrates
is introduc'd
difcourfingj
(whofe Gra/^ Name an-
fwers exaftly to another Greek Name more in ufe
with us, called Orthodox ; /. e. one that is in the
right). He was a Soothftycr,
and Socrates iccms
to reproach in his Perfon the Prielts in general,
as well as others of that Stamp
>
with being too
refervid in
comnmnicating
themfches ;
and that they
did not willingly
impart to others their Wiidomj
that is to llxy, their Knowledge, or what they
themfelves had
difcover'd. By which in all Like-
lihood he intends chiefly
what relates to Mora-
lity j
as is intimated by the
Oppofition he makes
between
their Conduft, and the Condudl himlelf
obferv'd in his
Converllitions 5
which ran gene-
rally upon that Science : and which tended Iblely
to correa the Errors of Mankind, and infpirc 'em
with the Love ofVirtue.
Befidcs, the very Sub-
jet of the
Dialogue
gives us clearly to under-
i^lsui yif s'j fih
tToxHf
airtivitiv (TiMiiv 'TTcLfi^w, )(g.i ///aVkhI' 01/* e94Aw Ty ffiavn ffefirtj-. Tom. i,
p. 3,
D",
Ed.
Steph. Ed. Lsmar. p. 48,
E-.
b
Pufend.
lib. 2, chap. 4,
Seft.
3,
Note 4.
ftand the falfe Ideas the Pricfts had, upon the
Subjeft of Morality -,
for Ave there fee Enthypbro,
who thinks he is doing the fineft Action in the
World, offering himlelf as a voluntary Acculer
againft his own Father} in a Matter too, where
he pretends to convict him of no lefs than Mur-
ther. Some perhaps will objeft to me here,
what I have elfewhere ihewn in
^
one of my
Notes } that, amongft the Heathens, even the
common People were not ignorant, that as Vir-
tue was well plcafing
j
fo Vice w;is odious to the
Deity : From whence one might be apt tjo infer,
that the People were beholden to the publick
Minillers ofReligion for this Knowledge at lealL
But it is very probable, that Principles of tliis
fort were prefcrv'd among the People, either by
ancient Tradition ; or by fome Remains of the
Light of natural Religion; or by both thefe to-
gether: And that, if the Priells did not directly
teach the contrary, but did fomctimes even re-
commend Virtue; it was only in general loofe
Terms, without ever entring into the Particulars
requifite for Liilruftion
3
which witliout doubt
they were not very capable of doing. But this is
fufficient for my Defignj which is to fhe\v,that>
in the Time of Paganifm, the publick Minillere
of Religion, who ovight to have made it their
principal Study, bufied themfelves about nothing
lefs than this Science of Morality.
SECT. VII.
AMongft
the Jews,
it does not appear that
the Priclts apply'd themfelves to this Sci-
ence: And from the Time that Prophets
ceas'd
from
among that chofen People of God
^
that is to
fay, a httle after their Return from the
Babylonip
Captivity j
the Doctors and publick
Interpreters
of the Law began infenfibly to cor-
rupt
Morality
; fo ftr were they from unfolding
the true
Principles
thereof, and drawing out thofe
Principles
into all their Confequences ;
as they
mi<^ht eafily have done, with the Help and Af-
fiftance of that
Revelation, of which tiiey were
the
Depofitaries:
But being entirely bufy'd about
their Civil Law, or the Study of Ceremonies
;
and befides
fill'dwith
carnal Prejudices, and fcru-
puloufly attach'd to the Letter of the Law; they
either did not at all penetrate into, or elfe did en-
tirely
frultrate and confound the Spirit and De-
fign of the
Legiilatour. They, on pretence that
God, to fute himfelf to the Weaknefs of the Jcw-
iJJ}
Nation,
had prefcrib'd to 'em a great Num-
ber of
Rites and Ceremonies ; infilled much more
upon
the
Performance of the exterior Worfiiip,
and the
praftical
Punftilio's of Devotion
;
than
the Purity of the Heart and Inclinations, with an
exat Conformity, and fteady Adherence to the
Rules of Virtue; and what was Hill worfe, by
their filfe Glofles, and by their human
*
Tra-
ditions, they came at lall to Jdeftroy entirely (e-
veral of the moil inconteftable Principles of the
Law of Nature. They invented, for example,
a thouland ridiculous Subtikies, to furnilh Men
with Expedients for eluding the Obligation of
the molt folemn Oaths, and Promifes. IFhofoe-
ver, ( fay the Scribes and Pharifees, whom
Jefus
for that Reafon treats as Hypocrites andblind Guides)
JVhofoever
^
jhall fivear by the 7'emplc, it is nothings
hut whofoe-ver pallfivear by the Gold
of the Temple^
he is a Debter : or,
obliged
to keep his Oath. JVho~
foever fljall
fivear by the ''^^ Altar, it is nothing
; but
whofoever fweareth by the Gift (or Offering) that
is upon it, he is guilty : or obligd to keep his Oath.
IFbiljl they paid
f
fitbe
of
Mint, and
Jnife^
and Cummin, they omitted the iveightier
Matters
of
the Laiu,
|| Jnftice,
Mercy, and Faith. 'Tis one
of the cle:irefl Maxims of right
Reafon , that
every Vow
"
contraiy to any divine Law, is in
it fcif entirely void. Yet the Priclts, and the
Doftors who were their Dependants, finding
their Account in Vows which Men made for
"
Hevery much '"exaggerates theBoldnefs of the
"
Arians and Macedonians
;
who were then as nu-
"
merous at leaft as the Orthodox, and did pre-
"
fume to aflemble themfelves together, and form
"
Churches
;
outragious Attempt ! and that too,
"
after the Determination of fo well regulated a
"
Council,
^^^
as had been held but juft before
!
"
Gregory too did not comprehend, how h^Holinefs
and his Gravity (for this was the Style in which
they accofted their Bifliops, and he was then ad-
drefling himfelf to NeSiarius) cou'd tolerate the
1111
Apollinarian Meetings. " He conceiv'd, for
Epift. 66, p. i66_, 167"
""
Bibl. Univ. Tom. XII,
f.
309.
ex
Epift. 59, p.
129". Ed. Oxon.
fp Bibl. U?nv. uhi fupra, p. 332,- 333." See alfo what is faid Page
334.
"!i
Nego ttllomodo jieri
poffe,
ut homini, qui qiiidemvere
juftusfit, ejufmcdi cafus euetiiat.
fon..
And" whereas
f
the Emperour Julian^
"
adding
Infult to Perfecution } was us'd, when
"
he ftripp'd the Chriftians of their Goods, by way
"
of raillery, to Giy} that what he did was m aid
"
of the Gofpel, which commanded 'em to de-
"
fpife all thofe Things} fo Gregory., being to an-
"
fwer this, amongft other Things fays, that
Ju-
*'
//^,abing in this manner, muft needs haveima-
"
gin'd,that the PaganGo6s, were well pleas'd to
*'
fee innocent Men defpoil'd of their Goods }
and
confequently that they approv'd ofInjuftice. This
Anfwer might have fuffic'd: but he adds, that as
there are fome things which Jefus
Chriji has ftrift-
"
lyenjoin'd}
fotherewereothers,whichhe barely
"
propofesto fuch as lliall be inclin'd to do them}
"
without obliging
any Perfon whatever to an
"
indifpenfible
Performance. Such, according to
*'
Gregory., is the
Commandment to abandon tlie
"Things of this Life:"
Whereby 'tis plain, he
fuppofes here a pretended
Matter of Advice, to
voluntarily
renounce and abandon our Goods}
and that without any other Motive, but our own
Free-will and Pleafure : whereas it is a real obhgato-
ry
Command} but fuch as then, and then only takes
place, when the retaining our Goods is incompati-
ble with ourDuty} or becomes impradicable, with-
out the Violation of fome Precept of the Gofpel.
St.
Ambrose
'"
does fo run himfelf beyond all
Bounds in his Encomiums on Virginity and Cele-
bacy} that he feems to make it hisBufinefs to cry
down
Marriage : and rcprefent it as a Thing fcarcc
reputable. He fays plainly enough,
^"^^
That before
the Lavj
of
Mofes, and that
of
the Gofpel., Adul-
tery was not forbidden.
And loofe as he is upon this
Article, he appears rigid enough on another
} I
mean, that ofputting out Money to Intereft
:
which
he abfolutely
condemns, in all Cafes whatever,
*
without Diftindion. His Treatife oi Offices., is
aBook which he compos'd to teach Ecclefiafticks
their refpcftive Duties.
"'^
And tho' the Name
of
Minifters be omitted in the Roman, and following
Editions; yet it is to be found in all the Manufcripts :
} Biif- Univ. ubi fupra, p. 45-, 46.
'
De Inftitutionevirginum, (^ ptijjtm alibi. See Dull, de iifu patrum, p.
272".
"*'*''
Confideremus
primiim, quia Abraham ante legem Mayj't, & ante Evangcliumfuit, cum nondum interdiBim adulteriiim vide-
retur.
Pcena criminis ex tempore legis
eft,
^e. Lib.'i, Dc Patrhrch. Abrah. cap. 4.
See Dall. de ufu Patr. ubi fupra,
p 271
,272', and Mr. BayleV Did. Tom.
3,
/. 2670, in the Notes, C0I.1-.
Thereupon, he be-
"
itowsvery great Encomiums on his Courage and
"
Prudence. Then heexcufeshim for having
"
confented tothe Adultery of his Wife, upon this
*'
Confideration ; that Death, not being as yet de-
"
veiled of his Tyranny over Mankind, could not
"
but be very formidable at that time. After
"
this Encomium on the Husband, he proceeds to
"
the Commendation of the Wife 5
and fays, that
"
flie very couragcoufly accepted the Propofil
>
"
and that fhe did all that was requifite on her
"
part, to make the Plot of the
'"
Play fucceed
.
"
Whereupon, he exhorts all Wives to follow her
"
Example
>
and then emphatically
cries out :
"
"f
Who is he that can forbear admiring
this won-
"
derfulReadinefs to obey? Wjo can ever ftffiuently
"
celebrate the Praifes
of
Sarah, xvho after
fo much
"
Continency, and at her 2ears, was willing to ex-
"
pofe herfelf
to
"""""
Adultery
j
and deliver up her
*'
Body to be enjofd by Barbarians, that fhe might
^''
fave the Life
of
her Husband? Nor is the
"
Elogy, St. Ambrofe beitows on the
"
Charity
"
of Sarah on this Occafion, lefs remarkable.
"
St. Auftin
too, reafoning upon another Inftance
"
of the fame Nature,
feems to have been un-
"
der the Uke Tllufion. Is it not a very ftrange
"
Thing, that fuch bright Ornaments of the
"
Church as thefe,with all their Virtue and Zeal,
"
fhould be ignorant} That it is not lawful either
"
to five one's own, or another's Life, by any
"
any Aftion that is criminal?
"
St. Jerome^^^ every where inveighs againft Ma-
"
trimony in general, and more cfpecially againft
"
fecond Marriages
j
and his Tnveftives are fo bit-
"
ter and violent, that notwithftanding all the Sa-
"
vingsandSoftnings he has thrown in, quite thro'
"
his Epiftle to Pammachius, wrote for that Pur-
"
pofe
J
one cannot but difcover, in every Thing
"
he fays
on that Subie6l,an entire Conformity
"
with the Opinion otertullian: which has been
"
condemn'd by the Church, as injurious to the
"
Honour of Marriage
;
and contrarv to Holy
"
Writ.
'"
He condemns all Oaths
"'
without
"
Diitintion. He forbids
'"
Chriftians to pay
"
Tribute to Infidel Princes. He ad\'ifcs
"""
and
"
approves of the Aftion of thofe, who murder
"
themfelves,for fear of having their Chaftityvio-
"
lated. He often talks of Virginity, and the mo-
"
naftick State, in fuch a manner, as to make one
"
almoil; believe it abfolutely necefHiry to Salva-
"
tion. Labours, Faftings, Aufterities, and other
"
Mortifications, with Solitude, and Pilgrimages,
"
are the Subjeft-Matter of almoft all his Coun-
"
fels, and Exhortations." He
"""
plainly enough
gives us to underftand, that
'*'*'
Jefus Chrift has abo-
lifh'd the Permiflion of eating the Flefh of Ani-
mals
}
in the fame manner as he abolifli'd Divorce
and Circumcifion. Every body knows, with how
much Fury, and with how little Honefty he in-
veigh'd againft /^/gi///^
J
who had wrote againfl:
the WorOiip, which at that time began to be paid
to the Reliques ofSaints and Martyrs , as alfo againft
divers other Pra6lices, the dangerous Confequences
Horn.
33,
in Cenefin. Oper.
???
Du Pin, />. 262, Col. 1-. See the Place: Tamen non videtur, quoi vir Chriftiams, iff jufttis, {if fapiens, quterere
fibl
vitam aliena morte dcbent : utpote qui, etiamfi in latrmem armatum incidat,ferientem referire nonpojjit ; ne, dumfalutem defendit,
pietatem contaminet. Lib.
3,
cap.
4.
*
Lib. I, cap. 23. Sec what I have faid thereupon in my Traft of Play, Lib. \, Chap.
3,
SeB. 3.
J-
Sec Mr. Noodt, De Ufuris is' Fcenore, lib. i , cap. 4. & 6.
*'*'''
Gen.yXx, 11, 12. N. B. .S;jr^i?vr/?ir fays the fecond, by miftake.
'"
I make ufc here of the Words of Mr. Bayle, in his Diftionary, Article Abimelech, l^ote (J).
''''''
'O fxiv to; c/>Va/-, ly a'prvJa^H xj wia Tnta, 'rs { 'io-pv nv /xatx^M
in-^wcu. Ho
^om. I, ^.258 ,
Edit. Eton.
'"
XXiv-n mtH, u^. 75 J'fy.fxa, A*9hi', ibid. Chryfoft. Tom. I, p. 260, lin.
5,
Edit. Eton. Fid.
p. 258,
lin.
35:
p. 259,
lin, 12.
f
Ibid. p. 260, lin. 28.
''""'"
Kai eti luaryHov l^t/TM" icfiAiym, )^
nvvs'loi hvl^n ^a^Caeim!.
Ibid. p. 260, lin. 30.
"""
De Jbnibam,' L'lh. i, cap. 2.
'"''
Sec the Article pf Adnd'jnus Septimitis, in Bayle''% DiHionary, and Notes {A),
(5),
(C).
f?P
Thefe .arc the Terms oiDaill'e, De UfuPatrum, p.
276".
IT
Epifl.
adPammach. Hicr.Op. Tom. 11, p. 101, A-,hd. Ed. Bafil, ff alibi pajpm.
'"
Du Pin, Tom. Ill, p. 136,
Col. i-,
2~.
, .
'"
Co?rim.ouMM\\. Chnp.v,
34,
andZachar. c. 8, Oper. Tom. VI, /. 313, B".
'"
On Matth. Chap, xvii, ver. 25.
*""
Comm. on Jonah, Chap, i, ver. 12, Tom. VI, /. 150, D-, Oper. Hieron.
"'"'
Dall.
detifu Patrum,
p. 277".
--, .
yy Lib. I, adv. Jovin. Tom. II, p.
30'. This PalTage is cited in the Canon Law,
Diff.
35,
Canoa i'.
. whereoG
H
An Hijiorical and Critical Account
whereof,
procefs of Time has fince but too plainly
fhewn
us. The little Traft of St. Jerome's
againll
this Presbyter is Ihiff'd quite full of grofs Abufes,
and falfe Reafonings^^j
contrived to raife popular
Odium againll his AdverCiry, whom he wanted
good Arguments to confute.
Sx..Jufthi^
endeavouring to make an
'
Apology
for the Complaifince, which Abraham fliew'd his
Wife, on account oi Hagar; pretends, that the
Wife can convey to another Woman,the Property
which ihe has in the Body of her Husband
j
and
that the Husband alfo can transfer to another Man,
the Power which he has over the Body of his
Wife: and, what is ftill more furprifing,he founds
this Paradox on a PafTage of St. Paul,"- the Mean-
ing of which he for that purpofemoft wretchedly
miftakes. This Father is fo bold as to maintain,
that every Thing by Divine Right belongs to the
Juil, or Faithful
'>
and that Unbelievers have no
right to poflefs any thing: abominable Principle,
that entirely deftroys at once all humane Society !
but behold another of 'em, every whit as detefta-
ble; and which alone 'is enough to call an eternal
Bkmif}} on ihe Memory.ofth.eBi{h.opo( Hippo : 'tis
t\ns^that, after having declared it as his Opinion^ythat
Lenity and Charity ought to be the Meafure of
our
CondtiSt towards Hereticks ; he became
fo
heated ivith
the Contefis he had ijcith the Donatifts, as to change
at once from white to black
j
and openly maintain^
that Hereticks ought to be perfecuted, and by Force
compeWd to embrace the Orthodox Faith j or elfe to be
utterly deflrofd and extirpated: which certainly is,
as a famous Minijler amongjl the Reformed obferves,
a
moft
terrible and inhumane Opinion. There are
two of this
'
Father's Epiftles, that any one may
read in French ; which were made ufe of to juilify
the laft Perfecution in France: fo that St. jiuflin
may juftly be fiid to be, in a manner, the Grand
Patriarch of Chriflian Perfccutors. This Inftance
of Perfecution ought to be well taken Notice of;
for it will be found not to confine itfqlf to the
Bilhop oi Hippo : and it does alone aiford us a moll
manifefl Proof of the grofs manner, in which the
Chriftian Doftors have ncgleded, or rather disfi-
gur'd and cormpted Morality. If ever there was
a
Pofition contrary to all the Dilates of right
Reafon, and natural Equity; to Charity, good
Polic}^, and the Spirit of the Gofpel; 'tis, with-
out doubt, this dctellable Doftrine of Compulfion,
and Perfecution for the fake of Religion. And yet,
ever fince the Church began to enjoy any Quiet or
Repofe, this has been the common Opinion ; which
accordingly has been, for the moll part, all along
aftually put in Pradlice,
'
by the flronger Party
againd the weaker. The Codes are full of Penal
Laws againft allSets,but the Predominant; ''and
they are the Councils.^ Bifhops, and mofl eminent Do-
Hors-i
who have ever been the SolUcitors
of thefe
Laws; and have honour'd with large Encomiums,
Acclamations, Benedictions, and with the mofl hum-
ble Thanks and Acknowledgments
; thofe Sovereigns,
who have either made
fuch Laws
;
or vigoroujly put
them in execution.
St. Leo, in the Opinion of Mr.X)a Pin,
is not
very fertile in Points
of
Morality : handles 'em but
drily ; and in a manner which diverts, rather than
affeEls
or moves his Readers.
In the Time of 'theodofius the Younger, the Bifhop
o'i Sufa, xhz Royal City of
Perfia,
whofe Name
was Abdas, (or rather Abdaa) ; ' took the Liberty
to burn one of the Temples where they worfhip'd
Fire'. The King, ('twas Ifdegerde) inform'd
thereof by the Magi, fent for Abdaa
;
and after a
veiy gentle Reprimand, order'd him to get the
Temple, he had deftroy'd, rebuilt. But thcBilliop
could not be brought to do anything in the Mat-
ter
j
tho' the King thrcaten'd, by vvay of Repri-
fals, to ule the Churches of the Chriltians in the
fame manner; which he accordingly executed af-
terwards, on the obflinateRefufal oi Abdaa: who
chofc rather to lofe his Life, and expoie the Chri-
flians to a furious Perfecution, than to obey an
Order every way jufl and reafonable. Thcodcret,
who reports this Story, does
*
not deny, but that
the Zeal, which tranfported Abdaa to burn the
Temple of the Perfians, was unfeafonable and ill
tim'd ; but he maintains, that his refuial to rebuild
fuch another Temple, fiiew'd aConftancy worthy
of all Admiration; and of the Reward of thePa-
fian Empire : for, adds he, it is as great an Impiety
to build a Temple to Fire, as to adore it. But
"
"thei'e is no onePerfon whatever, whether Me-
*'
tropohtan, or Patriarch, who can difpenfe with
*'
this Law of natural Religion; "fhat every one is
"
bound to make amends by Rcftitution, or other waySy
*'
for
the Damage he has done to his Neighbour. Now
"
Abdas here, a private Man, and Subjeft of the
*'
King oPerfia,h:id deftroy'd what was the Goods
"
and Property of another ; and in a Cafe, v/here
"
theThing deflroy'dhad the extraordinary Privi-
"
lege of belonging to the Ellabliih'd orPrcdomi-
"
nant Religion. And toi"ay, that the Tem-
*'
pie which he fhould have rebuilt, wou'd have
"
been apply'd to the Service of Idolatry, was but
"
a lame Excufe ; for he himfelf wou'd not have
"
employ'd it to that Purpofe : neither was he to
"
have been anfwerable forthe ill Ufe, which the}',
"
to whom it belong'd, fhould have made of it.
"
Is it avalidReafon, forthe not returning aPurie
''
one has ftolen, to fay, that the Perfon, from whom
"
he took it, is a Man that employs his Money in
"
Debauchery? But befides all this, what Propor-
"
tion was there betwixt the rebuilding one Tem-
"
pie, without which the Perfians wou'd have re-
"
main'd as great Idolators as before ; and the De-
"
ftru6lion of a great many Chriftian CJhurches?
"
In fhort, was there any thing more capable
"
of rendring the Chriftian Religion odious to all
^'^
See the Dijfert. of Mr. Le Clerc, entitled, De Argument/) Theolog. ob invidia duSlo, which is jufl .ifter his Latin Ltgich,
7om. I, Op. Philofoph. p. 25o_, ^V.
'
De Chit. Dei, Lib. 16, Cap. 25", *
I Ci^r. vii, 4.
3 Epijl. 153,
Tom.U, Ed. Benedia.
b" Co/. 250, D', Ep.
54,
Ed. Bafil.
See Le Comm. Philofoph.
fur,
Contrain-les
Centra-, Part III, p. 130, (J fuiv.
*
John Claud. Epift. how to read the Fathers, i^c. at the end of the firft Edition of his Ouvcrture de PEp. aux Rom.
p.
s
See Part III, of the Philofoph. Comment, and Vol. Ill, of Jrs Critica of Mr. Le Clerc, p. 353-,
Edit. 2.
pie
who dcfir'd
nothing elfe, but liberty to
propoic
their Doftrine ^
have the Confidence to
andthen
refufe to rebuild them, tho' enjoin'd But he feldom or never
'*
infijls on the
Explication
of
Cap. 23,
Ed. Lipf. 1709. And p. 30-, Ed. Elzev. See alfo Repiib. dn Lettres, of Mr.
Bayle,_Mayib^^ p. 244,
tsc
*
Leritis enim in facerdotitim a/pimpfs, nulla portio data, quo liberius fervirent Deo. Ibid. p. 30 ,
Edit, iilzevimni.
4. Auro Incubant. Perhaps this means, that they love Gold very much, that they feek after it, and
guard it with great Ware;
brooding, if I may fay fo, with their Eyes, over their Treafures. See Virg. Georg. 2, 507.
.Mneti. 0,
bio.
1111
P. xx^-,l3 d. ^/>. Elzevir.
'
See Pacatui in his Panegyrick on Theodcfius, cap. 29,
Num.
3,
p. 404-,
Edit. Ceiur.
of
50
\An Hiflorical and Critical Account
*'
of the
II
SpaniJIj Bifhops
>
who then began to
*'
employ the Secular Arm againft thofe Peo-
*'
pie : and at length caus'd many of them to
*'
be put to Death. In his firll Dialogue,
''
he
"
gives a clear Account of the Violences, which
*'
Theophilus, Bifhop of Jkxandria^ employ'd a-
"
gainft Hereticks
j
and alfo of the Pride of the
*'
Clergy of France.'"'' One of the moft fimous
Doftors of that Century, is St. Jerom^ a Man
full of Choler and Paflion, if ever Man was fo.
He had always been a great Extoller of Ori-
gen,
'^
without any the lealt mention of his Er-
ro'.irs } whether it was that he thought 'em in-
confiderable >
or that he judg'd 'em pardonable,
on account of the many good and ufeful Things
he had written. But when once the Ar'ians
began to take Advantage of Ongeiii, Autho-
rity
5
more efpecially when John.^ Bifhop of
Jertifalem, who favour'd the Opinions of the Ca-
techift of yikxandria, had drawn upon himfelf
the Indignation of St. Jerom ;
he then fell a
railing moil unmercifully againll On^f ; whom
he had formerly cry'd up to the very Skies
>
and fet himfelf
*
violently to perfecute the Ori-
genifls. RuffinuSf
who had been St. Jerorn's great
Friend, having declar'd himfelf for Origen-, and
having alledg'd for his Defence, thePraifes which
St. Jerom had given him
;
what does our hum-
ble and pacifick Prieffc do, but immediately write
a Book, full of the bitterell Gall and Paffion a-
gainft
Ruffinus.
The fame Spirit reigns in his
other Works, where he had to do with People
he did not affeft. St. Cyril^ Patriarch oi Jlesan-
dria, was, in the
|||j
Opinion of Mr. the jibbot
Du Pifiy
"
a Man ambitious and violent ; who,
"
feeking nothing but to augment his own Au-
*'
thority, no fooner fiw himfelf rais'd to the
*'
Epifcopal Seat, but he expell'd the Novatians^
"
by his own Authority -, and plunder'd their
*'
Bifhop of all the Goods he was poifefs'd of.
"
He attack'd the Je-MS
in their Synagogues,
*'
at the Head of his People > took away their
*'
Synagogues from 'em, drove them out of J-
"
lexandria
;
and gave their Goods for plunder
"
to the Chriftians
;
grouixling himfelf, no doubt,
*'
upon that pious and holy Maxim of the Bi-
*'
fhop of Hippo
;
that every Thing belongs to
**
the Faithful, and that the Wicked can have
"
no jufl Title to polTefs any thing. Another
*'
time St. Cyril fell out with Orejles, Gover-
"
nour of y^lexandria, on whofe Authority he
*'
was perpetually encroaching : five
"f
hundred
"
Monks, in fupport of their Bifhop, one day
*'
furrounded the Governour, wounded him by
"
a Blow with a Stone, and had kill'd him, if
"
the Guards and People had not put a Stop
*'
to their Fury. This cofl one of the Monks,
"
who was taken, and put to the Rack, his
*'
Life
}
but St. Cyril llrait canoniz'd him. A
"
famous Heathen Philofophrefs, call'd Bypa-
"
tia^ was the Vit:im, which the Partizans of,
"
the Bifhop, immolated to the Manes of their
"
Martyr. She was cruelly tore to pieces, be-
"
caufe fhe was fiid to have irritated the Go-
"
vernour againft the Prelate." Wou'd you
know what were the Clergy of the
fifth,
and
following
Centuries ? An Author, who cannot
be fufpected of defigning any 111 to the Fa-
thers,
'
will inform us.
"
The Sefts, fays he,
"
(meaning thofe of the Nejlorians and Eiity-
"
cbians) which iprung up, partly thro' the La-
"
zincfs and Superltition
}
and partly thro' the
"
particular Grudges, Envy, and Malignity of
*'
the Clergy
3
gave the finifhing Stroke to the
"
Spirit of Perfecution on account of Religion.
"
'Tis
^
true, this fame Spirit of Perfecution had
"
already appear'd in the World ; but had not
"
as yet exercis'd its Tyranny, with ^11 thofe
"
Circumftances of Cruelty, with which it has
"
been attended fince that unhappy Century
;
"
luhen Divifions arofe about Opinions, in which
"
there may have been fomething of reality
j
"
but ivhat hcwever might have eafily been a-
"
greed and fettrd, had but the Spirit
of
Chri-
*'
fiianily preftded in Ecclefiafiical AJfembVies. Af-
"
ter that time nothing was to be feen in the
*'
^7?, but Profcriptions, Maflacres, Fuiy, and
"
Rage. See what a Bifhop of the fifth Cen-
*'
tury, who was perfccuted for Nejlorian'ifm^
"
fays thereupon : /
pafs by
'
in ftlence, fays he,
"
the Chains.^ the Dungeons, the Confi/cations, the
*'
Notes
of Infamy, thofe lamentable
MaJJ'acres, the
"
Heinoufnefs of
ivhich is fuch, that even they 'who
"
have had the Misfortune to be Eye-PFitneJj'es
"
thereof, do with pain believe 'em to be true : All
*'
thefe 'Tragedies too are a^ed by
B'lfljops.
"
Amongft
'whom down-right Impudence pafj'es for
"
Courage
;
they call their Cruelty Zeal, and
"
thc'ir Knavery is botiour''d with the Name
"
of filfdom. But it flill went on increa-
"
fing, and grew flill worfe and worfe. The
"
Emperour Juflinian wou'd not be thought
"
to have lefs Zeal, than the Prelates of the
"
fifth and fixT:h Centuries : He thought it ho
"
Murther, fays Procop'ius,
"
to condemn to Death,
"
fuch as made Profeffion of
a Religion different
"
from his own. All the World faw the dread-
"
ful Cruelties that were committed in thefe un-
"
happy Centuries. They maintain'd Sieges 'vx-
"
in their Monafteriesj they battled it in theur
"
Councils} They enter'd the Churches Sv/ord
"
in hand
;
"
They treated with the utmoJl
"
Cruelty, all whom they but fufpeded to fa-
*'
vour Opinions, ivhich too often prov'd to be
II
See Zulpic. p. 1 1 8-, i^c. Edit. Elzev.
9 Cap. 21, and Ed. Elzev. tap.
3.
<\
Seethe
^^^Ji.
Hieron. of Mr. LeClerc,
S>uaft. 8, SeB. 12.
*
He himfelf brags of it in his Apology againft /?//^
.-
Imperatorum quoque fcrifta,
fays he, ya^ ^/^ Alexandria
y.^gypto
erigenijias pelli ji/ient, me fuggerente, diSlata funt : iit Romans tirbis Pontifex mho eos odio detcjletiir, meum
confiliumfuit : tit
tottis orbis,
poft
tranjlationem tuam, in Origenis odia exarferit, quern antea ftmpliciter
leilitahat; meui cperatus
eft ftyius. Hieron
Oper. Tom. II, p.
201*, lib. i, adv.
Ruffin. Edit.Baftl.
||||
The Report here given of it, is in the Terms of the Extraft thereof, by M. Bernard, Bibl. Univ. Tom. XXI, Part
2, /. 19-.
f
Socrat.
Hift.
Lib.
7,
f. 14, 15.
'
Tiijfert. Hiftoric. i^c. printed it Rotterdam in
1707, p. 8,9. See, for the fifth Century, thePaflages of Ifidorus of Da~
metta, quoted in the
Epift.
Eiclef. znd Crit. of Mr. LeClerc, p. 167, is" fcq.
and p.
203", is" feq.
Edit, fecunda.
Sttjimm. Marcel. Lib. 22, cap. ^~, /> 233. And p. 559-,
Edit.Gritteri.
*
Eutherius, Tyanortim Epifccpus, inter opera Theoduriti, Tom. V, p. 688_, and
689"'
f.
292,
A-, C, Edit. Colon. 1686. 1 afud Du Pin, BibJ. des Aut. EccleJ. Tom. IV,
p.
*
Antcdot. p. 60, Edit. AlcmannJ.
*
^i^Eutychii Annates, /. ijj.
Et inter Opera Athavaf.i, Tom.
Ifc
67,
Coi.
2~.
Jii. Holland.
^^
fucb
of
the Science
of Moral
ITY.
%i
'<'
fuch
as no body
underftood; not even
thofe who
Juftin Mai'tyr,
in the fifrh + ni i ri
defended tkem with the
greatefl Zeal aid Ob- firll %ology,
%s/" , lyrp.'''P''';.f
j"'
Church
J
thefe are the Holy Fathers,
which
we muft take for Men
of
true Piety, and Know-
ledge.
But however, what
we are principally
con-
cern'd about, is the Soundncfs
of their
Judg-
ments, the Solidity of their Thoughts,
and the
Extenfivenels of their
Knowledge
: Give me
leave then to make a Parody
j and apply to
the Fathers fome Verfes of a Modern
*
Satyrift,
whom France has not long fmce lofl.
^"on vante eneax
rhonneur,
lafoi, la probitS,
^"on
prife leur Candcur
^ kur
ftnchiti;
^"ihaienteu
quelqnefoisune
humeur
d^bonnaire.
On le vetit,
fy
foufris,
^ fuis pret de me taire:
Mais que comme un rnodele on z-ante
leursEcrits,
^"on Ics
fajfe pafj'er pour de
fort bons
Efpits,
Comme aux Rois des Juteurs,
^u'on leur donne
VEmpire,
Ma bile alors
s'echauffe,
^
je brule d'ecrire. Sec.
Which may be Englijh'd
thus.
Extol- them,
ifyoupleafe,
for
Probity,
For Honour,
Candor,
Faith,
Sincerity
j
Let 'em
good-natur'd
too fometimes appear,
'Tis granted all, and I am filent here:
But that their Works, and they lliou'd make
pretence.
To be the very Models of good Senfe,
That they of Writers Ihou'd as Sovereio-ns"
reign,
My Choler rifes, and I can't
contain.
But muft let loofe my Rage in the Satyrick
Strain.
The
Examples,
which I have already pro-
duc'd, of the grofs
Errours, and wrong No-
tions of the Fathers;
what I have faid of Books,
where may be found an infinite
Number of mean
trifling
Thoughts,
quoted with
great Applaufe,
by the
over-fond
Admirers of thofe
antient Do-
ctors of the Church
; the great
Number of
1
aifages of the fame kind, which
^
divers Au-
thors have
occafionally
remark'd
and criticiz'd :
All this might very well fervc to excufe me the
Trouble of producing any more at prefent. I
fliall
neverthelefs here give the Reader a fmall
Sample,
by which he may be able readily to
judge
of the Turn of Spirit, and manner of
thmlcing,
which, in thofe Times,
grew moil
prevalent.
^f^omen, and corrupted
Boys,
6cc.
And
-Iw th^s
founded folely upon
the fixth
Chapter
of
G'-
nefs, Ver
4. mifunderflood.
The moll
antient
Pathers,
have alfo one after
another,
given
out
this Opinion,
for
certain
Truth
; as a Learned
Editor -
of this
Father
has obferv'd.
Ju/iin
hnds the Sign of the
Crofs in Sail-Yards; Mails
of Ships,
Ploughs,
Mattocks,
6?f.
^^
St. Irenaus,
in the
Judgment of Photius, has
corrupted,
by
foreign and weak
Arguments, thi
bmphcity,
and exa6l
Ferity
of
the
Doctrines
of
the
Church.
Can any thing,
-^
for example^
4
be more infipid,
than the Reafons, he makes
ufe of to prove
that there are four Gofpelsj
VIZ.
becaule there are four principal Regions
of the
World,
Eaft,
Well, North, and
Soiith
;
or becaufe the Edifice of the Church
IS founded on the Gofpel, and there mull be
four
Columns to fupport an Edifice ? theo'
phylaa
does not fucceed much better, when
he lays
j
that it mull be fo, becaufe the Gof-
pel teaches
us the four Cardinal Virtues; or
becaufe
thefe Gofpels
contain
Doarines, Pre-
cepts,
Promifes,
and Threats. And don't the
five
Books of
Mofes contain the fame Things?
St.
Maximus and "Theophanes
feem to have fuc-
ceeded fliU worfe,
when they faid, that there
are but four
Gofpels,
becaufe there are but
four
Elements.
It was jullly obferv'd
by
Mr.
Fabricius,
that had there been fivej
threcj or an hundred
Gofpels, they cou'd not
have
wanted as good Reafons to prove, why
they were
neither more or le(s. Such wretch-
ed trifling
Stuff as this, is a Difgrace to hu-
mane
Realbn
: It might
perhaps pafs in Con-
verfation,
where one does not always ma-
turely
weigh and refleft upon every thing
that is faid
;
but when one finds it ferioufly
wrote; in Works too compos'd for the pub-
lick
View, and to be left to Pollerity
; the
leafl one can do, in my Opinion, by way of
refentment,
to Authors, who have oblig'd us
to read fuch Things
j
is freely to difipprovc
and cenfure 'em.
"
St. Cyprian
"
quotes at every turn, when
he is upon the Matter of Ecclefiaffical Dif-
cipline
;
the PalTages out of the Old as well
as New Tellament,
where-ever
there is the
Latin
word
Difciplina, without having an/
regard to Circumllances,
See the Reafoning
he makes ufe of againfl Lucian, (Presbyter
and Martyr of Carthagg,
who was willing
that thofe fhou'd be receiv'd into the Peace of
the Church,
who had funk under Peifecu-
*
Boileau, Sat.g, v. zi^.
4S-
''"''"'
'''
"""""''
^^^ ^'''''^""'''
' ^''- ^^^^-' I^-
"-^^ '^
//#
onStAuJlin. in the Ap^J:.
t ^.5;. D-, Edit. Colon.
L
k'
";=
^'^^-
C^^'> of Mr. Le Clerc, Tom. II,
p.
335., 335-
MensTmtt;^^!tR^
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'^ '> ^
^ui. des Lett of Mr. Bernard,
Detemb.
1703, p. 63
r
^'ft- 27. Bibl.
Univ. Tom.
XII, />.
264^ ijfe^
^^
u
tiou;
An
Hijlorical
and Critical Account
*'
tiott,
wlthotit
obliging them to paj
thro all
the
leveral
Degrees of
Penance:)
The * Lord
having /aid,
that they flmiU
baptize all Na-
Ghoft,
and that
their
paft
Sins are forgiven
em
'
in Baptifm
, he (
meaning
Lucian)
not knonv-
ini
either the
Commandments,
or the Laws, or-
dains
Peace and
Pardon of
Sins to be given m
the Name of
Paul.
But how eafy
is it to
fee the
infinite
Difference,
between
the
1
ar-
don
which
God
grants to Sms
committed
before
Baptifm
receiv'd
in his Name
j
and
"
the
remitting
of fome
Ecclefiaftical
Purniji-
ments by the
Authority
of a Martyr,
who
gives order
for fo
doing ?
'
i" ^^^
'
Treatife of the Vnit^ of
the Church,'' ^5,?"^'":
tains,
that the
Indivifibility
of the
Church
''
was tvpify'd by our
Saviour's
Gai-ment
with-
out Seam.
He fiys,
^^
that we
ought
<'
to be liberal to the Poor,
bccaufe as by Bap
"
tifm we obtain
Pardon
for all the
Sins,
that
*'
were
committed
before
Baptifm,
in
virtue
after.
Endeavouring
to
deftroy
the hi-
"
volous
Pretences,
which
are
fometimes al-
'
Icdg'd by way of excufe,
for not
giving ot
Alms ;
he mentions,
among
others,
the Ex-
*'
cufe of thofe, who fay
that the
Multitude
*'
of their Children
will not fuffer
them to be
'
fo liberal, as they
cou'd
wifh to be
: 1
o
becaufe we
have the
more Sms to purchde
Redemption
for, more
Confciences
to purify,
ber of
Perfons.
, ^ ...
St Jerom,
'"' "
Who
recommends
Celibacy,
as much as he poffibly
can
j
and who, ac-
cording
to the Cuftom
of Orators, wou'd
C^libes,
fays he, guod coelo digni fimt,
indittm
"
notnen ;
They have given 'em that Name, be-
caufe
they are worthy of
Heaven."
If you
wou'd
fee an Heap of Sophifms, and poor wretch-
ed
Arguments,
which prove nothing, or elfe
prove
that
Marriage is in itfelf criminal
;
you
need
only read the
Remainder of that Book a-
gainft Jovinian,
and that which he wrote againft
Helvidius ;
"
where he
ftrenuoufly oppoles fe-
cond
Maniages : In this laft Book, he prides
himfclf,
in having
play'd the Rhetorician and
Declaimcr :
Rhetoricati fumus, 5?
in tnorcm De-
damatorum
pauhdum
hifmus.
In
another Place,
^"^
he makes it his Boaft,
that he wrote with great Precipitation,
and
without giving himfelf the Trouble to beftow
much thought upon his Commentaries : and is
accordingly found frequently contradicting him-
felf. He has the Aflurance to own in plain
Terms,
"
tliat in his Polemick Works, he had
no other Aim, but to get the better of his Ad-
verfaries j
without the leaft Concern, whether
what he advanced were true, or falfe. He fup-
ports himfelf by the Examples of Origen, Me-
thodius, Eufebius,
JpoUinaris, and other Apo-
logifts for the Chrillian Religion
;
who, as he
fays, us'd the liime Method againft the Hea-
thens
i
making ufe of very doubtful and pre-
carious Reafons
j
and maintaining, not what
they thought, but what the Intereib of the Dif-
pute requir'd. Nay further, he pretends, that
in fo doing, he did but imitate
Jefus Chrifi,
and
"""
St. Paid, who
maintain'd, as he wou'd have
us believe, the Pro and Con, juft as it fuited their
Purpofe.
The great St. jiuftin
alone might afford us
Matter enough, to furnilh out a large Volume
of Trifles and Impertinencies : I fhall content
myfelf with producing only two Inftanccs. In
explaining that Paffige of Gencfis, Chap, iii,
Ver.
14,
where the Latin Verfion, which he J
us'd, reads with the Septuagint, Upon thy Breafl,
1
and upon thy Belly flmlt thou go, and
Duft
foalt
thou eat, all the Days
of
thy Life : By
""
the
Breafi,
fays he, is meant Pride j by the Belly,
the Lufls of
the FlefJi ;
and by that which fol-
lows, Dufi
flialt
thou eat, Curiofity, which ex-
tends only to Things temporal and terreftrial.
By Curiofity, he means Avarice : And thus it
is he draws his moral Refleftions from Scrip-
ture. His remark on the Title of the Pfalms
is very pleafant.
" The
Tranfcribers it feems,
*'
did not ufe to put before the firft
Pfalm^
*'
Pfalmus
primus, as they do now-a-days, be-
*'
caufe they did not probably think it at all
"
neceffary j
fince there cou'd be no Miftakc,
*'
it being at the Head of the Book, and fol-
*'
low'd by the fccond Pfalm : But this wou'd
"
not ferve St. Aujlin's Turn, he was for a
"
Reafon much more myfterious:"
-f
Js this
Pfalm,
fays he, introduces God
himfelf /peaking^
fo
for
this Reafon it has no Title,
for fear kfi
otherwife fomething elfe fhoiCd be preferred before
the Speech of
God; or
kfi
hefiiould be caWd the
firfi^
which is not calld the
firfi,
but one : And therefore
it neither cou'd nor ought to have aTitle; for fear lefi
if
it had had the Title
of
the
firfi,
it might have been
believ'd to have been the
befi,
by its numerical
Order only; and not by its Authority. Or elfcy
adds he, as has been already
faid, for fear, that
it might have been believ'd, that the
Pfalmifl
had
preferred fomething elfe before the Speech
of
God,
I
ff
ndl Unv Tom. XII, *. 283', ex libro dt UnUat. Ecckf. p. 109..
,
K IS
Univ. tZ. XII, /. 338-,
339-.
^^ Mro De Opere &
Ekemofyms,
p.
.97-, 205
.
>"
Repub.
des Lett. May 1702, p. 502.
-.1
See the 8th
Weronym. ^laft.
of Mr. Le Clerc.
,
,7 i, r
r
S':;":i;
kt4:;^;/ti"un^ar^^^ i: K.SK
,./... t./.,. de mi.
,. 368-, 369-. e. nm.,.
Gttr Tom II t
10C-,
106", Ed.Biifil. ,.
^^^
Nonne nobis loquitur cum fervatore, aliUr foris, aliter domi loquimur?
JJ"^-
P-
'"g
""
Lib. 2, De Geneft
contra Manich. c. i-j_,
if.
Sec Ui Qbfervat.
Hall. Tm.lY, Obfrvat.
J,
<">
Sentimem de quelques Thiol, de Holl.
p.
362".
t
Aupjtin. Opcr. Tim. VIII, Col, \0,
CT, Ed. Baf.
of
the Science
of
Morality*
had
he put a Title before this Pfalm
j
for if
it
had been calVd the
firft^
that might have been
underflood
to meariy preferable to the reji. And
therefore^
concludes he, to the end that ive may
niamfejily fee^
hoiv much this Pfalm is dijiingt!ifl}\i
above the refl^ it is the only one that has no Title.
its Propagators Men
of true
Piety and Learning.^
'ijuhat opinion
mufi ive have
of it ? As we are under
no Obligation to account for
theCondua:
olGod^
either for what he does, or what he does
not do
for
what he permits, or what he dircfts,
according
to the fecret Methods of his Providence
: fo,
*^
in-
*'
Reconcile, if you pleafe, the Conclufion with Head of faying; fiich or fiich a Thing is contrary
to
"
the Premiies.
As I am quite tired with copying fo much of
this tedious, and injudicious Stuff; fo there is
more than enough of it, to fet in their true
Light the Charafters of the Authors in quellion,
and to let the Reader fee ex ungue Lconem. I
have defignedly pitch'd upon Examples, which
the Defigns
of
God, or to his Attributes;
therefore
God could not have done or permitted it ; I think
(and I have all theReafon in the World to think
lb
)
that we fhou'd rather argue thus : God has
done or permitted
fuch or fuch a Thing
; therefore
there is nothing in it contrary to his
Defigns^or to his
Attributes
: altho' it may not always, in our weak
had been already remark'd and produc'd by others
>
and narrow Underftand'ings, be clearly
reconcik'
and are extant in Books molt common and eafy ble with the Views, and infinite Perfcftions of that
to be had. By this we may fee, with what an
ill Grace it is, that our zealous Defenders of the
Fathers^ require us to take it upon their Word,
that they wcvcMen
of
true Piety., and Knowledge;
againll fo many and fo notorious Proofs, which
demonftrate, even to Eye- fight, that their Vir-
tues were for the Generality, fir from being any
way confiderable
j
and at the fame time accom-
pany'd with very great Imperfeftions ; and fome
of 'em much to be llifpefted of Hypocrify : and
for their Knowledge, that it was commonly falfe
and confus'd ; tliat they had a much greater fhare
of Imagination, than of good Senfc ; that they
were dellitute of many Helps, which were necef-
fary to the augmenting and perfecting that Know-
ledge, they were Maiters of; and that they even
neglected
*
thofe Helps, which they actually
had, or might have piocur'd
;
and that confc-
quencly their
''''
Knowledge mull needs have been
very narrow and confin'd : in a word, that the
moll able amonglt them, are in nothing compa-
rable to the good Authors of ours, or the lall
Age; for either Solidity, Stile, Order, or Me-
thod. And now, after all that has been fiid of
their Writings, is it poflible that any one can fe-
rioufly look upon the Fathers, as Men of great
Knowledge and Judgment
.''
A Man of the great-
eft Knowledge and Judgment in the World, I
mult own, may be miltakcn, and may give into
fome filfe Notion
j
but then it mult be a Notion,
that has at leaft fome Plaufibility, and this too is
what will not often happen: but I flrall vent^trc
to affirm, that a Man of tolerable good Senfe will
never be guilty of thofe Extravagancies, which
we fee the Fathers, almoft all of 'em, have run
into- None but thofe, who ai-c capable of fay-
ing as filly Things themfelves,or who are ftrange-
ly blinded by a Spirit of Party; cou'd fo much
preach up the Authors of fuch arrant Trifles. But
to their great Mortification, we do not now live
in an Age, that will palfively fubmitto fuch Treat-
ment : The Publick is no longer to be impos'd
upon by fuch fort ofgraveAflirmations as theie,void
of all Proof; and at the fame time contradicted by
an infinite Number of decifive Reafons, fairly
expos'd to the publick Vievv^ of the World. 'Tis
(C
((
((
a molt ridiculous fond Conceit, to miagme. that.
without having fo much as attempted to difprove
Fafts, Fa6ts fo clear and certain ;is thofe which
have been alledg'd
;
it is enough to falve all, to
produce fuch a pitiful Reafon of Congruity as
this
-
^ -- "
-
Sovereign Being. But however, as he has not
forbidden us to enquire after, and with due Re-
verence to propofe, the Reafons he might have
had, not to interpofe in an extraordinary manner,
to prevent certain Things; fo, if we wou'd a lit-
tle exert the Faculties of our Souls upon the Sub-
ject-matter of the Fa6t in queftion ; we might
eafily difcover enough, both to fatisfy ourfelves,
and to ftop the Mouths of thofe, who wou'd have
God always to aft according to their Caprice. If
"
after theApoftles them.felves, we find nothing,
"
but what is very mean and confus'd in that firfl
"
Rife of Chrillianity ; it was probably, as Mr.'*''
Le Clerc has very well remark'd,
"
fo order'd, to
"
the end that it might not be faid in future Ages,
"
that there were in thofe days Men able enough
"
to form fuch a Religion as Chriftianity, and to
"
forge fuppofititious Books for its firft Authors
j
fince there is nothing to be feen after them,
that comes up to their genuine Writings : Not
only none of the Heads of the feveral Se6ts,
which fprung up at that time ; but none even
of thofe who profefs'd to follow the Apoftles,
as their fole Guides, have produc'd any thing,
"
that comes near that manner of writing, which
"
isfeeninthe Worksof thofeholyMcn. There is
"
too withal inthatmannerof writing of theirs, fo
much unaffcledPlainnefs,and native Sincerity,
if I mayfo fay; that we may from thence moft
clearly difcern, that what they tell us, is not
of their own Invention; but the real Diftates
of
Jefus Chrifl ;
and of that Spirit, which he
"
had conferr'd upon 'em." Certain it is, that,
confidering the Books of the New Teftament
with refpeft to the reafoning Part ; not one of the
Fathers, take 'em as they really were, wou'd ever
have been able to compofe Works, full of that
good Senfe, which fo vifibly reigns throughout
the Gofpels and Epiftles of the Apoftles. It may
alio be laid, that God, in permitting the Fathers
of the Church to be fo unaccurate in their Wri-
tings; and oftentimes fo irregular in their Con-
du6t; was willing to ftiew,that the Chriltian Re-
ligion, which was to continue to the end of the
World
;
both can and will maintain itfelf by its
own Efficacy
;
maugre all the Ignorance and
Wickedncfs of thofe, who ought to have been its
chief Supporters. And ftrou'd this be deem'd to
nnplyany thing! that is really contrary to the Wif-
dom of God, or injurious to the Chriftian Reli-
it may be prov'd, by the lame Principle,
cc
((
(C
(ws.)
If
the Chrifian Religion had not for that there ought not to have been, under Chri-
, ijfeq. And the BM. Choifie
* See Mr. LeClerc'iCrit. and Ecclef. Lett.
Epift. 4, p. 107, tf feq.
and Edit.
2, p.
Tom.
XI, p. \oz
, ^ feq.
p? The Erudition of even thofe, who pafs'd for the moft learned, was very common,
Mr.
B'er?!ard has very well obferv'd in his Reptib. des Lett. March 1
699, p. 259.
11 B'M. Choife, Tom. IV, p. 356 ,
357".
[E] [F]
and coft them little or no Pains ; as
itianity.
34
An Hiftoricd
and Critical Account
flianity. Ages of univerfiil Ignorance and Cor-
ruption, efpecially amongft the Clergy , and fuch
too, as in fa6t thofc Ages were, which preceded
the Reformation : and thus our zealous Defen-
ders of the Fathers will have every whit as good
a Foundation to maintain, contrary to the Faith
of all Hiftoryj that thofeAges were not fuch, as
they are generally belicv'd to have been. But en-
tirely to put to filence fuch, as are not afliam'd to
urge this wretched Argument} which, whatever
which we do not know; the others having made
is not to be doubted, but that there were, both
amongil the People, and Clergy too, Men of
more Senfe, Knowledge, Moderation, Juftice and
Piety
j
than thcfe, whoic Names and Writings
have been tranlmitted down to us with fo much
Pomp and Oitentation. Let the Reader judge,
to which of the two, the Name and Title o't Pro-
pagators
of
the Cbrijiian Religion^ does molt pro-
perly belong; whether to thcfe we do, or to thofe
Light 'tis view'd in, affords not the leafb Colour
of Reafon ; 1 fliall take occafion to add in a few
Words three or four Reflexions. The firft isj
that neither
Jefus
Chrijl^ nor his Apoifles have
any where faid, or in any wife given us to under-
ftand} that thofe, who next after them might be
look'd upon as the Propagators of the Chrijiian Re-
ligiofi^ were to be Men of true Piet)', and Know-
ledge. So very far from that were thev,as to pre-
pare us for the Expeftation of juil the contrar\'.
The Parable of the Tares fow'd by the"'Enemv
5
and that of the "Net that gather'd of every kind
;
do plainly enough fhew us, that in the Chriftian
Church, the Wicked were to be very much in-
termix'd with the Good; infomuch thatthefe lat-
ter were not to have the Afcendant, or make a
better Figure in it than the others. OurLord hath
foretold the Divifions, which the Ignorance, the
vain Subtilties, the Temerity, the Prefumption,
and Pafllons of thefe Propagators of his Religion
would produce in the Church. And St. Paul a!-
fures us,
"
that there
mtift
be SeSls., to the end that
thofe whofJiould be worthy
of
approbation^ might be
made manifeft-^
(that is to fay) that a Mind free
from Prejudice, and which judges not of things
by Appearances ; might be able to dillinguilTi
who were the Men, that did in good carnell de-
vote themfelves to Truth and Virtue. When the
Apoftles are telling us what was to happen in the
Church, they
""
exprefs themfelves in fuch a man-
ner, as gives us all the Reafon in the World to
believe, that the Clergy were not for the Genera-
lity to be Men of the grcateft Piety, and Under-
llanding: In the very Days of theApolliles, there
were Men of turbulent Spirits, and falfe Tea-
chers }
againft whofe Temerity and Seduftion
thofe holy Men were oblig'd to oppofe them-
felves. There was even at that time to be feen a
Diotrephcs,
""
a Man both vain and ambitious
5
who prefum'd to prate againfl St.John^\v'\x.h. ma-
licious Words
J
who treated as Hereticks, and
excommunicated, thofe whom the Apollle held
for Brethren.
The fecond Oblervation 1 have to make is;
that, in the firft Ages of Chriftianity, as well as
in thofe that foUow'd after ; the Men moft ap-
plauded, and who bore the greateit Charafter in
the Church, were not always thofe, who had the
greateit ftiare of good Senfe ; or were the molt cmi-
It was not for the
Me-
ncnt for Learning and Virtue.
molt part
''^
then, anv more than it is now.
it their Bufinefs both to prevent their making any
Figure while they liv'd; and to hinder their Me-
mory from being handed down with advantage
to P'oiterity. Amonglt thefe latter, fome out of
Fearfulnefs; others thro' Prudence, or the Impof-
libility which they faw there was of fucceedingj
declin'd the cntring into Contefts, with Men more
powerful than themfelves: and if any one prov'd
fo hardy as to make head againft thofe Doftors,
who had gain'd the Admiration of the Populace
j
he foon found there was no good to be got by it
:
Witnefs the Affair o{ Figilantius with Sx..Jerom.
I obfcrve in the third place; that we have no
other occafion, with rclpeft to the Interelts of
the Chriltian Religion, for the Writings of Ec-
clcfiaitical Antiquity; than as theyfurnilh us with
hiltorical Evidence, of what haspafs'd ; and been
'
each Writer. This is in
cda'd, by an Author whom
believ'd in the time of
exprefs Terms acknow
I have already quoted : IThen
""
the Protcftants,
fays he, confult the Fathers and the Councils^ they
make no other
nfe of
that Study, but to leant the
Hijlory
of
tloeir Doiirines, and to fearch out the
fir
fl
Beginnings
of
Erroiir
; fo far are they from looking
there
for
the Foundations
of
their Faith. Now af-
ter this to come and cry out, that all is loit, if
we have not a profound Veneration for the Fa-
thers; and but venture freely and impartially to
fpeak our Minds of them ; is plainly ridiculous.
The very Divifions, which their Ignorance, Paf-
fions, and vain Subtilties have produc'd in the
Church
;
contribute not a little to affure us, that
no conildcrable Corruption has crept into the
Text of the Holy Scriptures; fmce it is plain,
had it been fo, that the oppofite Party wou'd not
have fiil'd to have openly reproach'd the other
therewith.
My fourth and laft Obfcrvation is; that, not-
withitanding the great Inaccuracy of the Fathers,
which has often caus'd 'em to commit confidera-
ble Errours; notwithltanding that ftrange Fancy
they had for vain Subtilties, which made 'em fie-
gle^ Things of much greater Importance; not-
withftanding all this, I fiy, the Fundamental Do-
ctrines of Religion and Morality have flill been
preferv'd amonglt Chrillians; even in
^^^
the moft
Ages of Darknels and Vice. And tho'
and mix'd
difmal
ieveral Falfities have been added to,
with thefe Fundamentals
;
tho' they have not
been fully explain'd, and drawn out into all their
juftConfequcnces; this is no way the fault of the
rir, which ferv'd to raife Men to the highefi Dig- Gofpel. But Providence has at length highly ju
" ' '"'
"
. . -
.-
ftify'd itfclf, if I may fo fiy, in the Eyes of all nities of the Church. Thus, notwithftanding
that Corruption both of Judgment and Manners,
which reign'd, more or lefs, thro' every Age ; it
"
Matth. xiii, 24,
5"
feq.
See the Epi^. Crit. (jf EccL
And his Treatife of Incredulity, p. 189,
3"
feq.
Et p.
199"
See Mauh.xm,
47.
" i Cor. xi,
" ""
I Tim. iv, I,
thofe,
laid to
of Mr.
Edit.
19.
who wou'd otherwife have prepofleroufly
Charge, the Ncglefts and erroneous
Le Clerc, p. 121, 122. Et p.
\^6~, iff feq. Edit. 2.
See 2
Theff. ii,
3,
& feq.
i Tim. iv, i, {ff feq. 2 Pet. iii/
3, i^ feq. Jude 18, l^
feq.
"
3
Job.
9,
10.
yy SeewhatGr^^oryiVijzwsz^w, fays of the Times he liv'd ill, in his Life publifh'd hy'Mi.LeChrc, Bill. Univ. Tom. xviii,
f.
56", 89', 92-, 1
1
9-. "
Dif. Hifloriqun, &c. p,2lj.
"
See Mr. Le Clerc's Treatife, De eligenda inter Chrifiiams diffentientes fententia, ( which is at the end of the laft Edition
oiCretius, Defer. Rel.Chrif) Se^.7-.
Judg-
of
the Science
of
Morality.
35
Judgments
of Men. God has rais'd up a Set of in Ignorance and
Corruption, augmenting ftill
Men,
who
have introduc'd a better manner of more and more, did at length nle to fuch a
ftudying
and reafoning. We improve daily in Pitch, as that there was hardly to be feen, efpe-
rightly
expounding the Holy Scriptures
>
and in cially among the Clergy, the leafl
Spark of good
folidly
handling Morality. A true Rclilh for found Senfe or Vntue left. Not to mention
that vaft
Knowledge and wholefom Literature begins to Number of ridiculous Superftitions, that prodi-
appcar; and gives us reafon to hope, that they gious and amazing Idolatry, which had entirely
will both in due time make a conliderable Pro- defac'd Chriflianity
5
there were befides a thou-
notwithilanding the Efforts of thofc, who fimd dctellable Maxims eftablifh'd, worthy only grcfs
are labouring to bring us back to the Primitive
Food of Husks and Acorns. And an Age may
perhaps come, wherein the Fathers of the Church,
together with their fond Admirers > fhall be ge-
nerally had in no greater Efteem, than they can
fairly merit.
Bat it is time to put an end to this long Di-
grefiion. I thought it neceflliry once for all, ut-
terly to defli :>y the only Subterfuge which thefe
boailed Defenders of tlie Fathers had left. We
of the grofs Darknefs of thofe unhappy Centu-
ries. The Bifhop "of Rome made himfelf to be re-
garded, as one invefted with Power to depofe all
inch Kings, as he fhou'd iudge to be Hereticks
j
and to abfolve their SubjelSts from their Oaths of
Allegiance. Every one knows to what excefs /-
didgcncies^^ VJtrc carry'd. A.n Italian call'd
"
John
Giglis, or Des Lis,
(
De Liliis
),
who was made
Bifliop of Worcejicr by the Authority of the Pope
>
receiv'd from him at the fame time the Power to
fliall now purfue the Thred of our Hiftory of pardon all forts of Crimes
j
and to permit any one
Morality. After what has been iliid of the little
-i^.--
care taken by the Doftors of the Church of the
lix firll Centimes, to cultivate itj it wou'd be
fiiperfliious to run over the following Ages ; where-
to retain the Goods of another, howfoever ac-
quir'd
;
provided part thereof was given to the
Commiflaries of the Pope, or to their Subfti-
tutes.
'S
See the 4th Lateran Council held ^tRome in 121;, Canon the third. You may find the Canon tranflated, Tom. IX, of
the Bibl. Uni-. p. 39
. See alfo Tom. XI, p. 387". And the Treatife by Mr. Dii Pin, De la Puijfance Ecclef. is" Tmporelle,
printed in 1707. See Camn-zd'i fiimma Concil. p. 603-, printed
1659.
'*
See Seckendorff, Comm.
Hift. Ig Apolog. de Lutheranifimo, iSc. Lib. i.
'7
See Whartoii's Atiglia Sacra, Supplem. ad
Hift. Ecclef. Vigorn.
SECT. XL
THE
Light of the Reformation^ 'tis true, fuch as believe not in
Jcfus Chrifl, cannot be
did in a great Meafure rellore, amongft look'd upon as lawful PoiTeflbrs of the Goods of
Proteftants^
Purity both of Doctrine and this World? If we confider how few good Books
Praftice. But yet it cannot be truly faid, that of Morahty we have, efpecially in our Language
j
even the Reformers themfclves, and their Sue- in companfon of the infinite Number of con-
ceflbrs, have always exaftly purfu'^thp true Spi- troverfial Writings, with which the Libraries and
rit of Chriftianity , and of the Reformation. Was Bookfellers-Shops do every where abound ; we
may from thence fairly conclude, that Morality
is a Study very little minded at prefent. Neither
do the publick
"
Sermons feem to be very inftru-
ftive on this Head : And that no one may doubt
of it, we fliall produce authentick Teftuuonies,
fully fufficicnt to convince us thereof. Mr. La
Placette^ Paifor of the French Church at Copen-
hagen^ in
^
his Treatife
of
Rejiitution
;
introduces
fome of thofe, who had mifcarry'd for having
ncgle6ted this important Duty, complaining of
their Teachers at the Day of Judgment, in the
Terms following :
"
We could have very well
"
difpcns'd with thofe many vain Speculations
j
"
thofe many frivolous Difquiiitions
5
thofe many
"
metaphyfical Enquiries
;
thofe many ufclefs
"
Controverfies about Things, in which we had
"
no real concern : and which have been, alas
!
"
the principal Matter of your Sermons. We
"
fee none here damn'd, for want of knowing
"
thofe Things
^
hundreds of which you have
"
taught us, and with that care and concern too,
"
which might have been very well fpar'd. Bi t
not that horrible Tenent of Intoleration, or Pcr-
fecution on account of Religion, maintain'd by
twoTreatifcs, written for that very purpofe
;
the
one by Calvin ,
'
and the other by
''
Beza ? and
did not Calvin aftually put thefe his Principles in
pni(5bicc, in the Cafe of Scrvetus ? arc there not
rt this dayNmnbcrs, who, after having for many
Years, and in divers Manners, themfclves felt
the dire EfFcfts of Intoleration
;
cannot yet be
brought to inake this explicit Declaration
j
that
all Pcrfccution, or Vexation whatever, whether
great or fmall ; direct or indirect ; on account of
Religion, is in truth no better than downright
Tyranny? Have we not feen fome of 'em, bold
enough to afcribe the Pi-ogrefs, Chriftianity has
made in the World, to this way of converting
Men ; by exprefly maintaining, that
'^
Paganifra
wond have fiibfjied to this day
;
and that three
Fourths of Europe ivoti'd have been pill Pagans
}
had not Con'ifAntme and his
Siicceffors
employed
their
Authority to abolifJ} it. Are not
'^
others for revi-
ving that pernicious Maxim of St. Aailin; that
^
Fide'is expojltio errortim Mich. Serveti, ^ brevis eorumdem refiitatio: ubi docetur, jure gladii eoercendos efle Hsreticos.
^
De Hiereticis a magiltrntu puniendis. Note, That the Friends of "Juftus Lipjius, to anfvver fome Protellants, who cry'd
out againft the Opinion of punifhing Hereticks which he maintains in his Politich, :i.ndim hls'Vri.&.De una Religiojie; re-
turn'd upon 'em the fime Charge, by alledging the Affair o( Serz'etus ; and citing a Paffage out of Beza, where he fiys in ex-
prefs Terms, That it is more ahfurd, to fay
that one ought not to pmip Hereticks, than it woii'd be to hold, that Men guilty
of
Sacrilege, and Parricides ought to go unpuniffj'd : Hereticks, adds he, being infinitely tvorfe Villains than all thofe. See the Life
of
Lipfius, by Aubert leMire, Tom. I, of the Works of that great Critick, p. i6. Edit. Fefal. Et Edit. Lugd. p. 10, Cd. 2-.
' Droits de deuxfou-L<eraini,isfc. p. 2S6. See Bayle's Dii^. Tt///;. I, />.
424, 425.
Edit.z. Lett. [H].
' See P. Molin. Anatom. Arminianifmi, cap.
32, Dift.
18. Maco^-. Diftinfl.
cap.
3,
Se^. 18. Theol.
^ctft. Loc.
^i,
^eeft. 19. Voetius, ISc. f
'.
' N.B. What our Author here fays, is by him apply'd to Sermons and Books in Frc/fi:/?'; how f.r 'tis applicable or not
applicable to thofe in other Modern Languages, he leaves to his Reader to judge ; but ftcms to except x}cx.Englifh and Dutch.
'
^"1- 5'> 52. See alfo ;*. 147.
[E] [F] 2.
here
36
An
Hijlorical
and Critical Account
(C
4<
(C
(C
((
((
((
C(
(C
<c
(C
(C
(C
(C
here
we find ourfelves for ever loft and un-
done,
for the negleft of a Duty, which
we
cou'd never hear the leaft Word from
you a-
bout. You have fuffer'd us to approach the
Holy Table, without forewarning us, that we
came thither unworthily, and there
receiv'd
our own
Damnation j
if we did not
firft en-
tirely empty both our Hands and
Coffers of
all our unjuft Gains. You have indeed
preach'd
to us' the Mercy of God : You have alfo
fs'd us to implore it with the moft affeftio-
nate
Devotion, and the moft lively Hope; but
without
of obtaini
nately continu
quently in Impenitency ; which all moft cer-
tainly do, who reftorenot that which they have
unjuftlyacquir'd.
In a word, 'tis you who have
letus remain ignorant of thefe capital Truths,
whilft we might have profited by them
;
'tis
you who are the Caufe, that we learn'd'em not
up
P
fill out with]; one another about unprofitable
Queftions-, fo that while thePaftor is taken up
in his Clolet or in the Pulpit in confuting an
Adverfary, that perhaps he has never feen ; or
in combating an Errour utterly unknown to his
Flock
;
his Sheep go aftray, his Auditors be-
come confirm'd,as to their Morals, in the moft
capital Errours> and deeply engag'd in vicious
Habits and evil Courfes." Here you have the
Depofitions of unexceptionable Witnefles. And
I wifti It cou'd be faid, to the Honour of thofe,
againil whom thefe Imputations have been but
((
'em will for fome time continue ftill prepoflefs'J
with this Notion, fo contrary to the Engage-
ments of their Minifterial Funftionj that a fla-
ming Zeal for ipeculative Doftrines, which coft
'em not much Pains to acquire ; and in maintain-
ing of which they find their Account; will ex-
tilfnow, when they will only feive to render us
cufe 'em the Labour of entring deep into the fe-
inexcufable ; and convince us that we now moft rious Study of Morality
;
which will require much
iuftly are, and for ever ought to be moft mi-
profound 'JSIeditationj^and Knowledge, beyond
ro,..,UU " A/Ti- nf?rrrj^J^. Miniftpr of N'euf- the rate of Common-Place-Book Learning. It
would be a good Point gain'd, if they would but
let them alone, who are to the utmoft of their
Power ftriving to do that, which they themfelves
But their PredeceiTors have were oblig'd to do
"
ferable." Mr. Ofiei"vald,
Minifter of Neuf-
chatd in SiviS'erland,
makes the like Declaration:
take it as r^orted, by a third
^ Minifter, which
is Mr. Beimrd, the learned and judicious Conti-
nuator of the Novelles de
^
la Rcpuhlique des Lettres.
"
The Ignorance, fays he, of the Duties of Chri- fet 'em an Example
;
and they will by no means
"
ftianity, is both vciy general, and very great,
degenerate. Who was it, I pray, that introduc'd
"
There are fome of them which vaft Numbers
in the laft Age, the methodical Study of the Law
"
have never thought on. The Author here in-
of Nature; that firft attempted to give the World
"
ftances in the Duty of i?f/?////07' ; and tells us, a Syftem of this fo vaft, and neceffary a Science?
"
that Mr. La Placette having fome time ago
Was it any of theEcclefiafticks, or ProfefTors of
publifti'd a Treatife on that Subjed, the Book Divinity ? No : 'twas the illuftrious Grotius
5
was look'd upon as veiy fingular, and for its whofc Memory wou'd on this very Account, be
Subjeft nev/ and curious >
and that fome there
for ever blefs'd amongft all finccre Lovers of Truth
were, who treated thisDocirine of Reflitution,
and Virtue
;
tho' he had not otherwife gain'd aa
as a Doftrine
entirely novel, and withal too rigid,
immorta] Reputation, by the many Pieces he has
(C
((
(C
There are fome too, who pretend, that
Points of Morality ought not to be urg'd too
far; that fome Indulgcncics ought to be made
wrote of another Nature ; all excellent in their
kind. Yet no fooner did that ?dmirable Trea-
tife, of the Right
of
War and Peace^ appear in
"
to humane Nature; and at the fame time ri- the World; but the Ecclefiafticks, inftead of re-
"
gidly infiif upon Points of Doftrine ; and on turning thanks to the Author for it ; eveiy where
"
fuch too oftentimes, as are of very httlelmpor- declar'd againft him : And his Book was not
Some alfo have proceeded fo far
<(.
tance. aome aiio nave piun-xucu lu lai, as to
f\y, that it is even dangerous to infift fo much
upon Morality ; and that it is a Mark of Hcrcfy
fo to do. Divines have likewife had the Affli-
"
ranee to publilli Books, wherein they fecm to
*'
have made it their Bufinefs, to decry good
"
Works. Is it to be wonder'd at then, if the
"
People, who are committed to the Care of fuch
"
Guides,
do not give themfelves much Trouble
"
about the Praftice of them? The Doftors
"
appointed to inftruct the People in Religion,
8 Mr. Bernard, Pallor of the Walloon Church at LeyJen, and Profe/Tor of Philofophy and Mathematicks in the Univerfity
>
Iiovember\(>q(),
in the Extraft of the Treatife Des fources de U Corruption, i^c. p. 582, 583, 585.
i
See the Refleftions Mr. 5^r;;/7r^ makes, 'mhi% Repub. des Lettres, April i-jo6. Art i. And which drew upon him an
infipid
Libel by a petty French Minifter.
'
Ann. 1627. See Boeder's Preface to Grotius.
only put into the Expurgatory Index of the
^
Roman CatkcUck Inquifitors, ( which is not fb
mucli to be wonder'd at
;
) but many, even Pro-
teftant Divines, labour'd to cry it down. And
thus it far'd too with Mr. Piifendorf's Book of.
The law
of Nature and Nations. The Jefuites
of Vienna caus'd it to be prohibited
'
; and many
Proteftant Divine., both of- Siveden and Germany^
did their beif, to make this excellent Work ftiare
every where elfe the fame Fate.
1
See an Account of all thefe Difturbances in the Eris Scandica, printed at Francfort on the Main 1 686.
SECT. XII.
MORALITY,
being thus flighted, and Men of Letters ; who gave it a much better Re-
almofl banifh'd out of the World by ception. Let us now Ice in what manner thefe
the publick Minifters of Religion
j
took latter have treated it ;
and what has been the Pro-
Sanftuaiy amongft the Laicks,
or undignify'd grcfs it hath made in their Hands. It may very
2
reaibnably
of
the Science
of MoRALixr.
qt
reafonably
be
Tuppos'd, that, notwithflanding the timents of thefe ancient
Eaftern
Nations, We have
Simplicity
and Ignorance of the firll Ages of the from the Greeks themfelvesj
who have fometimes
World, as to what concc-rii'd Arts and Sci- mix'd their own Opinions with
tho.L t i-.ey re-
enccs
purely fpeculative
j
thofe Fathers of Fami- ported; and give us at beft but a fiendc;
Account
lies,
who were Men of ;:;ood Senie and Pro- of what the Sages of the Eaft taught,
on the Sub-
bity j
did not fiil to
^
teach their Children be- jeft of Morality. This more particularly
appeal's
times,
together with the Principles of Religion, by the Works of two Learned
^
EngUJlmen;
wh->
thofe Maxims too, that were the moll important have collefted with great Cart, all that is to be
inMoraUtyi as far as they had been made known found thereupon, in the Writings of the Arti-
to them, either by their own proper Meditation
j
ents. The Syflem, we have piven us ot the
or by
''
Tradition, deriv'd to 'cm from the firft Doftrine of the Chaldeans
;
is norhng
but a heap
Parents of Mankind. Thefe Inllruclions, how- of Notions in Phyficks, or Aftrology, Metaphy-
ever imperfeft, and immethodical they may pof- ficks and Pneumatology ; mix'd up with abun-
fibly have been
j
might well enough fuffice for dance of fuperftitious, myftical Allufions
5
and
thofe Times
;
eipecially before Corruption had ridiculous Fancies. I have here fet down All I
come to that Height, at which it afterwards ar- have been able to remark, which can any way
riv'd. But when Depravity of Manners had de- be referr'd to the Science of Morality
>
which is
fac'd the true Ideas of Religion and MoraUty
j
as follows : Ton
^
ought to make hajie, ( thefe are
and the Fathers were become as negligent in in- Maxims, taken from a CoUefticn entituled, fhe
ftmfting their Families, as their Children prov'd Oracles
of //:7e Chaldeans
5
and that they were adtu-
ftubborn and unreachable ;
then had the clearefl: ally couch'd in the Style of Oracles, will in-
and raoft common Principles of Virtue been in a ftantly appear, by the Sample I am about to
manner, entirely extinguifh'd in the World
j
had give,) Ton ought to make
hafle to
^
approach the
there not been a Set of Men, who apply'd them- Light and Rays
'
of
the Father^
from ivhence your
felves, in a very particular manner, to the Im- Soul was fent you. Lift up entirely all your
provement of their natural Reafon, by the Study Eyes on high, and do not abafe yourfelf towards this
of the Sciences: and it was out of their Schools gloomy World, under which there liesj^
-^hfet
^-
that
"
the moft celebrated Legillatours have pro- ver to be trujied, and an
^
Hell, furrounded on all
ceededj to whom Communities have been be-
fides with Mijis and Clouds, ^c. Seek^ Para-
holden for all the Order and Decency they have
dife. 'Seek the Channel
of
your Soul, andfrom
ever had amongfl: them
;
and for all the Tranquil- whence, and from what
"
Rank, you are become a,
lity they ever enjoy'd :
''
Men fnore worthy
of
Ad- Slave to the Body, that you may be able to return to
miration, and immortal Praife, than the greatefi that Rank, from whence you are defcendcd, by join-
Conquerours. ing PraSlice to Hoh' Difcourfe. Do not aggra^
As the Eafern
Countnts were the firft peo- vateyourDeftiny.
Preferve your
frail Body
for
pledi fo 'tis from thence that the moft general the Pra6lice
of
Piety.
Nourifh yourfelf with
Notions of Morality, and the other Sciences fpread the Hope
of
that Fire,
which is in the Country
of
themfelves thro' the World. The Greeks, with Angels. Do not defile your Soul, do not debafe
all their Vanity, were forc'd to own themfelves
//, do not yourfelf make it depart
from you,
lefl
in
*
Debtors for thefe Notices to thofe, they call'd departing from you, it
find
nothing : 'The Souls
of
Barbarians >
chiei^y to the Chaldeans, Egyptians, thofe who are feparated from the Body
^
by Force.,
and Perfians.
But all that we know of the Sen- are the
mofi
pure. O Man, who art a Creature
See the
Hift.
du Droit Nature!, by Mr. Buddeus, Sell. z.
>
See Bihi. Univ. Tom. Ill, />.
322".
To T"<
e/AoiTOij(t Vpjjii 'iviQt (paeiv inn Ba^Cd^uv Ap^ou. Diog. Laert. Lii. i, Seil. i~. See thereupon the Commenta-
tors,
Edit.Amjielad. 1692.
f
John
Mnrjham, in his Canon Chronicus, .Mgyptiaciis, l^c. printed at London 1672, and at Leipfick 1676. And Thomas
Stanly, in his Englijh Hi/I.
of Philofopky, (which, as I am inform'd, has been lately tranflated and publifh'd at Leipfick 1711,')
Far/^ 14,
ijj 16, 17,
18, 19. Thefe fix bft Parts have long fmce been tranflated by Mr. Z,f C/^rr ; which Tranflation was a
4th time reprinted in the 2d Tome of his Philofophy in
17
10.
E See Le C/erc's Philofophy, Ttm. II, p. 338-,
&c. Ver. 215, 216, 238, y feq.
Ver.
247,
l^
feq.
Ver.
254, 259, 268,
274,
i^ feq.
Ver. 280, If feq. Xoii <n (Tttiv^hv Tg#\ tz (pi@- >y
vmrgjt d..ya.i,^'Ev?nv i7niJ.(p^ au
\'jy^i
Ver.
215, 216. Edit.
Cleric. "0\x\j.frx. J^' ei^Sw Tniv-nt. in-jri-ntt^v t'a. Mi'175 jg^Tia vwnn hi Toy uiKAvavyi* Kotr/MV lj f>i,^U diiv AOTfcc tVo-
rpcTai TE ^^''AcA)} 'A(/9/Kie;)K, Ver.
238, & feq. Zi')TO(7Bi TTUg^HT^v. Ai{e m
i'j')ff(
o^TVV, oSt , VPi -ra^H oafAan
Tkbiuaaf, i-Ti TU^ii' d}' iti Sppujif ' A.Sn
*'
ariWw , Ufa Koyeoi^jf/ iveS:n.(, Ver.
247, & feq. Mri av a,i/^xvi tiiv iiua.pfjLiimi'^
Ver. 254. 'E^^v 4t' i:jnCin; piu^i )C) jaaa, aawof^i, Ver. 259. "Eawt? TflfiTs. a\ -rrugjio^f dyyi^tKO' ivl
y^ofUf
Ver. 268.
nait Ver.
274,
& feq. 'O. TcA/tAHyTarm fv'nt^f av^^uTn 'i'/jMixa. ! Mo -m mhueit [j.tT^a jain; o'thj nf.' tpf'kva, /JaMK.
'Ow jS a'^D&iiiK ifuTov iA y^^ovi. Mi.Ti luircH /jat^ji >)/i 1 y.^vivai ci/ta5f'oicTti,''AiSia Cvhn
(pifi-mh i'X. iivixg, i^it.
Mtii'a/ci' jLtsf cTpojaw.Mii} )t,aVt)e;o;' TrgfTofsi/p.ct, Mi'iPiK po/^o!' ia.nv, ah
Tf4p^' '^iT'?
dvAyy-Vi. "A/Sei" op^i3oc mfni
TtKaTui K-Jof A>.'^f- 'Oj SnjTiuv, (TTr^eiyyvai' t' o^iuutt' to. S''' d^fua-TO. Tiaf-ra^ ^BiXTWctKn; dmrnt riic/>^7a. ^-i)}*
ml joH-m, M'W.iaj' '{uj^fiiK is^i'i' Tizi.^.f'H^v dyiiyni', 'Ei/S' a'f'THi <^J(aT5 ly iuvoui^ <n/vd^VTai, ver. 2So,ijf
feq.
''
That is to fay, to do all you can, to return to the Place from whence your Soul is dcfcended down here below; for they
believ'd the Pre-exiftence of Souls.
'
They meant by that, the Spaces that i^re above the Moonj which they conceiv'd to be all /hining with bright Light. This
Light was, in their Opinion, an Emanation from the Father, or Sovereign Divinity. See hereupon S/flw/;', and the Notes
of Mr. LeC/erc, on the Chaldean Oracles.
^
'A/h;. They, as well as the Greeks, believ'd, that the Place to which the Souls of the Wicked went, was underneath
the Earth.
'
That is to fay, the Place of Blifs, or of that Light above the World, [iai vmfwffuov)
which was the Abode, and Re-
fidence of pure Spirits. See Mr. Le Clerc's Note on that Verfe.
"'
Thro' which it pafs'd, to come dov.-n here below.
" They
conceiv'd, that there were feveral Ranks or Orders of Beings, and feveral Clafles of pure Spirits.
" That is to jay, of returning into the luminous Space, alre.idy mention'd,
P
That is to fay, by the
^
left of an exterior Force. They thought, as did the Difciples of PlatCy that they ought not to
depart out of this Life without the Permiffion of Gad, See Mr. Le Clerc, on
this \'eife.
38
An
Hijiorical and Critical Account
of
a moft
darhig Nature^ take mt into thy
Afmd
the
'vaft
Dimenfions <if
the Earth; for
the
Plant
of
'Truth is not upon the Earth. Do not mea-
fure
the Sun by the help
of
colle^ed Rules : He moves
ly virtue
of
an eternal Decree^ and not
for
thy fake.
'Trouble not thyfelf
about the Courfe
of
the Moon, and
the Motions
of
the Stars, nor about the Noife of
the
Moon: She holds her Courfe
by an EffeSl of
Necef-
fity.
The expanded IVing
of
Birds that
fly
in
the Air, never tells Truth. I do mt trouble myfelf
at all about Sacrifices,
or Entrails , they are all
Mockeries, and the vain Supports
of
Fraud andfilthy
Lucre. Fly thefe
Things, you ivho are to open the
/acred Paradife of
Piety, where^ Virtue, Wifdom,
and Equity divell in conjunSlion. The two kft Sen-
tences do plainly enough condemn judicial Aftro-
logy,
and ''Sacrifices too, if not ablblutely, at leaft
the
PreHiges, which were drawn from the Entrails
of the Viftim ;
as well as thofe from the Flight of
Birds: and vet thefe Things were highly in vogue
amongft the Eaftern Nations ; and chiefly amongft
the Babylonians and Jffyrians.
In the other Ora-
cles, which would have been unintelligible to an
ordinary Reader, without the fhort marginal
Notes-,
which I have beenoblig'd to add as a Key
to fome Places ; they condemn Self-Murder ;
and
recommend continual Meditation on the Rewards
and Punilhrnents of another Life. It remains to
be coniider'd, wherein they made thofe Duties to
confift, which were to be practis'd in order to pro-
pitiate the fovereign Deity
;
and toaffureto them-
ielves a State of Blils after this Life ended. In
what has been hitherto collefted of the Doftrine
ofthe Chaldeans, there is no mention ofany thing be-
fidcs an exat Obfervation ofcertainRites and Cere-
monies, whereof Sacrifice is the moft confiderable
j
by means whereof they fancied themfelves capable,
of maintaining Correfpondence vvith the Celeftial
Beings
j
of raifing the Soul above the Power of
the Paflions
\
and even healing the Difeafes of the
Bodyj as well as thofe of the Mind. Thefe Ce-
remonies they call'd the
"
TVorks
of
Piety. TJjey,
'^jjho perform thefe as they ought,
fay
they,
*
ceafe to
be troubled ivith any Evil 'whatever
\
they acquire
thereby all forts of
Virtues , they become ^ood and
virtuous Men j
they are
fet free from their Paffions,
and unruly Inclinations , they are purify^d from all
Pmpiety and Prophanenefs. On the contrary, thofe who
negle^, or do not rightly perform them ; are
delivered
up as a Prey to their Paffions, dep-riv'd
of
all Com-
merce ivith the purefpiritual Beings, and become like
to thofe evil Genii, ivith ivhom they converfe ; and
ivho
puJJj 'em on to the PraBice
of
all manner
of
Vice.
q Mr. Lc Clerc believes, we ought to read with Pfellus, errheiyyjuv mt^jie.i So that thefe Words Ihou'd not condemn
Sacrifices, but only Divinations by the Entrails of Viftims.
'
"?} ivnCna.':- See Stanley, Hiji. Phil. Oriental, tranflated by Mr. Le Clerc, Lib. i, SeSi. 2,
Cap.
28".
'
Iambiich',de Myfter,
Sea. 3,
Cap. 31",
p.
loz, Un.
25,
6? d. Edit. Oxon.
SECT. XIII.
No
R are we much better
inform'd as to Breach
of
Trujl. Nor have I ever committed any
the Morality of the Egyptians y not tho' other Crime that is inexpiable. Thofe Remains we
wefhouldeven admit for genuine, thofe have prefen''d to us by antient Writers, of the''
vifibly fpurious Writings, which pafs under the Laws of the Egyptians ;
the Eftablifhment where-
Nam'e of their
"
Hermes, or Mercurius Trifmegiftus.
of is afcrib'd to their famous Hermes, or Mcrcurius
'Tis well known, that the Learned of that Coun- Trifmegiflus,
Counfellor of State to Ofiris, one of
try were S-ery much addicted to Enigma's, Sym-
their firfl: Kings-, do likewife give us reafon to
bols, and Hieroglyphicks
i
which render'd their conclude, that the Sages of Egypt apply'd thcm-
Doftrine
obfcure'and impenetrable to all, who felvcs as well to Morality and Politkks
;
as to the
were
without a particular Key to it. So that it
was almoit
impoiTiblejforiteverto be tranfmitted
to us; efpecially if we confider, with what care
they conceal'd their Myileries from all, who had
not be en initiated therein. However there is a cer
Study of the fpeculative Sciences. There are not-
withilanding certainof thofe Laws, which do not
rightly quadrate with fome of he moll: evident
Miixims of the Law of Nature. The Daughters
alone, for example, were obiig'd to nourilTi and
tain Fragment ftill remaining, by which we may fupport their Parents; whilft the 'Sons were en-
form fomeJudgment
of the principal Heads of the tirely cxcus'd. They alfo made a Difference to the
"'- ..^ ^...
pi-ejudice of the Mother, between the rcfpcft due
to her from the Children, and that which they
ow'd to their Father-, which they founded on this
Morality of the Egyptians
\
'tis the Form of a kind
of Funeral Sermon, pronounc'd by fome Funeral
Officer; wherein he thus delivers himfelf in the
Name of the Deceas'd': / have religioufy
fervid,
during my Abode in this IVorld, the Gods which my
Forefathers had made known unto me. I have ever
honoured thofe who procreated my Body. I have ne-
ver committed Murther. I have never been guilty
of
falfe Notion
f
in natural Philofophy: that the Mo-
ther contributes nothing to the Production of the
Child, befides the furnifhing it with a Lodging,
as I may fav, and Nourifhment during the Time
of her Pregnancy,
^^'hereupon a vciy ingenious
See the
BiiliotbecaGr^eeaofMi.Fairiciits, Lib.i, Cap.-], l^ feq.
Heeateus of Jidera had wrote the Hiftory of their
Philofophy;
Diog. Laert. Lib 1, Sell. 10-, 11-: But this Book is loft. See Menag. i. 1.
^ See Mar/ham, p.
i%^
Edit. Lipf.
,,.,..
> ., ^
"^
'E-\u )S T
04Kf, if iipvai iMi mfiJ'ei^cif, iv^.Cuv Jii-nhKV, onv ye^yov
mtim ituipa aiw,-/ ^jv fioc e^p^r rxf 7?
70 aiud ua y.nnm.VTa( 'ni/UMV an' twv -n aM<i' di^uTmv in [771'a] eLTtiKT^va.-
ovn -Traecr.rs.-m^ny.vv ATi^ittnm- ovn
a'/Xo cV^ec ci<{m^y
J'icT^.^dfu,y. Porphyr. de Abftinentix, Lib.
4,
Sed. 10-, ju.xta verfionem Euphanti ex lingua Egyptiaca.
See
Marjham, *. J56.
, , , 1
r.-/-
/- /
nn-a tt
>
See Mar/ham, who has collefted them with care ; and Mr. De Meaux, who has copy d him in his Dijcourjejur I Htjt. Um-j,
p.l()i, isf'feq.
Edit.Holl.
^ ^ ^ ^
,.,,,,,,
=
Tfify TKf TBKsaf iHciy-iv miai i-hfj.iii dytLyM, (jm ^vXoyLivoici. Tnfi A^ya7gcf.(n
Traaa. avitym, Xj (Mi fits^Ofxieif <rt.
Herodot, Lib. 2, c.
35 ,
p. 64,65,
Edit. Steph. Et
p.
102-, Ed. Gronov.
,
^ , ' ^
~r' r,- j
'
'TTWAi'isaa-/ -kv im't^^ (Jiiyoif iT,ay ^vcu Ttif y^ntnui, tw A' miiss^
T?ipc -t;
X*"'
-^i*/}^' "^V ^f*?"-
L'wdor.
Sic. Lib. I, p. 51,
A-.
A (.>ommcii-
of
tie Science
0/
Mo r
a l i
t y.
39
Commentator
has judicioufly remark'd, that in ces of the Pentateuch, a tacit
Oppofition to the
that
Law
of the Decalogue, Honour thy Father wrong Notions and Cuftoms
of the Egyptians,
and
thy
Mother
5
there is, as in many other Pla-
% Cleric, in Exod. xx, 12.
S^^| II r nil pTiTTj
C HoTti KaCf
SECT. XIV.
THE
Doftrincof thePfr/^^rWjWasmuch the
fime with that of the Chaldeans., their Ma-
ilers, as feme pretend, from whom theyrc-
cciv'd it. The manner, in which they educated in
Perfia^
the Children " oftheir Kings, and their young
Noblemen
^
gives us all the reafon in the World to
believe, that they diligently apply'd themfelves to
Morality and Politicks. At
''
the Age of fourteen,
the young Prince was put into the Hands of thofe,
who were call'd the Royal Preceptors. Who were
four of
the
moft
Eminent
for
Blrth^ and CharaSer^ that
con'd be found
in all Perfiaj they ivcj-e chofen in the
Vigour
of
their Age
\
the
firji pafl for
the mofi wife^
the next for
the
moft
juji^ the third
for
the
moft
tem-
perate., and the fourth for
the
moft
valiant, 'the
fir
ft
taught him the Magick
of
Zoroaller, Son
of
Oroma-
zus
5
in which -was comprehended all the IVorfhip
of
the Gods : He alfo
taught him the Laivs
of
the Realm.,
and all the particular Duties
of
a good King, 'the
fe-
cond t.iugkt him to fpeak the 'truth always, tho" it
made aga,inft himfelf\ 'the third taught him never to
fuffer
himfelf
to be overcome by bis Pafjions
5
to the
end that he might continue always free., and always a
King
>
by ever maintaining as abfhlute a Sway over
himjclf.y as over his Subjetls. 'the fourth taught him
to fear
neither Dangers., nor Death
;
for,
by
fub-
jeSting himfelf
to fear, from
a King he beco?nes a Slave.
A Learned E.rjift}
Author", who was Mafter of
almoll all the Oriental Languages, and even of the
Dead Language of the Zend ,
(^
ror fo it was the Per-
fians call'd the Books of their frmous Zoroafter, or
Zerdufljt
:)
pubiifli'd, fomc Years fince, a Eatin
Tranllation of a Piece inVerfe-, which is itfelf but
a Veriion, into the Modern Perfian, of part of the
Books of that antientLegiflatour. They who have
read that Abridgment, call'd Sad-der,\}\A,\"va per-
fuadcd, readily fubfcribe to theJudgment ofa Learn-
ed Journaliil'^
;
who fiys, that thcvQ-3.xe,amongft
fe-
veral good Precepts of
Morality, many f'uperftitious,
and trifling 'things
;
I have in my Notes
"
on Mr. Pu-
fendorf reported part of thefe Maxims; which are
indeed highly conformable to Reafon. And here
the Reader has the moil confiderable of the rcll.
{viz.)
If
you^ will be holy, andfave yourfelf, you have
two Rules to praSlife: 'theoneis,thatif in this World,
you love Paradife better than any other 'thing what-
ever, do not
pofj'efs yourfclf of
the Goods
of
another
;
for Paradife is worth more than all the things
of
this
World
\ becaufe this World is only as it were the Space
offive
days; whereas Paradife is as it were an infinite
Duration. And
if
the Pojfefjixin of Paradife be mo(i
agreeable to you,
fet
not your Heart on thefe poor
'things : Remember to do good to every one, for Acls
of
Goodnefs are excellent fForks in this Eife. Do then
unto Men the fame things, that you woufd they
f/jou'd
do to you . 'the other Rule is, to
offend no body with
your tongue
;
but to promote, by your Humanity and
good Nature, Society amongfl Men.
Do
^
your En-
deavour to follow truth, without any Adulteration
;
fieek
it with care,
for
it will make your Soul
perfcol :
Of
all the 'things which God hath created, there is none
better than 'truth.
Have
''
no Commerce with a Pro-
ftitute : do not feduce the Wife of
another, tho"
fije
ticUi
your Heart, and tho'
floe
lay Snares
for
you.
Do not
offend your Father,
'
who hath brought you up ; nor your
Mother, who hath carrfd you nine Months in her
Womb ', nor the
Prieft,
who bath taught you the Ma-
xims
of
Goodnefs and Virtue.
'
I do not fee of what ufe
"
"
r..nr__. t-k: r>..i u:
" a Man Can be in the World, who is without faith
i
un-
"
fmcere in his V^'ords, and unfteady in his Promifes.
their Notions of Juftice were right enough. As for the
Chineze, whofe Opinions and Cufloms were unknown to
us till thefe latter Ages; the celebrated Mr. Leihiitz aflures
us,
^
that, in Matters of Morality and Politicks, the Learn-
ed of that Country far exceed ours here in Europe. Per-
haps this Encomium may be fome what over ftrain'd
;
but
however this at leafl: is certain, tho'
* Mr. De St. Evre-
mond be never fo much of the contrary Opinion
;
that
there are a great many moft excellent Things to be met
with in the Books of
''
Confucius, (or Ciiw Fit Cu)
: who, not
to mention the Divine Honours which have been long
fince paid him in that Country ; is fo much elfeem'd for
his Philofophy, that there are in every City publick Schools,
where his Works are expounded ; and where one muft
ftudy fome time, before he can be admitted into any Poll
in the Government. I will now give my Reader a Tafte
of his Principles.
" "
All that, which is the Celeitial Part
"
of Man, we call the Rational Nature ;
what is conform, to
"
Nature and Reafon, we call the Rule :
as we do Mo-
EJ. timr.
* See
7. Alb. Fahricii, Biilraihec. Gnc. lid.i, c.g,SeB.
f,
torn, i,
p. 394..
'
Hv T^? ffoiffe; lulivv)? TOiaiTi^ Ti? loiti Hj 'Bivafi.tt;, o< Xpvi^afASv" 'Hffi'oScG)' tuioKifiei fLXMqa. T()i ri? ?i/ rSir, fpyoi; yi/tofiOAo-
-ptt-i vj ft-Uv ye fitmv Ihuv^iv AtySiri n/rStu? Iivai, MiT9a,- S' avSpi $''^ia w(>ii|Xv' apx'* ?
I" V't3 Thef. init.
p. 4, tom. X,
H. Steph. Edit. & p.i. A, tom. i, Edit. Francofuiti, 1620.
*
Oper.
^ Dier. Lib. i, virf.^yo. Edit. Cleric, cujus vide Not.
*
He liv'd about the fifty eighth Olympiad, about five huadred and fifty Years before Jefus
Chrifl:. See the Bibl. Grxc. of Mr."
Tairuiui, Lib.
1, c. i 1 , Seft.i.
''
Seethe ParrhiiJ;ana,Tom.\, Anic\ci,Tp.T,
t.
and the fine Difcour/e oi Houdart de la Motteu^on Poetry, e^c. ^.ii,(^feq:
tdtt.Holl. An antient Philofopher, mm'd Emtcflhenes, did long ago advance this Propofition, which does at prefenc fo much fcan-
dalize the Grammarians and extravagant Admirers of Antiquity: rioiiiTfii/ yap s'lf*) xavra ^rojcaif^ffSai 4'''Xar"yi'a^, du SjoaffKaAi'<-if,
which are the very Words ot Straio, who vainly endeavours to refute them, p. i8,
^
feq. Ed. Am/}. 1707. & p. If, D. d.
Cii/aHt). Nor is it likely, that what Madam Dicier fays thereupon, in her Preface upon Homer's Iliad,
^.6j,(^feq.
Edi;. Paris, will
make Men quit this Opinion of theirs, who have not devoted themftlves to the idolizing of Antiquity. Perhips too this new
Vcrfion, done by f) aHe a Hand, will not a little prejudice the Original, in the Judgment of thofe who have not toil'd much in
frutiying it, notwithflanding the Care Madam Dader takes at every Remark to cry out. This is admirable! this is divine! .as if ftis
had fome Diftruft, that without fome fuch Advertifemcnt, the great Beauties of Homer would not be perceiv'd. Perhaps too it
Were to he wifh'd, for the better underflanding this Poet, that his learned Interpreter had made ufe ot the Remarks of other
learned .Moderns; and that die had not fometimes fo faithfully adhcr'd to the antient and common Latin Verfion. For Inftance,
lib. I, ver.yiS, fhe turns, cv Sijui/feo, yljfurez. moi,&iC. for prenez,
y
garde, ConfderrceU whatyon engage me in: as it is well expounded
by Mr. Boi, O^yer. Cn>. c.29, p.
115- Verf. i ^i, Jxii s irxpixiveexiyVousneponrrezmefurprendre; intiead of, fous n'echapperex.
pas, Xou Jliall r.ot avoid vhat I have refdv'd to do; as Mr. Gr^viies has correfted the common Vcrfion, in his Notes upon
HefioJ,
Theogon. vcr.615. and this Correilion has been followed in the fmall Edition of Wctflem, puuliflied in 1707 ; and which might
have been very lerviccable to Madam Dacier. Verf. 410, 'Iva irii/re? i-rivfavrcu ^o.gla",', the L?/ Tranflator has ridiculoufly
put, Ut omnes fmantiir rege : Madam Dacier tranflates, Afin qu'ils jou'tjfent tons de la
fagejfe de leur roi; and thereupon ftie makds
a very (ubtle Remaik, W'hich fhe might have fpar'd, had fhe tranflated
Afin
qu'its foient tous punis pour leur roi, according to the furs
Expolition of Mr. Gr^vius, upon Hefiod, Eyp. verf 140; follow'd by the lad !/( Tranflator, in the Edition of IVetflein. I_ fhall
mark but one Place more,Verf. 178; iK]xre Agamemnon fays io Achillei; 'ei {j.a.7M xaprtfoi tact, ht'Si xa eo'! rCy'X'SMnfj.Sitii esfi.vatU
Unt, d'ou te went ta valeur ? n'ejl-ee pas Dim, qui te
/'
a donr.ee ? It fhould be turn'd, N'efl-ce pas ttne Diviniti ; that is to fiy. Theiis
yoHr^ Mother, as appears by Verf iSo. But our Admirers of Homer, and other Pagan Authors, wUl, whatever it ccfts, find in them
tholV Ideas, which are peculiar to the facred Writers.
I apply to the Poets in general, what Mr. Le Clerc fays of
HefioJ, in the Extraift inferted amongft the
Additions of thejettr-
nal de Tre-doux, Efit. Ho//. Tom. i, p. 262.
*
Parrhaf. Tom.i,p.4f.
'
Septem
fuijfe
dtcuntur uno tempore, qui fapientes
O"
haberentur, &
t^cc^reniur. Hi omnes, prtiter Milefium Thaler., civitatiius
fuis fr^fuerunt. Cicer. deOrat. Lib
3,
c.
34,
"
*
Kai zarafialoi a ti<; mzxv tviv eo(plxv roicivryiv Saav, ^yijiaTCt jSpaj^Ea a?'ofiv;ijxo'vUTa ?? eipi)(Xva. 'Outci h) xoiv^ ivviA-
?ci'vT6? aTpx>iu
tJ;^ <ro$/'a,- u.vihci'j 71a '.iToAAoivi tiq rov yfiv tv bv AsAfpoic, yfu-iimri?,
tSut.x a iv) vavrei; iiiviai, TNilQI
SATTON, x). MHflEN 'AIAN. P.'iJ?. ubi fupra, tom. I, p. 343,
A, Edit.5f>T.
*
See a Treatils of Mr. Buddeus, entitled, Safientta vettrum; hoc
eft,
diBa illufiriora feptem Crtci* fafientum, drjfertatiomius ali-
quot Academicis explicata, &c st Hati in Saxony, 1699.
'
He was born in the firft Year of the thirty fifth Olympiad, 640 Years before Jefijs
Chrift, and died aged ninety two Years.
See Petav. D. Temp. torn. 2, p. 303.
^
TlfeiSurxTov Tiv o'vTcay, Gedi' iyi'vvvjTov yaji. KaAAi?ov ko'ffft'* iro'mjxa yhf
OeSv.
Uiog. Laert. Lib. J, Sect. jj".
Sc p.23.
Edit. Co!on.
Edit.
Colon. Jillobi: See the Bibl. Choi/ie ot Mr. Le Clerc, Tcm. 2, p. 49,
& ieq. where Thales is clear d from Atheilm. i
of
the Science ^/^
Morality, ^n
ive ought to value ourfihes
more npoHy than the for
it makes almoji
every
Tljin^
eJfe mifora and
iidoming
and fettiiig
off
our ^erfotis. - T^'be
off'cnfroe.
'
Lo-ce Learning^
'rempcraiice 'I'm-
hejt
Way to live up to the Rules
of
'Jujiicey is, to dence, Truth, and Fidelity.
Make
tbyfejf skil-
avoid
doing that, we 'blarae in others.
- fVe fill
by Experience: Labour to
acquire
Dexterity
eight to be mindful
of
our abfent, as -well as and Addrefs : Cherifb Friendjhip,
OEconomy
prefent
Friends.
Do not enrich
thyfelf by Arts, and ^iety. I know not
whether
a fa-
evtl and
bafe
'l^raitices., Expei the fame vourable Confl:ru<ftion can be put upon
another
Treatmentfrom your Children, that your 'Barents Sentence, which is amongft thofe
already
men-
hai-e receiv'd Jrom you. ''Nothing is more t'loned:
*
What bejt enables io bear
Misfortunes
tifeful
than p'^irtue : for
it makes all other Things is to
fee
one's Enemy more unfortunate than
vfcful,
by teaching tis to make a right Vfe
of
one's
felf
them.
---
Nothing is more pernicious than Vice :
Ti i^iMixdiraTov; apsr^' x, yip .-
aMx rS xp^sHxi xciKxg, t'|)//i,'/a toie?. T( /3Aa;G=piuTaroi/ ; utiKia.'
,
yap ri TAsT?a /SAaVlii
iTitpayevoiJiev^. Plutarch, in conviv. lap. ;>. 266. Opufc. Tom. 1, Edit. H. Stefh. & Tom.i,
p. ifi,
D. Edit. Fruhcofur:.
Stoi- Scrm.j,
p.46,
lin. ly. Edit. Geaev. :6og.
* nS? av TIS i.Tvy^>'M paqa. (p/jioj ; ji TSj
'x^fi^g X^^fn
irpaVtroi/Ta? /SaeVoc. Dicg. Lxert. Lib. I, Sed. 36. 8c p.l4. Edit.
Colon.
Allobr.
SECT. XVIII.
PTTHJGORJS,
'
the Difciple of Thales,
and ot'^PherecyiesofScyros *,and Founder
of the Italick Seel;
confderably
*
adyanc'd
the Science oj Morality
;
yet it Jtill continu'd to
be but a ColleSlion oj particular Trecepts, under
Covert and Obfcurity; unattended with
p'n-J-^--
Reafnning, or <-Vroof
Jirifiotle Ipeajcs of him
as
'
the
firji
who attempted to treat
of
Virtue
;
and Horace fays,
'
That he was no mean Au-
thor on the Subjects
of
natural ^hilofophy, and
Morality.
Before his Time, thofe who excell'd in the
fpeculative and praftical Sciences, and were
dillinguilh'd by an exemplary Life; were call'd
Sages, or wife Men : which, according to the
Style of the Greeks,
*
meant the fame with
what we now-a-days term learned, or literate.
Men. (Pythagoras however, finding fomething
too afluming
''
in this Title, took another in-
ftcad of it; by which he fignified, that he did
not think fit to arrogate to himfelf the actual
Poffeifion of Wifdom, being only an humble
Encjuirer after it ; and therefore he gave him-
felf the Appellation of ^Philofopher, or Lover
oj Wifdom: a -Name which has been ever lince
given to thofe, who make it their Bulinefs to
lludy Natural Science and Morality.
"
^ytha-
*'
goras
^
bent his ufeful Labours to reform, and
"
inftru6t the World. His Eloquence could
a
u
"
not but be very powerful, when his Inftruc-
tions had fo great Etfed:, as to make the In-
habitants of a very large Town
'',
deeply
plung'd in Debauchery, entirely quit their
luxurious Way of living ; and betake them-
fcl-reo to a Life ^ flrJ^S- Sobriety and Virtue,
He prevail'^ even v/ith the Ladies to part
with all their fine Cloaths and Ornaments;
and to prefent 'em as an Offering to the prin-
cipal Deity of the Place. It was his fpe-
cial Care to corred: the Abufes committed in
in the
*
Marriage State; without which he
thought neither publick Peace, Liberty, a
good Form of Government, or any the like
Things, for which he labour'd with very
great Zeal, could make the People happy.
'
His Affedkion for the publick Good ot Man-
kind, made him refolve to carry his Inftruc-
tions to the Palaces ofthe Great. He had
"
the good Fortune andGlory of having form'd
"
Difciples, who prov'd fome of the moft ex-
"
cellent Legiflatours
;
fuch as Zalcucus, ' Cha-
"
rondas, and others. He had travell'd
"
very
much in the Eajl
;
more cfpecially among the
Egyptians, the '^erfians, and the Chaldeans
;
from whence he brought many of his Notions,
with his Method of Teaching; for he deli-
ver'd his moft excellent Precepts under the
Vail of Symbols and Enigma's; and there is
but
a k
u
"
He flouridi'd about the fixtieth Olympiad, five hundred and forty Years before Jefus Clirift. Authors nrc not agreed as to
the Time of his Birth and Death. See
J.
Alb. FaSncii Bihl Grdc. Lib. 1, Cap. 12, Sedl. i. and Baylc's Di(ft. Nor.
(&)
*
Our Author fliould have faid Syros. See Me?iag. Objeriiat. on D:og. Laert.
p. 69,
Col. i. &. Cellar. Ceogr. Tom. i, p.834..
8c SuitUm
in
OspexuSvij. 3c Strab. Geogr.
p. 487. B.
*
DMicr'%
Life
of
Pinto,
p.
68. Edit. Varis. You may alfo confult the Life of
Pythagoras by this learned Pcrfbn, publidi'd
in
1706, before his Tranflarion of Hierocles's Comment on the Golden Verfcs; and of thofe Golden Verfes, as w';u as of ihe
Symbols
attributed
to Pythagoras.
*
UfuT- ^iv SI/ s'^xE^pviss nviayo'pa; vet) a'pErq,- Eixtiv, Magn. Moral. Lib. i, c. i,
p. i+J", c. Edit. Paris, 161^. cc
P-
ij>2.
A. An.
165-4.
'
Kon fonliJiis aticior Nattira, -verique. Hoi-a/. Lib. i. Ode 28, 14, ij-. Ses thereupon Meffrs.Le Fewe, and D^i'/.'r.
'
Sec
Scheffir. de Nat. & cenftit.
Phil. It.ilic, Cap. 6. So that the critical Ccnfure of Laciantius, Infi.
divin. Lib.
4,
cap. i. Num.
10- IS not over-well grounded.
''
Cicer.
Tiifc. ^u/tfl. Lib.
f,
cap ? P>'og. Laert. Lib., t, Num. 12. & p.S.~^ Ed. Colon. Allib.
* Mr. Bilge's Diftionary,
p. 2441.
Second Edition.
*
Cr(ifoi/,
in ndy. See Juflin. Lib. 20, Cap.
4,
prtotum.
*
'^ceRem.
(Fjin BayJe'sDiaionary, p. 2442, Col. I.
*
Ibid. Rem. (Gj""
'
^^'^Jamblich.in vttaPythag. Lib. I, cap. ?o, Seft. 172. and D;o^. Lacr/. Lib. 8,
Set. i^.
& P-f77
- SceDio^.
Laert. ubi iupa, StSt.i,
"
faid fo many fine Things.
--
The Acqui-
"
lition of 1 ruth was, in his Opinion , the
"
only Way to become like God; But the
"
Way to difcover Truth, is to fearch after
"
it with a Soul that is purify'd; and has fub-
"
du'd the Paffions of the Eody. The Fol-
"
lowers of
*
this Philofopher taught, that a
"
Man perfedls himfelf three Ways: Firft, by
"
converting with the Gods ; bccaufe, during
"
fuch Commerce, he abllains from every evil
"
Adtion ; and thereby makes himfelf like the
"
Gods, as far as fuch a Thing is polhble.
"
Secondly, by doing
"'"
good to others ; for
"
this in God, is one of his Properties; in
"
Man, the Imitation of him. Thirdly, by
"
departing out of this Life. The moft ex-
"
cellent Endowments Heaven ever confcrr'd
"
on Men, are, according to Pythagoras
**,
"
thofe of fpeaking Truth ; and doing good
"
Offices: 1 hefe two Things, fay the 'J'ytba-
"
goreansy nearly refemble the Works of God."
This
"
Philofopher very earneftly recommended
Sobriety, and Moderation in all Sorts of Plea-
fures. Heforbids
''''
the leaving this IVorld with-
out esprej's Order from
our General^ that is^
Gody iiho has given each Man his 'Toji here.
But, when we are call'd upon to quit this Life,
he would have us do it with a good Grace,
and without any Concern for the Lofs of the
Pleafures of this World ; all which he ligni-
fies to us -oy thio fyinboliral Sentence :
" "
Not
to return back again^ when we are once entcr'ct
upon our Journey.
^^
Another of hisSymbols or-
dains, not to
pafs the Equilibrium oj the Ba-
lance
^
intimating, that the Rules of Equity
and Juftice ought exadly to be foUow'd.
See Scheffir.
de Nat.
c^
Conjl. Philof. ltd. Cap. i
j
.
'
See Diog. Laen. ubi lupra, Scl. 7, ibique laterpr. 8c Ed. All.
p. 370, 8c feq. and the Bibl. Crtc. of Mr. yairiciui. Lib. s,"
cap. iJ, Seft. 4..
'
See Mr. F^bricius ubi fupra, Sedi. 6,
p.
469.
*
'O'jte yap sicsTv" ouc^^rov fj TaOijTO'.'. aipxroti Ss Xj it/iparov x, vo'vjTov OxsAafx6vv sfi/ai to rpSrov. Flulttrch, in Nutna,
p.
6y,
B, Ed. prancof. & p
118, Ed. H. Siefh. See Bayle'i Dpct. Not. (N)
p. i++(5. Col. i.
'
T>jv T6 ajBTviv ctpuLoviaii uvai, >y T'^v Oy.'fiav, jt) to tiyx^ov axtiv. x, tov soV . . . $iAi'au Tf t1vai> evap(xo'visv leorvfra. Dig^, Laert,
Lib.8, Seif>. 35. & Ed. Col.
p. fS/
See Ariflot. Mag. Moral. Lib. i, c. i, p. 191, A.
'
SceD;o^. Lacrt. ubi fupra, Seft. 14, ibique Intcrpr.
8cp.f69
Edit. Colon. Heredot. Lib. 1, cap. 115. Diod. S/V.Lib. I,
p.88,
B, towards tlic End. Mr. Dacier pretends to explain in a figurative Scnft, this Opinion of tlie Tranlmigration of Souls,
but
fee what Mr. Le Clerc fays to it, Bibt. Choif. Tom. 10, p. i8f, & fcq.
See Mr. Bayles Didt. Rem. (F) towards tlie End, p. 244.5-, Col. 1. 8c Rem. (M^
p.i^+f.
Col. 2.
"
Upii Tijv flt/ctv oixo'iijiaiv ava'jfi, x) tv); nuBayspmii,- (pi^oco^iuf; to TsAeio'raTov ffKoTov ixxxAumi, Hierocles in Prif. ad Carrn.
Aureit, circa Ji/^em, p. 13,
Ed. NecJh. 5c p. 9. Edit.Lorid.
Tomfci-r.^i, Xlxdrm tcc-jtU-tu- nu6i',o',ja. te'/' cfioi'afr/ 0.=i). Stob.E.c.o^.
Lib.2, C.J, p. 163,
lin.
44.
I have here all along taken the Words of Buyle, Rem. (N), Artie. Pythxgorus, p. 1446, Col. 2,
'
See Schrffir. de Nat. ^
Conjl. Phil. Ual. cap. 10,
p
78.
*
."^ee the Words (M)'/?/<jp and ^ietifme'^ in Diiiioimaire Univer/cl, a Trevoux, 171 1. >
Scheffer. ibid. cap. 7.
"
Apud Phor Cod.
149, p.
1J13,
lin.j-/, Ed. Roth.
'
Asi/Tcpov, tv Tiu Ju TTOiuv OsB yiip THTo Xj dti'a; fxinyjiteaf.
Ibid. lin. fS.
* *
n'jflayo'pas t^eyf. S"9 TauTa tit t5v icJv toT^ dv^fdiToif 3iS'ff9ai HdAM:;a, to', t6 dxyih'vsiv, k} t3 ivefyeriXv' 1^ TpojETiSii, irt
X, "dine Tol; c5 Ipyoi; Sxirepov. ALliun. Var.
Hift. Lib. 1 1, c.
S9'
Ed. Periz.on. 8c Torms.
' <
See Diog. Laert. ubi fupra, Seft.p. 8c Ed. Col.
p. 5-73. 8c Jamblich. Sea.41, 42. Eii.KuJler.
* * I'eialque Pythagoras iajujfu imperatoris, id e/l, Dei, de prsjidio
^
flationc
vits decedere. Cieer. de Senecfute, cap. 10. Plato,
(in his P^<j''o, p.
61. Andp.377,P,
C,
oi Nature, but
admitted
of
pofitive
Laws
Lc c^^y^"^^
confequently
believ'd,
that all Sorts
ot Adtions are in their own
Nature
indiffe-
"
rent; and that they
become
good or bad
"
according as it fliall pleafe Men to
cftablilh
"
fuch or fuch Laws." I cannot fay,
whether
what has been alledg'd be exadly
conform
to
the
Sentiments of Archelaus : But
certain it is
that Socrates, his Scholar and
Succeflbr,
had
quite different Ideas of the Nature
and
Foun-
dation of the moral Part of
humane
Adions.
Perhaps it may be in this Cafe, as it is with re^*
fped to the Imputation of another
Opinion to
this fame Philofopher;
which, in the
Judgment
of a moft able Perfon ', appears
not to be well
verify'd: But be this as it will;
let
us now
pafs on to his Scholar,
who, in every
Refped
much excell'd his Mafter;
and
under
whom
Philofophy took a quite
different
Turn.
SECT.
He was born at CUzjimene in Ionia, about tbe feventieth Olympiad, five hundred Years before
Jefas Chrid. He died aeed
about fevcnty two Years.
^
* Rdph CuflTcrth, in the ExtraB
of
the Siil.Cho'if. by Mr. Le Clerc, Tom.
2, p.
j-6. See a!fo Tom. i, p.Sj.
' See Diog.Laert. L\b. r,StSi. 6.
c F.d. Cofcw.
p. 91.
* Ibd Sed>.8. c
p.
93. Eiit.Colon, Alloir.
'
Mr. Ba^/f's Dia, Art. Anaxagoras, Rem.
(A)
/ Ibii). in the Text, p.^i 14
.Vfc jiaritm frudenter Anaxagorai ii.terroganti cuidiim, quif/iam ejjit Beatus: Nemo, ingulf, ex its, tjiies tu /elites exifllmas : fed
turn in eo nitmeio refertet, qui le ex miferiis (vel mifeni) conjlare credilur. Non erit Hie
divitiis, aut honoritus abundant:
Jed ant
exigui ruris, aut non ambittoU doSrinn
fidelis. ac pertinax cultor
; in
fecejfu, quam in fronte beatior. Val. Maxim. Lib.
7, cap. i,
in extern. Set.9. And
p. ^62
Ed. 5. Gryfh.
* Dio^. Laeri. ubi fupra, Sc<ft. II. Lib. 2, & p. 95-, Edit. Colon. Allobrogum.
'
Some fay he was born at Athens, others at Miletus: His Age is not certainly known. Sec Bayle's Did. Rem. (A), Tom. r
!og.
Cola.
' '
p. 509, Col a.
- --
..; ^ !- S.-i,a.c(ia.- -r^? 'hSjz-:,.-. Diog. taert. Lib. 2, Seft. 16.
And
p-99,
Ed. Col.
Kai tJ Si:<2I'-v iSvut K, -ri a.ic%fbv
'
$j<:si, aAhk vipiuj. Ibid. Sedl. l6.
,
"
i2
An Hifiorical
and Critical Account
their Chief;
and have endeavour'd to bring came out of his School; and wc fliall begiii
their
Sentiments and Notions to thofe of this wih him, who was the moll celebraled, and
g-reat
Man.
We Ihall now fay
fomething of the only one, except Efchiues, whofe Writings
the
moll celebrated Founders of Seds, who we have now left.
w^^^S9M^^'X
SECT. XXI-
PL
ATO
%
as well as Efchives,
"
the better
"
to keep up the Appearance and Air
"
of their Mailer *, that grand Reftorer
"
of Morality
;
preferr'd that of teaching by
"
Dialogue, to any other Method. For as it is the
"
mofl diverting, in that it does, as it were, fct
"
before the Reader the very Scene of Affairs;
*'
where he fees all the Parties concern'd inAc-
"
tion: fo it does, I may fay, better carry on
"
the main Defign, which is to perfwade and
"
inftrudl ; for it is more animated, and has
"
all the Force of a judicial Proceeding, where
"
the Parties on each Side of the Quellion are
"
fairly admitted to make their Defence, as ful-
"
ly as they are either willing, or able to do
;
*'
fo as that the Vidory, which the one gains
"
over the other, can be no farther difputed
;
*'
at leaft when the Dialogue is compos'd by
"
an able Hand ; and one
who is fincerely
en-
"
gaged in the Search after Truth." This is
the Sentiment of Mr. Dacier
;
who has under-
taken to tranflate our Philofopher into the
French Tongue. But lince all Capacities have
not either the Attention, or Penetration requi-
lite to difcern, amidll the Jumble of Arguments
pro and co//, what is the real Opinion of the
Author ; 'Tlato, in my Judgment,
w ould have
done well to have modellly declar'd himfelf at
laft; and have let the Reader feen, what upon
the Upfhot appear'd to him the moll proba-
ble. Thus the ingenious Dialogift of our
Da)-s,
w ho has gi\ en us the new Dialogues
of
the
T>e.id\ never fails to put into the Mouth of the
laft Interlocutor that fpeaks, fuch Sentiments as
contain the Deiign and Refult of the whole
Dialogue; the Want of which Precaution has
drawn this Refleftion upon 'Plato '; that in
his Books the Reader^ "who finds nothing there
laid down as certain^ is always left in Sifpence.
But Cicero, whofe Refleftion this is, does him
Juftice in another Place
*;
where he exempts
him from the Number of thofe,who maintain'd,
that nothing could be certainly known. And it
appears, by a beautiful Paiiage in his 'Phicdoy .
that this Philofopher was, as well as his Map
ter, in many Things well fix'd and determin'd
in his Opinions; and that,
"
if he fecms not
"
pofitively to affirm any Thing in his Wri-
"
tings, 'tis becaufe he
'
entirely follows So^a~
"
tes's Manner of Difputing ; and is in every
"
Thing careful to a\oid the magillerial Air
"
of the Sophifts, and Dogmatills ; who aflert-
"
ed every Thing in a peremptory Manner
;
"
taking almolt always limple and bare Ap-
"
pearances, for indilputable Truths." He ac-
cordingly there introduces Socrates fpeaking in
this Manner:
^ Is it not a mojl deplorable
Mif-
fortune, that though there are Keafons true, cer^
tain, and moji obvious to the Apprchenfon; there
Poiild veverthelefs be found a Set
of
Men, whoy
after having refus'd to lay hold
of
them
;
and
having beeit
frcfevt at fonie
of
thofe frivolous
Dtfputes, ivhere every Thing appears, fometimes
true, fometimes
falfe;
come at length to doubt
whether it be
fo
or no : and injiead
of
laying the
Blame
of
thofe Doubts on
themfelves, or their
oivn Want
of
Skill and Application, they at
lafl
throw it on the Keafons themfelves
;
and tl:>en
peeviply pafs the
reft of
their Lives in vilifying
and
fetting at naught all Reafon whatever; and
thereby utterly deprive themfelves
of
all Truth, and
Knowledge. It has been obferv'd, that there
are four s particular Pcrfons, in whofe Mouths
'Tlato generally puts his real Sentiments ; viz.
Socrates, Tim<us, the Athenian Hcjf, and the
Stranger of.Elea.
And tho' there are fome particular Dia-
logues *, which treat more exprefly and particu-
larly of Morality, than the reft
;
yet that Science
is diffused
'
thro' all his Works
;
and
whatfo-
ever Subjeil he is upon, he feems to have always
an Eye to that. His Principles, as far as I have
been able to colled; 'em from his Writings, may
be reduc'd to thefe following Heads.
The
"
He was born the firft Year of the eighty eighth Olympiad, four hurn^red and twenty eight Years before Chrifl. He died
aged eighty one Years. See Dacier's Life
of
PUto ; who would have done weH, in this, as well as the other Works iie has pub-
'ifh'd, to have cited the Paflages of thofe Author;, from whence he takes bit Fadts^or at leaft have referr'd to 'em e^taftly. One
is not obiig'd in fuch Cafes to take a Man's bare Word.
* Dacier, ibid. p. 68, 69.
* Cujus [Platonis] in librii nihil adfirmatur, Q> in utramque partem muita dijferuntur. de omniius quiritur, nihil certi dicilur.
Academ. ^K^/. Lib.x, cap. i
*
Sjiorum e numero toUendus efl Plato :
---
quia relicjuit ptrfeciijjimitm difciplinum, Feripateticos, ?* Academicos, 2cc. Ibid. Lib.^,
cup.
f
'
Dacier, ubi fupra,
p. 74. 7J'.
f
'Ovyiv< Oai'Sou, ("$1) ux"f3v av ut^ rd irifi', Ji ovT-'Sij Tiv<- aAii9a; k, liiSal^ /oj-H. k,
SvvurH KUiUmt^raj, 'l-xua tJts Ikt;-
av drroffi Sid ri TccpxylyvBc^a' toiSJIoic) Ao'yoi;, toT? duloTg Toli (xsv Zovvfiv cAijSjriv iTvah
Toli ii )x^> IJ->i
^avlo'j n: cii''.mTo, ixviil T}y
icc\i
dTi%via.v- ahha tAu1b, Zm to ahyi7v, afffifv- It< ti; t.a'i'Hi;
d(f'
liU^B ry;\) diVav
aToivaiio' ly vjSi tov Acitcv ^i'ok (//j-uu T6
>.)
^cif^JiHv
T8\- /o'ys; S(a"A;r ra-j 5^ (thus I read, inftead of
t. with H. Sieph
) ovlm Ti] aAiSo'.z? Te k, l-ri-^iu^,- q-p>)5i:i. p. 300,
C, D Ed. L-Wr. And Tom. I,
p. po, C, D. Ed. Serram. Sextus Emfiricitis (Vhr. Hyfot.
Lib. i, cip.j:;, p. 45-, B.~
;
acknowledges Plato to have had fi.\'d Opinions about fome cerrain Things. ("Edit. Fabricii, p.
fj,
Num. 211, & d.)
* Ka5 irff) ixin rav cc S Sokhk w;/ aTet(pu.!vi]ai Sia reTlaiaiv -rfcilmijiv, SiuKpoIa?, TiiJ.iUil> tb
'AS^jvaiS Sivv, tb ?..;rH SiVJ. Diog,
Laert Lib.
5. Seift. 5-2. ik p.217, Ed. Col.
*
As, for Inftance, his two Alcibiades, Socrntei's Apology, Crito, Vhsdo, Gerrim, Philebtn, the ten Books de Rrpiib. and thr
twelve de Legibus, &c.
t
Flenrfi Difcourfe on
?ktt,f . iji, the trujftls Edition, .
of
the Science
of MoRALixr.
53
The End afid Jim
of
all humane
*
JcJioiis is tion
from thatfovereign Gccd\ or bears the near-
fame
Good:,
ai.d there is
'
a fo-cereign Good^ a tjt kefemblance to it:
This Good, which may
Good hy ivay
cf
Excellsuce
\
which every Soul be compar'd to the other,
as Ltght and
Eyefight
pants after,
ihis fovereign Good
mufi
needs be
"
to the Sun, which may be truly
faid to refenible
perfeSr, file
fujficteiit by ttfelj
;
and fuch, that the Sun, but mt to be the Sun
itfelf;
this Good I
whoever comes to know it, cannot but vioji ardent- fay, is Knowledge and Truth;
which
'
produce
jyfeekthe'ToJJeJ/ionofthatalone'^withouttheleaJi Holinefs and
fufiice^
by which we are
as far
Concern
j
or any otherThings, biitfuch as are made as 'tis pojjible, united j, and made like, to
God:
f
erf
eel by thofe Gocds, which have fome
Relation and alio the Love
"
of that fupcrlatively
ex-
thereto. But this can only be found in
'
/^^?
//.-
ccllcnt Being; from whence reiults
^/ei?/7/re
jinite Being, who is the -Parent and
Caufe
of
that is pure **, virtuous, and without
Remorfe.
all other Beings
;
who not only gives to " Things
If
the Sold retires pure, unfully'd by any Conta-
kncwable, whatever they contain
of
Truth; and to gion
of
the Body, as not having willingly had
intelligent Beings, the Faculty
of
knowing them : any Commerce with it, but on the contrary, ha-
but is alfo the Juthor
cf
their
Exi
fence and
Ef-
ving, as it were, always punn'd it, and been
fence ;
being
htmfelf aboi e all Efjence, both in refpeSi always recolleBed %mthin
itfelf by continual Medi-
cf
Time, and 'l^cwer. Without the Knowledge
,
tion
;
that is to
fay,
by truly philcfophizing, and
and PoffefTion of this Good, all other Things effeBually learning how to die;
{for^hilofcphy is
arc unprofitable. And ho' all Men defire it
',
a Preparation
for Death :) if
the Soul, I
fay,
re-
and have fome Senfe of it
;
yet do they not tires tn this Difpofition, it goes to a Being like
lufFicicntly know what it is : nor can they ar- itfelf; to a Being divme, immortal, and replete
rive at a thorough Knowledge of it, either by with Wifdom; where it lives in the Enjoyment
their own Meditation; or by any certain and
of
marvellous Felicity; exempt
from all its Er-
invariable Information from others. For which rours, Ignorance, and Fears;
from all
thofe
Reafon there are but very few Men
',
who ar- '^ajjions, and JffeBions, which once tyranniz'd
rive at Happinefs in this World; and none over it; and from all the other Evils attending
\th.o can obtain it in Perfedion. All the Hap- humane
Life : and leads a truly celcjiial
Life
pinefs we can polfibly attain to here, amounts with the Gods
"
to all Eternity
'^.
So that, be-
to no more, than the Enjoyment of a Good, fides the r/iojt glorious and moji certain Reivards,
which is only
'
the ^rodiichon
of,
and Emana- that good Men receive in this World ", both from
God,
*
Te?.' iivai St^asiLv rav TfUltnv t5 ccyaiov, !x, ixilvH s ana Sttv Txv]a 7-aAAa vpirlecixii aM.' ^x InErvo, tk aMav, p. JCZ,"
H. EJ. Lttnur. & Ed. Sirrar.i. Tom. i,
p. +99, foo,~
Corg.
'
'O 5i :Siix( fiJi/ aiaca \'MX>,< ;
tbVs 'iymx xa.r.a. 'ZfiT^ti, De Refub. Lib. 6, Tom.i,
p.j-of,
E. Sc
p. 477,0.
Edit!
"
niiTaji' S^ Ta liXtazct'ov [ivayxv) eivaij lux^iiv T AyaSo'v tJ Se ) (x>iv, uq Uixxi, -rif't aids? avaixa/oralov Itmt xiyetv,
&; T^y -rb -lyvtirKow iu'5, 6>l(i-j/ li itpie'cct 'iMofj.ivcv IaeTv,
j^
x;> au.i KliijCas^ai , x, rHv uMjuv b'Ssv (p^oylf'^t*, TAii^ t5v aTo'tAKfjiivuK
a(i..t aya^if. In thilei. Tom. 2, p. 10, D. & p. 76,
C,""" Ed. iji.
"
n;iTov fAtvTciivui' airjipsv >')t),
Phi.ed.
p. 78,
Ed.
If</. 3c Tom. 2. p. 17,
B.
&p.477'
E'
.
'
"Oi S' ?x-,ovo'; T Tb 'Aya'ii 4)a(vElai -^ 6ii.oi6tii.&- luei'va. Ibid,
p-
jotf, E, 6c
p.
478, C, Ed. Lugd.
'Oi/T 'Ayaejy ly<vn,.
.- iviv.-jov MUM. Ibid. p.foS, B, 5c
p.473,
G. Ed. LugJ.
P-479.
A,
'Hvi'(J-'i-'*15
5i iv.j5i'iti, BK av to'e, oi|x.-ji, (J)aifi=v aulij X'-'^v xaxiov ixaBflvjiai. D Rff. lib. 6, p. 490, C. & p.47l.Fj
Ed. Ludg.
} See
PhiJo, Tom. i,
p. 79,
D. & p. 385-, C, Ed. Lugdun.
"
Aio z} Tip3rfKi
Xf^
Iviivie txiTffi (fuysiv Zti t&X''", fuy*) Si, iiJLai'MSii i3 KHia tJ Jjva!o/ Cfio'ioifi; Ss, Si'xaiov x", yfiov (JleI^
q)fov.iM;
7vEr6;.
Thextet.Tom. 1, p.
J76, A, B. & p.
ii8, F. Sec alfo de Legibui, lib.
4, p.716,
C, Tom. 2. ti
p.
601, A,"~
U. Lugdun.
"
'OfuivTi to 6pa"3 TO xaAdv, \yiv!;ti\ai\ ti'k'siv aAiiSi;
L^'p"'^']
"^Tf tb aA>)6s$ l^airlon-snj ; tex^vIj Si a.fili;v uKyfiH,
y\ 6pt4'<-
ILEvu), uTrapX^'
fleo^'^s* y'"'"''*') i^i i''^p Ta aAAa avJpwi'B, a^xvara
^
IxEi'vaj ts'tSJ th xl.^fia'' t^; mifuTiix, CfCctt evvtpyov
ji.''m
'Epai- 8K Ml Ti? JaSiu; Aaesi. In Conviv. Tom.J.p.ni, A, B. & p.
j?t,E. Ed. /.^i.
**
*A? liSova;
sSfxiv, oAjra; ip.cd.(i.ivai, KaSapi^- tTovoiiciiav iSf T^;
^-uXIS *u^>5s ^ziq^iii-cti, t2i{ Se iuSi^yeyiv Tcfj.sva?. Phileb.
Tom. 2, p.
66 ,C.~~ & p. 94. G, Ed. Lugdun.
"
PUto bciiev'd, as the Chaldeims did , that the Soul return'd to the Places which are above the Moon; from whence they had
been ftiit into the Body, as a Punifhment, for the Crirres tbey had committed. See Jim&us.
"
'Eiv (iEv xeAiLjj. aTaMxTl.^ ai [/]
^-jX'-i,] hi5v ts ffifiai' (run^sAxsira, ars bSev Koiveoi/s'a avlii iv Toj i3ia tita^a E<va:i, a*A
^iuyS^a a/o, )^
ffuvv-fipoKT.'iE'vi} li'lvi li iiui'iiv, r fjLSAs'oira oe) tbts, tsto S b'Sev aAAo i^i'v
^
opSi; (fiho(:ti((isa, i; Tm 'v'' n^yuvUt
fiU.'a.?.*
p:6oiM5 TsT av eii fiAil>) SavaTB.
---
bth h-e'v tx^"^*! ''?
'''^
ofx^iov aJ^jji tJ Se^ov itTlp5(,Eli)!i, tJ Seiou te x) didvaiov x)
^jov.aov ^Oi a^ixcfisv/i \5xa^x' a'J y
'"Sai/xovi e'ivsi. TAavs)? Xj aymia^ x; (foSjiv x^ dypimv ipxiav xj TiTi/ aA^.wv xtixicv Te;y avSpsTEiMH
oTv)>A:ty(J-^1
---
li; KAi^otr; tJv AsitJv
xf3V3v jxilx 05v Siayyira. P/'i:</fl. p. 80, E, 81, Tom. I. Sc p.jSy, ;S6, Ed. !.</</.
*'
*A M-6V
Taivt'i/ twv;* Ta iiicdnay "zxpA Q?-v re Xj avQpcoxwv, (i9Aa te
^
fiiffSo*
;^ Sa-pa yiyvslafj 'xpd; txEi'voK T-^^ ayaSo*^ o/<
"'''>)
TaptiX^''^
'1 Sixaioffuyi), c-3<5uT av tiii. Kai iJ-u\', s^ii zoAa ts ;^ liiSaiX. Tau'a Toimv Siv l?< af.iidt' 2 (ieys?i Tpsj
ixEiv.x a T-vl<-2v"a Ixilspov TEpi(ityi. Dc Rep. lib. 10, p. 61;, 614, Tom.i. & p. 3:8, F,
Ed. Lugdun. See the De-
scription that follows on quite to the End of ^le Book, |of the Rewards and Punifhments of another Life j as alfo in Ph*de, and
Cor^iajjTom. i,p.fi3.~" d-/'^.
j^n Hifiorical
and
Critical Account
54
God,
avd
Mart ;
and the good Thtrigs which
Probity
naturally
procures for
thofe^
-<^ho with
Covlfaiicy
adhere thereto : they
receive after
their
Deaths
too. Rewards both immevfe
and innume-
rable.
Whereas the
Wicked
are punilh'd, in
another Life,
proportionably
to the dimes
they have
committed
in this.
^Plato lets torth
thefe Principles
with all the
Ornaments ot a
maieftick
Eloquence;
but
intermix'd with a-
bundance of
abftraded,
and
myfterious Mo-
tions ; to fay
nothing
of the Metempfychop of
the Souls of wicked
Men,
with his many o-
ther
Imaginations
and
Conceits
about the State
of
anothir Life: fee,
for inftance,
what he iays
of Love ; in the
Abridgment,
which one of
his extravagant
Admirers
// has given us of
his Thoughts on that
Subjed :
" There is no-
Sorts of Pollution,
and
Impurity." But what
is ftill more to be regretted,
'Plato gg,
even when
he is handling the great
Truths ot Religion
and Morality;
interfperfes
fometimes
veryloofe
Difcourics, upon the moft
fcandalous Excelics
of Debauchery; or at lead very ludicrous Ideas,
fit only to turn Morality into Ridicule. In
what a pompous
Manner, for Example, does
he defcribe
'^
thofe
Voyages,
which the winged
Souls make in Chariots, on the highejt Vault oj the
Heavens; where they contemplate Beauty in its
EJJence
: the unhappy Falls they fometimes
have
from
a ^lace
fo
lofty
and fublime,
quite down to
the Earth
;
thro' the Fatdt
of
fome
one
of
their
Steeds, that happens to prove
ungovernable
:
the
breaking
of
their Wings; their Refdence
in the
Body; how frangely
they are ajfecled with the
((
u
a
fidden View
offome beautiful
Face, ;
which
they
difcover to be a Copy
of
that Beauty, which
they
havefeen in Heaven : their fVings which grow
warm again, which begin to Jledge;
and which
they endeavour to make ufe of,
to
fly
with, to-
wards the Objefi
of
their Love : to conclude,
the
Jw, the Dread, the Terrour, with which they
are Jhuck
at the Sight oj a Beauty, which they
know to be divine; the holy Fury, which
traiif-
ports them; the longing Defire which they
feel,
to
offer
Sacrifices to the ObjeSl oj their
Love, as
Men do to the Gods
?
It muft however be allowed, that 'T^lato draws
from his Principles a conliderable Number
of
excellent Precepts of Morality and Politicks
;
whi>.h are fometimes too fufficiently clear'd and
dilcufs'd : fo that a Reader of Senfe may very
much improve himlclf by the reading of his
Works. 1 here he may find that famous An-
gument, which Mr. 'Pafcal has in the laft
Age urg'd with fo m.uch Strength and Clcar-
nels : For Socrates, after having produc'd the
Reafons he had for his Belief of the Immor-
tality of the Soul; addrciles himfelf to his
Friends in the following Manner :
""
Jf
what I
fay
be jound true, 'tis highly reafonable and ex-
pedient firmly to believe it; and even Jhould it
ajter my Death prove otherwife, and all come to
nothing, Ipall have Jl'tl
reap'd this Advantage
from It; that in this Life,
I have been lefs fen-
Jible
of
thrfe Evils, that generally accompany
it.
---
Unlcfs a Man has Icfl his Scufes, he can-
not but be ajraid
of
Death, till he knows
afj'ii-
redly, and is able to demonjirate, that the Soul
is immortal. To tell you now, that all
thefe
Things are in fail precifely fuch, as they have
been reprefented to be; 'tis what a Man
offound
Scn/e will never take upon
himfelf to averr. But
that, what I have told you concerning the State
and
Man
fion
of
departed Souls, is, in all 'Proba-
bility, either abfolutely true, as I have related it;
or very near the Matter, feeing the Soul is, as
appears, immortal; this is what no Man
offound
Senfe needs fcruple the venturing to
ajfrm; and
he will moji certainly find his Account in it,
whoe'er (Jjall run the Risk : And a nobler Ven-
ture he cannot make
;
jor 'tis fuch a
bltfsful
Hope, that every Soul ought to be charm'd and
transported with it.
'Plato teaches *, that wc ought never to
undertake any Thing, without Prayer to God :
But declares, at the liimc Time, that God
"
re~
jedls the Prayers and Sacrifices of thofe whole.
Souls
ff
Dachr's Life cf
Tlnto, p.
I07:_
108. ~ See Phidriis, Tom.
5, p. ifo. &
fei]. Sirraa. & p. 34^,
B,_
&
fq.
Ed.
eg In his Banquet, for Inftance, and in his Phalrus It is remarkable, that Philo the J^erv,
otherwife a great Admirer of Plato,
durft not undertake to excufe him as to this Particular : If this Philoibpher, fays he, fpeaks fometimes of Celeftial Loze, 'tis but
for Decency lake De V:t. Conto.fl.it.
p.?t)8, B. Ed. Parii. & p. 69+,
i-, Edit. Colon. AUob. See alfo le Ckrc's Bibt.
Choifie,
Tom.
1 1. p. 3 17, (frfq- ^ .. , r,-
1
ike uie of tlie Words of Mr. Fonlenelle, Nonv. Bid. dei marts 1. Part. Biag. ties jnorts Anc. avec les MoJernes, Dial.
4. **
T mak
p. 198. 8c
p. 97.
niieay,y.ei yap (fcGfiir I, ii
iJ-yi
avo'v).* El-))- ru (xij 11 Son, fiio
Edit. LoKil. 1707.
, , T
"
Atm ^''t'ov toT; Ta?Jiv aiiSij,- Efo.uai dSy|:o>v-. Phidon, tom. 1 , p.91.
B. 2c
p. 390,
E, Ed. Lii^dtin.
sX""'''
''"'yoi' SiS^vai iii ai:iv:C.6\i liji. lbid.p.9f, D.
& 391, E
"
OtSafiS? TO ye cI^lkuv srs i'raOov, are xa'.o'i/.
InCritone, Tom.i,
p. 49,
A, Serran. & p.37l, D, Ed. Liijg.
"
'Ouls
afct a'''a.iixsiv SeT, o-Sle xxx-Tii -roiuv aJsva d^^fiiriav- a'S' av c't^v Ta';x>i
ux' uvia.v, ibid. C,
Serr.
& E,
LiiqJ.^
"
MeKii/ rxii/ xxxij (pdfiJv ii a5i/rv. sAar ov ?J, -i, cl^ixircUt-
In Corgia, Tom. I,
p. fop,
C, See alfo
p.5-27. B. Serrati.
c p. 306, H, Ed. I,<^^. See a:fo p. 514., C.
"
"O [ii/flpujTj*-] rjidH T uTefiyji riv aAAav [i;<io)'/,] x} SiV^v z) fieii,- fiovov vojjiriei- Menexen. p. 237,
D,
Tom. i, Serran.
gc p. 404, C, Ed Lu^d.
"
De Le^iiu:, Lib. 8, Tom.i, p. 836, A, &feiii.
Serran. 8c p.64j-. F, & feci.
Ed. Ltidg.
ly M>i5i/ -iCtf a'?iKoJv, 5o';av Ix'To) Tijv (Ay:Vlv aSixi'tf?' tv 13 GtSx(rxvi^yiU&' ii; ii/.aiocuvy\v, ri y-^
riyyec^oci vTo KaxoSoJi'a;;,
^
t
Oir' a."v)i yi)'V(!fXv;;v' a,u' vira a'isla'-a''
l-sX.P'
Savaru. li? -vi 'i3%u}oM (lAAuSa;j SjKanJuvii;
---
2ri srw Siaxsi'fisv- 6 iixai',
(ix^iydidilxt, crpeCAaffilai. ^e^ofcit, tKKau5.'>''a( tm o^SaAfia. TAulv, TiJla xxxx T9iv, uvcci!Xt^iif.evi-^,ee'.ai. De Repub. lib. 2, 361,
C, 362, Tom. 2, Ssrran. & p. 423, B, C, Ed. Lugd. See a Fragment of the third Book de Rep.ot Cicero, in Laclantius,
JkJI.
r>ivi. Lib.
5-. C.12, n
f,
6.
22
See Mr. Pufendorj's, Law
of
Mature and Uaticns, Book4, cap. i, SeiSi:. 20. And Book 8,
cap.3, SeV.4, Num.
4, And
Not.
8,
9.
*
Corg. p. 480, A, B, Tom. I. Serran. Sc p. 294. E, & F, Ed. tiigdun. See Tufend. de
Jur. Unt. ^
Gent, lib.
4,
C.6. Sed 20, Not. I. wheie you will find the Pafiage here referr'd to.
"'"'
De Legih. Lib. 1
1, p. 913,
A, Sc d. at the Beginning. See ?/<!("/, Lib.
4,
c. 6, Seft.
13.
**'
M.,5J Za^iiCtiv ItJ To'Km. De Legih. Lib.}-, p. 742, C, Tom. 2,
Serr. & p.
610, G,
Ed. Ludg.
'"
'fl; ?a vo'ixS; av9?u7ro(; avreyxaioi/ ri'SEfSai, j^
tyv xa-rit. vo;xB?, Jj fiijSiw Sia$piv rSw Tavly aypmraTev iv[f'M'j.
De Leg. lib.
9,
Tom. 2, p. 874, E, Ser. & p. 660, G, Ed. Ludg.
,''''''
'E-s-i 2e xSo-i TSTOi;, AoyKru^i o, ti toT c'/ISv afisivov >j xeXpv 0^ ytvjfisx' Soyfia SoAtaj xoivi'j, vo'fi' xo)vi,aa-:i.
De Leg.
lib.i. p 644, D, See Af/BW,
p. 317,
A, C,
Serr. 8c Ed. L<ig.p. j-7 3.
B-~ See too p.45-, F, G
'"
$aV>i3v1j5 ce fioAoy>iivai ToAiltijSffSai xaS' y,iix.<; [vo'fxa;] ipyia, a.M.' a Ao'yoi ivvi^xa^ rag T^_a? v,(i2? eiu.BS, x, i;^n5Aoyi'<s
lapaei'ivci;' a'x
>!'^'
av'yx>)? oixsAoyiiffa,-, aSe aTa">i6)?, s'Se v uAi'yio XPov?
avayK.iffSs^? ^sxivcac^xt J <:
a-rifvai, ti fxM .^ptirxo-
H y.nji;,
fivjSs S.'xaia. i(p^mvl6 coi it ofAsAoy.'ai t'lva/. In Crim. Tom. i,
p.
5-1, D, E, Serran. 2c p. 374,
A, B. td. Lwrf^.
^^
An Hijiorical and Critical Account
and
Governours of a State are no more, than
fff
Muiijicrs
of
the Laws'^ that -wherever the
Laiv
bears Sway., aud the Magijhates are tts
Slaves \ there -we fee
floi'.riJbihgToiV}is^
and the
greatejl 'Plenty
of
all thofe
good Things^ ive ex-
pa fro/n
the Boiiuty cf
the Gods :
but, on the
ether hand, ivhere the Magifirats
is Majhr,
and the Lazv his
Servant and Slave
\
there no-
thino- can be
expecfed cr hcp'd Jor,
but Rwn
and''
DeColation.
He maintains, that thole
L^^g
sss^
which tend onlj to the particular
Interefl:
oi the
Legiflatour, and not to the
pubUck
Good,
are not really Laws
\
but the
Didates of
Fadion,
Tyranny, and Injuftice.
In a word,
*'
'tis
his fix'd
Opinion
'", that
"
all Politicks,
which tend to make the go-
"
verning Part
powerful at the Expence ot
"
the Subieds; and
which
make all the \
irtue
of a So\ereign to
conlift in fecurine, and
Patience, Goodnefs,
Fidelity,
and Huma-
'"
'0'j5=); tnxtipi'Cei ttive'v ysv 'ixaiv tb'tojv vofxoflfTvj rj ffpiixpo'Talov uTclvlav sSiv Kivvirhv.
Leg, llb-j",
p. 738,
B,
C,
Serran. Ss
p.609.
B, Ed. Lugd. See ivlr. De Manx's, bifcours fur I'Hifi. Uaiv.
p.
J 17, Ed. Holi.
i
SECT.
of
the Science
of Morality.
bl
SECT. XXII.
aNTISTHENES% another Scholar of
y^
Socrates^ founded the Seft of the Cy-
incks\ and had, amongll others, the
famous Djoga.es
^
for his Scholar. What
an ingenious
modern Writer has faid of
Dtogeuesy may be generally apply'd to the
Philolbphers of that Sed.
"
That they
"
were of the Number of thole extraor-
"
dinary Perfons, who run e\cry Thing in-
"
to Extremes, without excepting even Rea-
"
fon itfclfj and who verily the Maxim,
" *
That there is no great ffit without a Spice
"
Madnefsr They had learn'd from Socrates^
that Morality was the moft ufeful of all the
Sciences; and what deferv'd our greatcll Care
and Application. From this moll true Prin-
ciple, they abfurdly concluded
;
that Logick,
Natural Philofophy, Geometry, Mufick, the
liberal Arts and Sciences
\
in a word, every
Thing that did not immediately relate to the
Science of Morality, was to be defpis'd ', and
intirely thrown alide. The tundamental
Maxim of their Dodtrine
''
-zcc/j, to live in
Coi/Jormity to the Rules
of
Virtue'^ which
'
is
fvJijiC'.ent to make Men happy. But the _ Confe-
quences, they drew from thence, were in fome
I'hji.gs too rigid 5 and in others too remifs.
/ -iLe Godsy faid they, have need
of
nothings
this IS their proper a)id natural Condition : Thofe
tlsn ithojiavd in need but
of
a
few
Things
^
do
the
ih.f
refemhle them. To procure to them-
fel>cs then this happy Independancy; and to
Ihew with what an utter Indillerency they
look'd upon Riches, Pleafures, Honours, and
the Approbation of Men ; they pretended,
that we ought intirely to renounce all the Con-
veniences of Life
\
and voluntarily reduce
our felves to the molt extreme Poverty
^
:
And they accordingly purfu'd this Maxim
of theirs in their Manner of living : A
long Beard, a Cloak, a Staff,
and a
WaMet
made up the whole of their Attire,
Equipao-e'
Goods and Chattels. Dicgaies^
for his
P-lit*
would have no other Habitationbut
a
*
Tub
his
Wooden Cup too ', when he came to find
he
could drink out of the Hollow
of his Hand,was
thrownaway. Jntijthenes faid *, hehad rather
lofe
his Senfesy than he
feufihle
of '^leafure. They
thought themfelves entitled
freely to make
ule of any Thing that came in their Way,
without troubling themfelves whether they had
the Owners Conient, or not ; which Practice
of theirs they jullify'd in this Manner. Jll
Things^ faid they, belong to the Gods:
But the
Sages are Friends to the
'
Gods., and all Things
are common among Friends : Therefore a'l Things
belong to the Sages. They laugh'd at all humane
Eltablifliments ", believing th mfclves bound
by no other Law, than the Law of Nature
;
of vyhich they had very falle and imperfed:
Notions. Upon this Principle Diogenes
"
made
no Scruple of coining falle Monev. He maln-
tain'd that
all Women ought to be in com-
mon; and that the Laws of MaiTiagc were
but a vain Subjcdiion.
According
to the O-
pinion of rhefe iame Philofophers,
there was
nothing that a Man ought to be afliam'd
of:
They publickly, and without
Referve,
trod
under Foot all the Laws of Decency,
and Mo-
del!:}'.
^
A learned German
^
not long
fmce
maintain'd
;
That they had never advanc'd
this
Paradox, had it not been to remove from them-
felves the Abufe of thofe, who, making
the
Whole of Virtue to confift in external
Decen-
cy, did under this beautiful Vail
conceal the
moll enormous Pradices.
"
If this be fo,
"
(fays an t ingenious
Journalill in his Re-
"
marks thereupon) their Delign was o-ood
"
but their Means Hark nought : For,"^
as a
"
certain '
Lady, who did not
alwaj-s fol-
"
low
* J^ee D;'o^. Zaert.\\h.6, Seft. t,
&
feqiien. And p. 36/,
^66. Ed. Colon. Allob.
* N!r. Bayls, Diftion. Arte. Diogenes, p. 1049
* i<iil!um mugnum ingenium
fine mixturd demetitU
f:tit. Senec. de Tranq. Anim. cap. ult.
p. 219, Tom. i, Ed. Gronov-.
'
.'ipi^.iiiv avruq (K.iiV.KtT;) Tov Aoiixov yj
riv Oucixoy roTiVTificupetv fxo'vu) Zl irfoaixeiv rm 'H'/kijT xj 'ivtf Tf.iq ItI 'ZaKfATUCy
Si Xj TX I-, xjxA.'it iicA-ifi.arct- Tpafji;jiara yuv (Ajj fiav6aviv sif^s-icsv Avri?6fv>ii; t8{ (ritCppoviZ^ yvo(Xvc, tva,
fxif Stt-pKpoivTi toTj aA-
?orp':':. Ylifia';-hCi Si k, Ttaiixirfiixv, k, MsirfliijV, x, nxtTx. TO Toiaura- Hwg, Lacrt. Lib.6, Seft.
103,
104. Ec p. 43
i .:_4?2.
Ed. Colon.
**
Afiffxii S' avrct: z) tsA* iTvcu ro xar aperiv t-^y. Ibia. Seft. 104.
'
'Avrapxy, yccf t^v a-TJ,v ttvai rrpb-; ivSclMoviav. Ibid. Seft. I I. & p. 371. E-l. Colon.
'
'O? (Air,iv.1-) "(faruB, (SeZv fisv iSnv i7:ai, (iviSevJ? SSMflai' riv ii Qi-^Tq cfj.6vjiv, -ri oAi'yw" Xn'CiN-
Ibid. Se(fl. loj".
2c Ed. Col.
p. 433.
Socraiei h.id laid this before. Sec Xenofh. Apomn. Lib. i, circa fin.
p. 73
i. A, Ed. Farts.
S
*^ee Diog. Li.ert. uti fupra Seft. i
5
.
ibique Interpr. Vid. p.
373,
Ed. Coionn Aiiobr. Sc
P.37S, 379.
*
See Remaik
fG)
of '.!r. Bay'.e'i Dictionary, in the Article of Diogenes,
p. lof i. Col. i.
*
See Dieg. Lusrt. ubi fupra, H6i. 37. And p. 379, Ed. Colon. And Senec. Epift.
90, p. 302. Ed. Gronov,
*
Mavtr.iv (xSA'cv '), i.c^^iyy- ^:og- Lflfrr. ib. Stft. 3. & P-3<5iS; Ed. Col.
Tilv Oeev Iqj xivT.'',' Jji'Aoi SJ 61 {ro(pol Tor; 0or' xoivx Jira TiIv$i'AKV.TivTa apal^iriv co^iv. Ibid. Seft. 37.& Ed. Ca/.p.
388.""
See alfo Seft. 11, & Seft.72. & p. 371,
And
p.
410.Edit.Co/. They excepted not even Things facred. SeeSe<fi. 75,
8c Ed.Co/(7. p.411.
"
M:<Jiv i-ra toI,- xari vofiov, tS; tsTj nxrx (puaiv SiJa';. Ibid. Seft.
71, &.
p.
410. Ed. Col.
"
Tciiura J<AtvTo ;^
Tciitv l^oivETo. cvra? voaifffta ira!fxa?ar^(Oi'.
Ibid.Seft.71 8c Ed. CW. p.
410.
See Sect. to.
&
E.1.C0/.
377, 578.
EAe^E f,i xj xor.'xq cfvat SiXv TUf yvvZixoi' yafiov f;i>tSv omi/.a.tii>v, aAAoi -riu iTitsa.vTCt T? Vlicas'^i rvvsTvjy.
Ibul. Sect. 7*'"~ ^
P-4", Edit. C<j/o.
' See tuddel tlem. Vhilof. jKJlrumeT.t. Hift. Philofoph. Cap. 4, Seft.
jf,
* Mr.
Bernard's KouielUi of
fxly, J703, p.
?/.
'
Madam
Dt VHledieu.
^s
An
Hijlorical and Critical Account
"
IciT her own
Maxim, has handfomely ex-
"
prefs'd it,
C'eji un nit'chatit moien d'eiifelpier la Verttty
lue de la
f
aire z-cir par le portrait da Vice.
It is hut a had Way of
teaching Virtue^ to il-
lufirate
it hy vicious
Images. But let us fee how
they argu'd the Matter :
'
Jkere is not^ fay
they, any Harm in dining: Therefore there is none
in dining in the Middle
of
the Market-^Place.
It is juft and lawful to carefs one's own Wife
:
Therefore'tis jufl: and lawful to carefs her before
all the World. But, as Mr. Bayle has very
well obferv'd ",
"
this is but the poor Fallacy,
*'
a dicfo Jimpliciter ad diBum fecundnm quid.
*'
'Tis as if one fliould fay : It is good to drink
*'
Wtne\ therefore it is good to drink it in a
*'
Fever. Thefe Men knew not, that many
"
Adtions are not good but in certain Circum-
"
ilances; fo that the Abfence of thofe Cir-
"
cuniftanccs may make that a bad Ad:ion,
"
which otherwile might have been a very
"
good one. To lend a Friend Money to pay
*'
his Creditors, is a very laudable Adion :
"
But to lend it him, to be drunk, or to game
*'
with, is a bad one. Some Adlions are ellen-
"
tially bad, and can never become good, how-
"
ever circumilantiated; but there are others,
"
which are fometimes good ; and ibmetimcs
"
bad, according to the Time, Place, and other
"
Circumflances, in which they are perform'd.
"
The Difficulty then may be reduc'd to
*'
this lingle QuelHon : Whether a Man ought
*'
to he ajhara'd, to perform conjugal Duty in
*'
puhlick Vieiv ?
"
I am furpris'd to find this
celebrated Author, whofe Words I have bor-
rovv'd, niaking the Cynicks to triumph
j
as if
Reafon alone v^'as not fufficient to demonftrate,
that their Impudence is vicious, and contrary
to the Maxims of the Law of Nature.
'*
It
*'
may be objedied, fa}s he, to Dicgenes, that
*'
the Scnfc of Shame, in Cafes of this Nature,
*'
is a natural Sentiment
j
fo that to be without
"
Shame on thefe Occalions, is to do Violence
"
to Nature itfelf. But, to this he will an-
"
fwer ; that was this Scnfe of Shame a real
"
Diftate of Nature, the other Animals too,
"
who fo faithfully follow the Impulfe of Na-
"
ture, would feck for dark Holes and fccret
"
Recefles, to perform this Work of Gcncra-
"
tion in: The contrary of which is moll ap-
"
parent. At leaft, this would be uni\erfally
"
trde as to Men, that they in fuch Cafes al-
"
ways feek out the darkclf and moft obfcurc
"
Retreat; which is alfo
'
falfc. It will
"
here be reply'd to Diogenes, that it is fuffi-
"
cicnt,^ that all ci\ iliz'd Nations are fubjed to
"
this Scnfe of Shame.
To which he again
"
will make this Return
;
that the Nations we
"
are pleafcd to call barbarous, have much lefs
"
deviated from the Rules of Nature
;
than
"
thofe, who have, with their refining, and
"
Subtilty of Thought, fo vaftly multiply'd
"
the Modes and Forms of Decency and Ci-
"
vility ; and in Ihort, lince the Law of Na-
"
ture is not fubjedt to Prefcription, it is both
"
right and lawful, at all Times, and in all
"
Places to return back to the Oblcrvation of
"
it
;
without having any Regard to the arbi-
"
trary Yoke of Cultoms and Opinions, how"-
"
ever, or wherefoever eflablilh'd." Theie are
the Reafons which Mr. Bayle puts into the
Mouth of Diogenes. I have noT)efign to en-
gage myfelf in the Difpute; this being no pro-
per Place for it. I Ihall content mylelf with
Ihevving in a fewW^ords, that all thefe puzz-ling
Subtilties of Diogenes, are capable of a very
eafy and obvious Anlwer. Firft, he alfumes
a falfe Principle; to wit, that the Maxims of
the Law of Nature are founded on an Inltindt,
common to all Animals; every Impulfe where-
of is irrefiftible : And yet Mr. Bay/e has him-
felf juftly fet at nought y thofe moral Reflec-
tions, which are drawn from the Condudt of
brute Beads. Secondl}-, Neither is it neceflary,
that all Men Ihould ha\ e innate Idcis of Vir-
tue
;
and ftill lefs, that they ihould univerfally
follow them in their Condu(5L What I have
already laid, is fufficient, in my Opinion,^ to
make Diogenes change his Battery. So that, third-
ly, I Ihall now grant, as much as he pleafes, that
the Scnfc ofShame,with regard toAdtions in them-
fclves lawful or indifferent, is not a natural Sen-
timent: But I Ihall maintain, that humane InlHttH
tion may have Force enough, to make fuch kind
of Adlions \icious and criminal; when attended
with proper Circumftanccs. My Realon is, be-
caufe Men are born to live together in Society,
and confcquently to be complaifant one to-
wards another ; not unfeafonably arteding Sin-
gularity, but avoiding to give Olience to any
Perfon whatever ; as iar as it can be done with-
out Breach of their Dot}-, or bringing on them-
felves fome confiderablc Detriment : in a word,
to have all the Refpcct imaginable for one ano-
ther, and more efpccially with Relation to
thofe 1 hings, that are authoriz'd by an efla-
blilh'd Cuftom. Fourthl)-,There are three Sorts
of Modes or Cuiloms, in the Pradtice of which,
Civility and Decency are made to confill: Some,
which are exceeding troublefome, and without
any P'oundation: Others, which are but little
or not at all inconvenient ; and which may be
difpens'd with, as well as the former; without
giving Offence or Scandal to any one; or occa-
lion to fear any ill Confequence thereupon :
And laAly fuch, the "^^iolation whereof is liable
to very great Inconveniences, and, on this Ac-
count, have the Charader of Impudence af-
fix'd to the Contempt of 'em. I conceive, that
no Man can be obUg'd to fubjed himfelf to the
firft Sort, any farther than his own Intereft,
|
or Condition of Life do neceffarily require it.
As
^
^
'EuiSfi SI imrxToinvivr^ '.J-Ua,
*) tu. fliJfjt^iTp' X; M 'A?>?oSiV.i,-' xj rsiirVg Twa? yipJirx Aoysc. E' ro a.pi:;v ftiiStv jm
ar^rov
s5' lu ayopr? Jcjiv btotoV six 'iqi 5i aroTov ri apiqa"' is'5' apx Iv ayofd
^u anrov.
Diog. Laert. ubi fupra, Sc(k.6^. &
p.4oS._
Ed. Colon.
' See
Augtifl. de Civ. Dei, Lib.
14, Cap. 10,
& L Viv. i. 1.
" Dia. Hi/!.
(^
Crit. in the Article of Hipfanhia, Wife of Crates, a Cynick Philofopher,
Remark ("D), p. 15-64., Col. 1.
Several Nations in Intiia do the cont.ary. See alfo Sext. Empiric. Pyrrhon. hyfot. Lib.
j^
Cap. 24, p.
rj-2. A,- EJ. Stefb.
P'77'
EH. Fiiiric. And la Mothe le Vayir, Dial. D'OraJias Tuiero, p.
15-6.
I Sec the Tranflation oi Pn/end. de
Jur.
Gem.
^
Nat. by Mr. Burbeyrac, lib. 2, cap.
J)
Seft.ij Note;.
of
tide Science
of
Morality.
59
j'^s to the fecond Sort, I do not fee why a wife
iVlan
fhould
here refufe to conform ; lince it will
coll him lo little Pains or Trouble to comply:
wh}', for InlLince, Ihould a Ivlan obltinately in-
fill
upon dining in the Streets, when he can,
with as much or more Eafe and Conveniency,
dine in his o\vn Houle ? However I Ihall grant
Diogeuei^ if he pleafe, that in violating this
Sort of Culloms, a Man at mrji incurs hut the
Cci/fure oj Qoisjnijhvefs^ and Want
of
common
Complaifance to an ejiablijh'd Citjiom. But, for
the lall Sort, there's none but a Cynick^ that is
to lay, a Man accullcm'd to treat all the H vrld
with Contempt^ and to take the Liberty of do-
ing every Thing he pleafes, on an ill-grounded
Pretence of reftoring the L-4\v of Nature^ who
can, out of mere Humour, and without any
Necelht), trample upon and defpife 'cm. Thus
we ought, without Difpute, to make ufe of
Means of
humane
Inftitutlon, and common U-
fage, joins to the
principal Ideas
of
the Things
thenfelvcs. The
fame may
he
faid with refpeSf
to certain Turns^ -which
ferve
modeftly to exprefs
fuch Jaionsy as common
Decency
would have
hid from publick View, on Account
ot the ma-
ny Inconveniences which would
othcrwife
en-
fue
;
not that they have in 'em any Tang
of the
Corruption
of
humane Nature
\
as the
Author
whole Words I havejull before cited,
pretends.
For in Realityythefe Turns
are^for this
Jingle liea-
fonj counted ?node/t and virtuous
;
becaufe they do
not
f
imply exprejs the Things themfelves
;
but the
Difpof'tion alfo oj him who thus
fpeaksof 'em
\
and
whobyhisModeJty and Refervednefspeivs an Un-
eafnefs at the Sight
of
'era
^
and an Endeavour to
conccalthem^ as muchas may be^ both
from himfelf
andothers.
Whereasthey^who mention fhemin an-
other Manner
y
plainly
fhew^ that they are picas'
d
fome certain Terms, rather than others, tho' and diverted -duith the View
of
Cuch 6bjef:ls\ and
^'
^'
fitch ^le.ifure being
inf:mouSy 'tis no JVouder
that the Words too^ ivhich imprint
fuch Ideas on
the Mmdy pould be thought contrary to true
Modejty^ and
friB Virtue. Much more then
ought this to take place, in regard to Adions
themfelves; but- there is no Need at preilnt to
enlarge on a Thing lo evident and clear : Nor
is there, in my Opinion, the Icaft Occalion here
for Revelation; and I could wifli with all
my Heart, that there was nothing more than
theie, and fuch-likc, Objedions of the Cynicks,
to be produc'd, to fliew the Scantinefs of our
Knowledge, I am perfuaded, that humane
Reafon, would not, were that the Cafe, be much
mortify'd at it.
in the main both
lignify
the fame Thing, TL
fiords
Adulteryy Inceji^ ahominahte Sm, are
not infamous
;
attho' they reprefent very infa-
mous ylclions: becaufe they reprefent them no
ctherwifcy than as cover'd with a Vail
of
Hor-
rour
;
ivhich makes us conjider them only as
Crimes
;
fo
that thefe Words
fignify
rather the
Crime oj thcfe Aciions^ than the Jtiions them-
felves : Whereas there are certain Words, which,
wit/'out giving any Horrour at all, exprefs them
rather as pleafng and agreeable, than criminal
;
and with the Jddition too
of
a certain Jir
of
Impudence and Effrontery. Thefe are the Words,
which we call infamous and jJjameful; becaufe oj
tbofe accejjbry Ideas t^ohich 'the Mind, by the
^
Artof
Thinking, I, Part. Cap.
14, p. 137, 138, !c p.
121, 112. Ed.
Amfterd,
'^fmmm.
SECT, XXIII.
AMONG
thofe Difciplcs of Socrates, the
mofl
infamous Actions. They abftain'd from
who were the Founders of new Sedls, their Pleafures, no farther than was neceifary,
we have alfo Jrijiippus
;
Chief of the either to the avoiding Pain and Trouble; or to
Cyrenaicks. He
'
had the Character oj an agree- the keeping up luch
'
an Independency in
able Dehcfbee, a polite Libertine
;
and a Man
of
themfelves, as might hinder 'em from falling
Addrefs, who knew the World, and perJeSlly un- under a flavilli Subjedion, to any one Thin'j-
derjfood hoiv to carry himfelf. Altho' the Cy- whatever; fo that being ty'd to no one particu-
renaicks were
for gratifying Nature, in every lar Pleafure, they might, with the greater Free-
Thingjhe could depre; they did not however af- dom and Indifferency, experience all Manner
fume
to themfelves the Impudence oj the Cynicks. of Enjoyments, By this we may fee, that Vir-
They entirely rejedled the Law of Nature
*
;
tue had no Place in their Syftem of Morality
;
and according to them. Civil Laws and Cuf- any farther than fhe was thought requilite, to-
tom, were the onlv Foundation of Juilice and wards the procuring for 'em, that grofs and
Honcl'cy. They plac'd their fupreme Good in brutilh Pleafure, which was the only Objedt of
'Pleafure ', from
what Caufe foever it proceeded; their Enquiry. This Sedt was divided into fe-
mt excepting even thatj which was procur'd by veral fmall Branches ; one of which
'
made
open
"Dlft.of Mr.Bs/.'e.Art. HfWfiWf/, Rem.CF), p.tj-jS.Col. 2.
See alfoD/o^. Laert. ]\b.2,Se&.6^, 66, O'
fi^-
!<^p-'32,
&
fi-q. Ed. Col.
*
MvjSsv re etvai (pucet SUaiov, yj xMiv,
;')
hcxpiv, aMa. vSfim x, tin. ibid. Seft.pJ
i^y.
& p.ij-2.
I know not how K<j;)iM (in his Comparifon of Ptoo and v4r(/7(j//f. Tom.i, of h\^ Oeuvres dtver/c!,f.
i^-j,
EU. Amfitrd.) ccmes to put He^efai and TheodorHs among the Stoich. This Anachronifm is very confiderable.
An
Hijlorical and Cy'ltical Account
6q
open
Profeflion
of downright Atheifm
;
and in
confequence
thereof maintain'd, that
' a Sage
might JieaU
commit Jdidtcr'm^ avd
Sacrileges^
whenever
he had convenient
Opportunities fo
to
do\ thofe
Things heing evil only, faid they, in
the
Opinion
cf
the Vulgar-^ which was
invented
to keep Fools in Jwe.
Hegejias,
Chief of that
Branch, which bears his Name g
;
made fuch
eloquent, and pathetick
Defcrlptions of thd
Mileries of humane Life ; that feveral of his
Auditors, upon hearing thef; Ledlurcs, went
home and difpatch'd themfelves
^
fo that ^PtO'
lomy. King of Egypt,
where he taught, was
forc'd to prohibit him from touching any more
upon that Subjedt.
e For this Reafon he was furnam'd 6 n=i<r.eava.-.
See Dwg. Laert. ubi
Cicer. Tufc.
Quxft. lib. t, cap.
34
Cyrenaicks, as to
Ed. CbL
_
fupra, Seft. 86. & Ed. Col.
p. 144, 14?.
tc Kd/. A//i*i>.rib.8, cap.
9.^
I know not on what Grounds Mr. BudJeus, to juftifythe
the opinions they are charg'd with, fays, fin his Abridgment of
his Hiftory of
Phtlofophy, Injiit. Hit. nleBic.
Tom c 4. Sea i
? ) that Hege/ui mote very elegantly about the Immcrtalily of
the Soul, and its
haffmefs after Death. The
Atniior^I
cite, lay nothing of thisj Ciaro
mentions him, where he is proving Death to be no Evil, in cafe the Soul does not
fbrvive^
becaufe 'tis then deliver'd from the Miferies of Life. Mr. Dader is guilty of the fime Fault, la his Argument to tUtfi
fh&do, Tom.
2, p.
ij-o Ed.P<r.
SECT. XXIV.
/jRISrOTLE', the moft
celebrated of
^2
all Plato's Scholars, founded the Seft of
the ^^eripateticks. He was the firft of the
antient Philofophers, who gave us a methodical
Syftem of Momlity
5
at leaft of
thofe, whofe
Writings we have left. Father Rapin'', ground-
ing himfelf upon
'
a PalTage of C/cero
j
infifts,
that the Morality
of
Ariitotle,
has the fame
Foundations, the fame
Principles, and the fame
OEconomy, with that
of
Plato
j
and that, if the
latter is lefs frnple,
and has more
of
Splendour
and
Ornament
*
;
the other will be found to be
more folid, and better conneBcd. But I know
not how to reconcile this, with what he him-
felf owns, in another Place ; where he fays ',
That Ariftotle's Morality is too humane, and too
much confined within the Bounds
cf
this Life
;
that he fcarce propofes
any other Happinefs to
Man, than that 0/
civil Life:
Whereas the
Morality
of
Plato, is more noble and fublime
;
is a
'Preparative to a Life
more pure and per-
feif.
And indeed, Religion has no Share in
the Syftem of Jrijhtle
f.
Befides that 'tis not
yet a fettled Poif.t s, v/hether he believ'd the
immortality of the Soul
;
he makes no Men-
tion of Providence but by the By
;
and in fuch
a Manner too, as
Ihews him not to be tho--
roughly perfuaded of it.
If
* the Gods, fays
he, at all concern themfelves with human
JJ-
fairs,
as 'tis probable they may ; 'tis jujl and
reafcnable to believe, that they are pleas'd
with
that in Man, which ts the beji, and the moji
like to themfelves;
{and fuch
is the Underjiand-
ing:) That they
reward them, who love and
cultivate this 'Part
of
themfelves', as taking
care
of
that, which is dear to the Gods : and
'moreover, as leading good and honejt Lives. 1'his
Philofopher
"
makes frequent Mention of a
"
'
Plurality of Gods; and when he talks of
"
Daemons, which he does more fparingly
;
he
"
fpeaks of 'em as intelligent Beings, united
"
to the Stars. However, he acknowledges,
"
as well as 'Plato, his Mafter
;
but one only
"
Principle, which he calls
*
the Immovable
"
Spirit, which moves all Things. In his Syf-
"
tem of Divinity, there are four principal
"
Articles: The firft is, that, tho' every Thing
"
is not eternal, yet fomcthing there muft be
"
that is incorruptible: otherwife all Things
"
might return to their primitive Nothing.
"
The fccond is, that the Deity is an immate-
"
rial Subftance. The third, that his Under-
"
ftanding comprehends in itfelf every Thing
"
that is "intelligible. The fourth, that God be-
"
ing
"
He was born in the firft Year of the ninety ninh Olympiad. 384
Years before Jcfus
Chnfl
;
and died aged faty three YearJ.
Idem forts erat utrifque, [Peripatcticis, & Veteri Acadcmisc,] & taderr, rerum exfetendarum.fugiendarumque
partitio.-
-
- Com-
mmis hJratio, &
titrliquehic bonorum finis -videbatur.-. Ort.nis ilU antiqua I'hilofcfhia fenpt in una v.rtute ejfe fofttam bcatam
-vitam. Acad. Qu^ft. Lib. i, Cap.4,_ 5c
6.
Befides. that Cicero there fpeaks rather of the Scholars oi Phto xhm of Plato him-
felf. What he fays may be true in fome Senfe, and yet the Principles of Plato be very different from Ar.Jlotlesi as the Cafe ap-
pears to be in my Abridgment of 'em.
/ A^i^orwl'JM'e leafl of
aKy made ufe'If'hthe
Greek Father,. They found,
that he ffoke
/lightly
of
TrovUence
,
and
of
the Na^
ture of
the Soul; that his Logick ivas too intricate, and his Morality too humane: For this ts th. Judgment St. Gregory /^Nazi3nie
maVesof
him, (Orat.
JJ
, p.
fjf,
D."
)
Fleury, des Etudes, kc.
p.i8. Ed. Bruffels.
See alfo the Abridgment
of
the Hijloiy
of
Pk-
Wophy, hv Mt. Bfiddeus, Cap. 4. Scft. 3 J.
, ,, , , i r- .
'
t See
Bayle-s Dit. p.jyi. Col.i. Rem. (O). Artie. Ariflot. in c. 11, lib. ., of his ^thitks to Ktcomachu.', tov.-ards the End.
p. 17, B,~
Edit. Taris. Ariflotle fays, that 'tis a Problematical Qiieftion.
Whether the Dead cnn partake of
my g^odCood or Evil}
*
"E. ',if Ti; lT;|xtA(a riv ivSpuTtov iiri BeZv ylvfa: cTef ioxcT, x, 'iivi av luAo-yov
x^'f^'"
"' "^^ '''=?'^ '& '"? t'^yy^^e^^rx
%vTa-.
Ethic. Kicom. lib. 10, c
9, p ib'f, C. Ed. D/w*/. This PaiBge is ill tranflated in Le Clerc s Bibl. Choir.Tom.i,^.\i<,
^
but I'did the Juftice to charge the Fault on Mr. Cudroorth, who cited not the Place where it was to be found; and bclides, has
omitted a material Word of the Original. See B:bl. Choif. Tom.
9, p. 597.
>
Extr:.(ft from Mr. CJTro/j, \aBibl.Chof. Tom. 3, p. 7;, 74..
t, tj i~ 1
'
See his Metafhyficks, Lib. 14, cap. 6, 7,
8 See particularly Tom.
4,
p.483.
B.
"
BM. Choij'ie, Tom. i, p.i
J2.
*
'Atotov it rb fivj vies^at '^vixa tS yii/sc^xt , liv fi!) siSaiffi tS xivSv (SSAuuffa/Asi/ov "Oti (j.v bu diTi'a
1^ ^usii, 1^ Stoi; i; 'ivextt
TK C^vsp^". ^%^ Aiifiuk. Lib. 1, c. 8,
in fine. Tom. i,
p. 477,
C.
'
K.ifm, Tom. 2,
r.39-
' Tom. i,
p. j^i.
IJih. I. czo. 2, Tom.
^, p. 5,
E
'
no>.^ix^. For as lie always has in View Man, as a Member of Civil Society ; 0 he underftands by Politicks, Morality in general;
of whicii roHtich, yroperly fo call'd, is but one Part.
'
Ibid. Cap. 5, ftr totum.
'
Cap.
4,
totnm.
*
To .iv9;iTivov ilyaCiv, 4<JX'i; (^"ymSj^) ivifyeia y!ve]ai, hoI' cifsriiv' li ol 'Z^d.-Sf at apzluh x:3^ Tijv apl^^iv k. rn>.eiiTXT-^v' sr
Si Iv (3iV
ref^eia- c-ix 7^0 %if.iSxv
'iccf a nam, b'Ss fti'a v^ni^cC bTu Ss aSt (xaxapiov kj JuSaJjiavi (Xia i^fitfa, iiz 6\iy<&'
xfo'"'-
CO,"
Tom. 3,
p.'", B
Ed.l'aris.
"
Cap.
7,
&feq-
' Cz'p.i^,fer tot.
^
feq.
*
T:^v i6'-<iv lirxi, iTa'vSTccq, aferctc ^iyoptv. ibid. in_fine,
p.
io, D Xlata. apeT> ov av ^ Ifsrii, aulo rs u iX""
a.roTeMi,i
t8 "pyov a^'S tZ a-cSi(Off(v, Lib.J,
C.J-, init.
p. 27, A.
f-
Ajyoftev yip aUTiiJv, rxi fisv Siava;;'iKCC;, rxi; Si yfiixii;.
Lib. I, C.I
J,
in fine, p.20, C.
*
'H ;xiw ^lavovirixv;, T^ TAsT^jov Ik Sifx.KX^iai 'ixsi x} Tvji/ yi/f<i/ Xj riji/ ccv'it^aiv Siircf t/jiTeiffui iitria xj Xfiv^' ^ ^ ^-"J.
ti
t6s.- viptyiviTai' 59ev x) Tsvofxa 'iaxy,x, lactpov t^pskkAivov ani ts tflar;. Lib. 2, c. i, init. p.20, E, II.
__^
"Tlp<iaipccia;Zi{aiX^t^ op-s'S rj'K6y@' I'wxaTiv-' Si5 aveu vS X) Sjayoias. bV t^iv v| *poai'p6iris,
Lib-O, C. 2, p. 90,
A,
**
Lib. 1, Cap. 4,
per tct.
''
'Eqiv apa. VI apsTii ("vi^'uvj) 'ii'i TpeaipjrixiJ, iv fjnaortiri iaa. rij vfii v(fi5?t tSpurfitUiji Aoyiu, x,(ii; av 6
(ppo'vi^^ ipiats. Msjarvi;
St Sjo itaxi.".'/ Tii; ,u5v, xttV uxep.ScAiiu" tS; Si, xitS' 'iKMt-i^iv
-
sv re tjI? "iraSsffj, j^
Iv rai? xpaiEJi.
ibid.C.
o,
p.20, C, U.
**
De Jure Belli ac Pads P,-fl/f^e;. Ssci. 45-.
62
jln Hijioricd and Critical ylccount
"
to Sin
".
O^'C cannot, fays a more mo-
"
dein
Author
//",
love his Country too well
;
"
the', to iave that, he loleth his Life. A Man
"
may be refolvedly patient unto Death; fo
"
that it is not the 'Mediocrity of Refolution,
"
which makes the Virtue; nor the Extremity
"
which makes the Mce; but the one being
"
with, the other without, Reafon. Saving a
"
Man's felf, or fuJcring, if with Reafon, is
"
Virtue: If without it, is either Softnefs; or
"
Obftinacy.
'Tis true, Virtue ftands, for the
"
moil Part, between two Vices
;
yet is it here-
"
by no more detin'd, than an honeft Man, by
"
living between two Thieves. Therctore the
*'
Nature of Virtue is better exprefs'd by
'Vrc-
"
portion
;
as it alio is, elfewhere, hy
jrijiotle
"
himfelf For they are both of them found-
"
ed in Truth. And as in 'Proportion^ there
"
is ths Equality of a double Ratio
;
fo alfo
"
in Virtue, viz. between the Aits, and the
"
Objects of the Mind. For as Perception is
"
to the End; {o is Refolution to the Means.
"
This Proportion is feen, even in poial
"Jnf-
"
tice\ whole Ads ought to
be
proporrion'd
"
to the Crimes puniih'd.
''
Lib.j.cap.i,
^fecj.
**
'H 'hvlftx, iLieorvi; ic;''fre,1 (fo'ES; ^. Ca/fi). (c. p. jaAAaftaAAov Tipi tol (poCfpa.
ibid. C. 12, mit.
Kipi'ios JtAsyoi"' lev avSpi'i-,
i "Hft TOW xaf.bv faia'ov aSf^ir, Hj Hca ".zia ov Ixi^s'pti iJTro'yt'fa ov]a. C.
9, p.4J'>
E,
.
''
Tav St Cfrei-CaMonToiv, fiiv ryj a^oClcf.. aviovujx'"'
--
4 i' iv Tui fiajiftjK vxepfi^Miiv, ifarii' i Si tw ftiu ^oSua^ai 0pei*?,V)
TB ?i "aiipEtu t^A/ffill'; ?lA55. Lib. 2, C.7, p. ip, C,-.
"
Lib.
3,
cap. 1 1,
P-+7,
C, & d.
^'of
the Science
of
M
o
r lA'ii'r^:
62
they
difobey
their Orders. Thirdly, The Heat coNj.p
in Mtevhj^
onrfches worthy
ofrnat Ho-
of
Jngcr-'-,
which, by u fudden Motion and murs-^ and in
purjuiug
'em, when we re-il!y
Jmpullc,
common both to Man and Beaft, deferve 'cm. He
oppolcs
to
this Viltue on
pufhcs
on the oitended Perlbn to make an Al- the one hand, an unbounded
Jmittion
or V'air-
fauitupon
thoie, from whom he has rcceiv'd glorioufnefs
; which
makes us
believe
ourfelvcs
Blows,
or any other injury. Fourthly, the Pre- worthy of, and afpire to, great
Honours
al-
fumption of thoj'c, who confde in their own though we do not in any wife
defcrvc
them
Strength-^
which they have often made_ Proof On the other hand, a
Meannefs
of
Soul
that
of with Succefs. Fifthly, The Security of thofe, hinders us from knowing
our own MeriV
and
who fear
nothing, becaitfe thsy know no Dan- makes us deprive
ourlelves, either
whollr
gcr. or in Part, ot' thofe
Honours, whether
great
Temperance \s, according to Jrifotle"; a or fmall, of which we are worthy.
'1
hus
Mediocrity in rfpecl
of
the
fenfual '^Pleafures this Phi!of:)pher
makes that Dilpolition
of
cfTafe
and Feeling-^ and in fome meafure, in Mind a Vice, which is, if not the iame with
yefpea of
Grtej too: inasmuch as the tempe- Chrillian HumiHty
^
at leaft a Thino-
in itielf
Tate Man grieves not to fee himfelf depriv'd of very innocent.
He goes ftill farther
and.
Plcafures; whereas it caufes great Trouble and maintains,
that this
''
Indilierence for Ho-
Vcxation to the Intemperate. He owns that nours, which he imagines to be more com-
an litter hifenfibiUty
as to 'Tleafure, which he mon, than excelfive
Ambition; is alfo worfe
makes one of the oppolite Extremes of Tem- and. more oppolite to Magnanimity.
The o-
perancc; is a
^^
Thingfearce ever known infail
-^
ther
"
Virtue, which has for its Objed
Imall
as being contrary to the very Frame, and Conjii- Preferments
or Honours; has
*
no rix'd
Appel-
tution
of
humane Nature. There are two Vir- lation.
tucs which concern the Ufe of worldly Goods He afterwards treats of the Virtue, that
pre-
or Riches; that is to fay,
"
of Money; and. fervcs
a juft Medium, with refped to Jnocr-
whatever elfe is capable of being priz'd by viz."
Maiifitetudeox Mildne(s; which
conlifts
Mone}-. The firft, which he calls Liberality,
in being
never angry, but where there is
fuffi-
has for its Objed moderate Weakh; and it cient
Caufe; and with
fiich only as deferce it'
confjis in preferving a jtiji Medium ", as to gi- and in a Degree too proportionable to the Nature
ving or receiving
;
but more efpecially as to gi-
of
the Faff
;
on proper
Occafmis only; and no
ving. The Vices oppolite to it, are
" ^va- longer than is reafonable. The vicious Extremes
rice, and 'Prodigality. The other Virtue, which are, on the one hand,
unreafonable
Tranfport of
he calls Magnifcence, regulates the Ufe of ^PaJ/ion; on the other, an Indolence, that
takes
great Riches; but it conlifts only
"
in giving, every Thing without the leaji
Refentmenf.
So
or expending. Its vicious Extremes, are, on that, according to our Philofopher
"""
the
the one hand, a fordid 'T^arjamny
;
and on Contempt of Injuries is a Vice
and Re-
thc other, a ridiculous and mijiakcn
'Profufe- venge a Virtue : The firft, the
Property
of a
iiep-
_
_.
fervile Spirit
;
the other, that of a noble and
^>'///(9/^/^ then particularizes a Couple of Vir- generous Soul, There are three
Virtues
tucs, which concern the juft Medium to be ob- which take Place in Converfation,
or in the
fetv'd, with relation to Honours; the one is common Bufinefs of Life. The
firft
which
'"'
Magnanimity, or Greatnefs
of
Soul; which may be call'd
Jff
ability, or a reafonable Com-
plaifance
"
Kai Tsv fiuftjv ? Itii Tvjv ccvlpiav i^i^ifVsfJ on ly oi av^fuu, ^uixoii'SeT;- ibiJ.
P.4S,
E. I find by the Extrift in t'je Bitl.
Ckoif. Tom.
J.
p. 354., that Mr. Grew, Tending ^Iriflotle too hadiiy, charges him with a Contradiftion
; from which
'ti.'; no
difticulr Matter to clear the Philofopher. 1 doubt not but he hid in View this Chapter, the' he cites the Tenth, where is nothinp
to his Purpofc, either in mine, or any of the former Editions. It appears by the Extrai: here given, that Arijlotle
is far from pre^
tending, that Courage belongs to the Faculties, deftitute of Reafon. Neither is the other Pafl'age more exaftly cited : For Arijhtle
<3oes nntjpeak of Courage in paiticular, but of Virtue in gencr.'.l : 'h Zi aperi) -rrit^;
tijcvi; a:ipiS'.c;afa nj afiei'viui/
iV- Lib.
2, c.f,
p.37,E Virtue is more exaft, and more excellent than all Sorts of Arts.
MtdirvK |:> TTepl viSovi? ^, Ew<])(Joo-ijvv). mtfl ra,- rctxu.aq
---
Sv 1^ ri. Aojxa tZa. xiaaiet clv^ai S' uirh i(j)ij lu- yebrti;.
VTOv yap Kj B 6iJ.oii-K iqt '^ip't TXi AuTa; aAA 6 fiSv a.t6Aaq(l^, tiu /uTEiffSaj. (xSaAov ft Zut on rZv viSfcoi/ ou Tuy^^vEi'
6 5s
ri$p-.n', TB
IJ.-/I A'jTei'trfia/ t>) axoun'oi, sy r izix^"^^-
''"^
'iSs'. Lib. 3, c. 13,
PS'^'
^'
T^'
A, B,
j-j, A , B.
f"
E^Aei'TovTe"; iiirepl rai; liSova;, xjtfrlov ij Su j^ai'pouTe?,
a Tai/u yivovr:u' b yip avipm-nuyi i:;'v vi TtKOCum
avauff6;1Cl'a.Ibid.c.I4,
p. fV
C.
^
X(iljfj.xTCi Si AtyjfXiv s-^i/ra CVwv v) aila vofxiVfxaTi ixirfetTcc'- Lib.
4., c. I,
P-^^t
C.
A6u6fio'Ti5,- oixsT iTO( vipl %p>ijj.ura fj-EffoTiij. EvauetTui
yi.f 6 Au6spiiS"
-
vrep) iom %pyifi.si.Tav x) A^v|/iv'
fiaAAoi/ S" Iw rvi
So'^-si. Ibid. inir.
p.j-f,
B.
"
'AviM-Aipix. '.Iffjh/a. C.J. Ibid.
p.
f8, A.
'H M>aAaTfr6ia, 6\i% iTffTfp 5 lAevhepiori^;, SicPi'VU Tip) vxTCl^ rkf iv xpviiJ.aJi rpaUii, aMcc Tp) ri; Sairav^paj (ioi/^v. Iv
Tuu,oi<; S vTipixi' r^: sAaOtpioTijI" [xiyiHi Tii^ roiaurm S' s'isaj,-, v; fisi/ j'AAl^^l;J MmpovfiTeia xaABlrat' i; S' C-zspCo^, Bavau-
i'a Zj xTritpoxa?.lx- Ibid, c 4, p. 60. A, B, C.
* "
'H Si MtyaAosi-uxi'f
''
?> (xfyaAa (J-iV x) In tb dvo'iital' "oixev iivai Soxei" 5s
ij.iyaf.oi'vx' hvai fxEyaAtcu aurii/ aiimv,
a^(' uv. 6 yip fi^ xxY a.l!a\i a.u'.i TOiav, v|Ai'?<' x^uv-" 6
5'
lAa-rlo'i/i'v, Jj a^i', ftiKposJ-u^gH, lav t (xtyaAwv, liiv T fj-iTflav,
iav Ti x) iLixpiv S,i,t@' u,v,'iTi EAarloi/iuv tjti.njv a^ioi,
;^ (xaAcr* av So'^eiev
6
/iEyaAuv aSi'. Ibid. C. 7,
p.<>l,E,
63, A, B.~~
'.IvTiTiSE'ci Si -t^ iLtyaXo-i^uxio!, ii jj.ixpa-^ux'cc (aSaAov tiJ; xccvvoTxir^. x, yap yiyvelai fiSAAov, x) xelfiv !:?(. Ibid. c. 9..
in
fine.
y>.6j. A,
'
" '^ "'
,
}y Ibid. C!p. ro fer tot.
* Ibid. See the Greek Summary of cap. 9, and p. 67, D, F..
^^
Tlpxiri^q h Ir! ft.5v |i(rci'Tii5 Tp opya; 6 fiiv bv i(p' on; SeI, k) 01^ Se?, dpyiXofXEv', "ri SJ x, iq Se?, h} ote, x) ecrov
X(6viv,
s'^'aii'slTKi ---fi S' uTEogsAilj,
dpyiAoT^S T15 Asyo^T [v
---
/)
5'
sAAEi^'ic, sit' aapyvfaia. ri<; Iqiv, e'iS' 3. T( Sii tote,
^iyirai. laid. C. 1
1,
p- 68, A
B
~
C.~
O'
y^Pf-''"')
opy''''(*i'!" I?'?';
8=")
'jAi6i;i5o)t8ff(v eivai, >^
61
(x<i tS^ Ser, fiv<S' oVe, fiiiS'rfi^ Si. Soke? yip
bmiiffCavssflaf, BBiAuireMdr^,
H''-) ipy^ofXEvos T, a'n hvxi a.a-jvTiKo^. T5 Ss, 7rpoTiiAaKii;o/Avov ccvix^'^cii, x} ts; diKSnu; irtfiof^i,
avSpaToSiSff. Ibid,
p. 68, C.~~
/
[lO
^A An
Hijlorical and Critical Account
plairance^ti-
keeps the Mean between F/^^?<;- Law''''''. The Natural LavJy is that, which is every
rv
which
officioufly leeks to pleaie every Bo- where equally in Force
j
and depends vot on the
dv
in
all Thino-s, and
without
Referve
^
and particularCo7!jiitntions
of
each State. The'T^o/itive,
the
Roi'.<^hiiefs
or ill Nature of thofe, who are is that, which extends only to Things
indiffe-
always
carpino- at, and
dcfpifing others
\
and rent
j
and fuch
as each 'Verfon might, he-
who care w(^ whom
they Ihock or offend,
fore
any Ejiablifloment concerning them, have re-
The Second '\s"'
Cavdoar or Sincerity, in gulated as helmnfelf
pould thinkfit; but which,
Thino-3 indifferent
'-,
that is to fay, fuch, where
after fuch Efahltfrnent, do no longer remain in-
an undifguis'd
Opennefs is not enjoin'd by the different.
Jrifotle hereupon ftarts the Objec-
Laws of
Fidelity or Juftice.
Jnjictle oppofes tion, ufually made by thofc, who inlift, that
to this Virtue,
on the one hand, fenfelefs,
and there is no fuch Thing as a real Law of Na-
ill-'rromided
BoMpng; and on the other, falfe ture^
becaufe, fay they, if there was, it would
Madefy
'
by which we pretend an Unwilling- be immutable
;
as we fee Fire has in all Coun-
nefs to 'own, or do endeavour to extenuate tries the fame natural Quality of burning. To
thofe o-ood Qualities, which
we are really pof- which our Philofopher makes this Anfwer
'-'
;
fefs'd of. The third, and lail of thefe \' ir- that perhaps amongft the Gods the Law of Na-
tues" is an
''''''
an eafy
and agreeable Humour ture may be abfolutely invariable : But that it
in Company, and
Meetings for
Mirth and Di- is otherwife among Men^ in reference to whom,
verfion.
To which are oppos'd, the Bif- as there are fome Things in the Law of .Na-
foonry
of falfe Wits; and the /ower Humour ture, which do not; fo there are others,
of fuch, as are fcandaliz'd at the moft harm- which do admit of fome Alteration. In or-
lefs Pleafantry ;
and take pet at the moil in- der to diilinguifli the laft Sort from Laws pure-
offenfive
Raillery. As for Juftice,
which ly pofitive; Jrifotle, by way of Illuftration,
is the Subject Matter of one intire Book of produces the following Inftances. 'Tis natu-
Jnjfotles Morals; Mr. '^ifendorf
having gi- rally, fays he, that we ufe the Right Hand
ven us
'"
a Summary of our Philofopher's better than the Left. But for Laws founded
Notions thereupon ; I ihall forbear faying any upon Compaft, and the Good of pmicular
Thing here upon that Head. But I muft not Communities ; 'tis with them, juft as 'tis with
foro-er to oblerve, that he diftinguifhes Law, the Meafures for Corn and Wine; which are
(the exad Obfervation \n hereof, is what con- found to be larger or fmaller, according to the
llitutes "Jujiice ;
as the Violation of it, on the different Places, and Interefts of thole, who
contrary does
Injujtice
;)
into Law properly trade in fuch Commodities. Thus the Forms of
and fwiply fo
caU'd\ and Law that is only Government, in different Countries, differ from
fuch
by
Jnalogy, or Parity of Reafon
fff
: each other
;
though at the fame Time there
The firft
which he calls Croil Lazv
;
is that is but one of 'em, which is conformable to
which takes
place amongft a Number of tree Nature; and that is, the Form, which beft
Perfons
who are Members of one and the ferves to promote the Good of every Civil
fame
Community; in which they live upon a Conimunity. In lliort, this Chapter alone is
Foot of
Equality, cither abfolutely fo call'd ; futhcient, to fhew, that Jrijhtle's Morality
or fuch,
according to a juft Rule of Propor- runs wholly upon the Duties of a Subjed;
tion. The other, which he calls the OEcono- and that it does not take in the Duties of
rnical or
Domeftick Law ; is the Power a Ma- Man in general, confider'd as fuch. Nor is
Iter of a Family has over his Children, or his there one lingle Word to be found concerning
Slaves ; and in fome Meafure over his Wife : the Law of Nature, as it takes place among
For, fays Jrifotle, this Law is not the fame the Subjefts of different States ; or fuch as are
with the Civil Law, becaufe the Mafter of a not Members of any Civil Community: And,
Family cannot
^^^
do any Injufice, properly by his Silence at Icaft, this Philofopher feems
fo call'd
;
to thofe who have their whole Depen- to favour that inhumane Opinion ofthe Greeks,
dance on him. Our
Philofopher di\ides his Ci- with refpedt to thofe, they were pleas'd to call
vil Law, into the Law
of
Nature
j
and pofaive Barbarians. But he feems plainly enough to
declare
'"
A',x=r ti i ij.lv u?iuXa>v, TpoffToiiiTixa? rS^v IvSo'^iov hvi, Xj fxii uTapx,ovTuy, k, fiSuiJuuy ii \nta.f%n' 6 ti. Eipojv avaT>.v, c,!v
yiai^ af:.^^iwv,& AjvofiSv" b'S" offa i"; i^ixiav ^
itxccnau-ji^v cuvTilvei. aAA>i5 yap av iii ravl'_a?er!i;' ahh' o; av n>iSfva; tois'tS S.aCpi-
povl-, x) sv Aiya x, iv &.'m kx^r^vi, r'Z rCjv "5i toist- Lvai.^Ibid. C. I
J,
p. 7
I
,
B, D.
_ ^ _^ ^ ^
'''''
'6( jxiw Sv Tw TAo<a) <,Tr'.fei.\?iOviiq, BioixoAo'x'i SoK^ffiu Lvai Xj (popTix^I
---01
SI iJ.y,r
au,ot ay hrrovrtq (xv)6i'; veAoTov, ts*? ts
hiYint
Z-jsxi?i-'vovlsr, 'Ay'fni xj cxA^po) Soxssiv Lvai' o'l Ss iVfieAi? Ta.iovlf?, 'EuTpToi vfocayofivov-rM,-
-
- "? XP'l?'
Ibid.
c.
14..
P'73>
A, B.
t"
ScePufenJorfJe Jure Natiir(^ Gentium, LW). I, c.y,5ed:.iz.
fff To riiTB/xevow i(;i ;^ tJ aT^tu? ZUaiov, x, rd rroMriviiv T.Ucuav. t5to It Uiv lt\ Mi\mv Sfa Tp8c t5 tiyai MyrapxEiav, lAEuStpMV
X "ffoiv, % xttT avaK-oyiav ^ xaT Bpi6,u.3
-"-
tJ AeffxoTixav SUaiov x, rb irccTfixbv, sj Tj;ul5 tb'tsk. aA^' oV^iov.
Lib. j", c. 10,
p. 87,
A,
b.
,,.,. -s ,
i
gSS 'Ou
V^p k'"
a?fK''a r:-.i; Tii avra (JtAb? J3 (xS^Aov -rfii
yvviutta. ic: lixr-m, v, -zfdq rixva x, xz..,iJ.arct. t.to yap t<ji Td
a.xovoaiKav
i.'xaiov.
iwd.
p. 87,
D, e.
..,-,,., ^, , . , ^ -
'**
Tb St co;,(TiB SixaiS, TO Hv
Ipvaimv l:r'' '^i 55, vsfiix^v. (pucixSi/ (xai-, ri -ravraXK t-)V^-j,>iv iX"" S-v:'.;xej, z, b to doxCtv,
t ,j,i,- voamJv II, 1$ a?X') M-s" is'Ss"
5i$lp6i outoij t, aAA'^j' iTccv Zi SiuTtt,. Sia(J)jpei.
Ibid. E.
of
the Science
of Morality.
6^
declare
*
in his 'politicks
;
all thofe Nations, refers, on the one
hand
'",
Conthieiicy and
that
have not enter'd into Treaties of Alliance, 'T'atience-^ on the
oth&r,
luconthieucy
and
'"
to be
in a State of War with one another. Impatience. On this
Occafion
he enters upon
And if we may take 'T>hitarch'?, Word
f
for it,
the Subjed of
"""
^Pleafure^
and
qPain
which
he advifed Jlexander to behave himfelf as a
arc the two grand Springs
of the
whole Move-
legal Prince tovvards the Greeks
;
and as a de- ment of the Soul, f'roni
thence
he
paflcs on
Ipotick Matter towards the Barbarians
;
to to Friendjhip
"''
;
which is, fays
he
either
a
regard the former, as his Friends, and Domef- Virtue '", or a Concomitant
of Virtue
and
is
ticks
j
but to treat the latter as
fo
many Beajis belides, a very nccejjary
Ingredient
to the Hat-
er Vegetables. Jrijiotle after this paffes on to pinefs
of Life. He defines it
^^^
a
mutual
iiitcUecfiial Virtue^ whofe Fundion has for its Benevolence^ whereby
'Perfons defire the
P'rc-
Objed
***
Truth: he divides it into five Kinds
j
fperity and
Happinefs
of
each other
-^
and on all
to wit, Science^ Art^ Prudence^ Intelligence^ and Occafions give reciprocal
Demonftrations
there"
Wifdom. By Science^ he underftands
'"
dcmonfira- of
It is founded,
continues he either
'
five Kno%vledge\ that is to fay, a diflind Per- upon Profit^ or Pkafure, or Virtue:
but 'tis
ception of neceffary Confequcnces, Howing the lafl: only that forms folid and perfedt
from Principles certainly true-^ or from Truths Friendfliip, which is only to be met with a-
eternally
fuch. Art.,
""""
is an habitual Know- mong good and virtuous Men ; while Intcrcft
ledge of the Rules, which right Reafon pre-
and Pleafure can at bell but produce ibmc flioht
fcribcs, tor the performing of any Operation^ Sort of Union amongft the Bad and Vicious.
or for the accomplilhing any Work, which Arifotle
*
divides Friend^jipy
as to its Sub-
the Agent was at Liberty to do, or leave
jeds, into that which Wbetween Equals^ and
undone. Prudence^ is the Habit of difcerning that which
fubfijis betzveen
thofe., whofe Condi"
'"
what is, or is not conducive towards the
tion is unequal
;
or, where there is fome ibrt
governing ourfelves according to right Rca- of Superiority in the one over the other; as,
Ion, in all the Affairs of Life. Intelligence
""%
between a Father^ and a Son:, the Agcd^ and
is the Knowledge
of thofe firft Principles, the Toung
; a Man and his_
Wif-'t a Sovereign^
which want not Demonftration ; becaufe they and his Subjefls^
&c. He then proceeds to
are felf-evident.
Wifdom
*''',
which is com-
the Refolution of divers Qucflions relating
i^o\xndiQdL oi Intelligence^ and Science'., conlills to . Frten
dfbip:, and
prefcribes Rules for the
in the Knowledge of the Principles and De- better Cultivation and Improvement of it.
monftrations of thofe Things, which are mofl
In the tenth and laft Book, he returns
*
excellent. I might here make feveral Obfcrva- to his Subject oi Pleafure and Pain:, w^hich
tions on thefe Duiiions; and the Method, in he handles a little more at large, than he had
^\i\Qh Arifhtle explains thofe Virtues, which done before. He concludes with that of ije^?-
he treats of under dillind: Heads. But this titude
;
which he divides into Contemplative
will require a larger Difcourfe; they who will
*
and PraBical.
The latter, which he
give thcmfelves the Trouble to examine into makes to confift in the Excrcife of thofe moral
the Matter, will ealily difcover the Defefts of Virtues., he had been treating of; is, in his
this Work. The Author proceeds to treat. Opinion, lefs excellent than the other : which
*"
in a more particular Manner, of the Cha- he grounds, amongft other Rcafons, upon
radtcrifticks, and feveral Functions of '?'}-?/^e;/c^. this; that' Contemplation, as it is accom-
After which he (peaks of thofe moral Habits, panied with a purer, and more folid Pleafure;
\vhich are imperled:; that is, of Difpoiitions fo has it but little Need of the borrow'd Aid
'"
towards Virtue, or Vice: and to thefe he of external Things; which are much more
requifitc
*
irs^uKoTEj S.p%i(i(iai, iJLi) Ot/ovrjv. tii (pusei Siy.aiov toxjIov Svltc riti To'A(iov. Lib. I, c. 8, p.
405-, C. See Mr. Noodl, lieUjurii Qr>
Tcfwrp, lib. I, c.
10, p. 66.
t
Ou
yaf ('AAj5avSp'>) lii; ' ApiqoTihvtr, cvviC6v>iivtv aula, toXc; (xtv "EAAi^ff/v viyfi.ovix.iii!:, t:?,- Ss E^pCap:;.; S<r'roTi?j.; ^fifxnrj
(KccfiC'/^i') li, rlv fi.iv, di; (piAav ly cixeiuv lirifXEAo'ifisvov, toT? St, a; tdot;
^
^Jlo?,- Tpoff^pffo'/xfvov, Scc. De Foilita.vel "virlttte AlexanJ,
p-f86, o'pu/c. Tom. J, Edit. H. Steph. Et Tom.
2, p. 329,
B, Ed. IVech. See alfo Strai. Geogr. Lib. i, in fin.
p. 66,
C,
D. Edit. Varis.
Eqoi
5>i
iiq u.Kvi'iiVii vj v^i^-vj Tui Ko'a^avai
%
a-7ro(pava<, tsvts tov apiOfx^i/' rS.-Slii
0'
t^l, Tfxvil)iTit;-i^fiii, ^pov/ici;, cs^ix, vSuq.
lib 6, C.3,
p. 98, D.
E^ aiccyx^t; apoc. t^i to sitic^vit^m. aiSiov apa vi (xsu apa tXi^iKXi sqiv iz,ii; aToJfiKTinij. Ibla. E,
99,
A.
TauTov av Jiv)
tjX'"1
'b
^''? y-''^"-
^^t^
aAvjSs? Toiviriiti:. t^i Si rtx'"' ^aja TEfi jsi/fo'ii/,
1^
ri T%i/aiC<v, x)9ap7v otm?. kv yiw^'
TM T( TKV EvSfXnf/EVMV H, i'Vaiy X/ flv) IVai' X, S\l V] UpXi) EK TM TOlbVTI, aWiS fj-ij iv Tw T01(J.S1/U. luid. C.
^,
p.
99,
C.
""
See Mr. Pifferulorf, Lib. i, Cap. 2, Seift.
4,
Not. i.
'
*"'
Ai'xli, voCv iivxt tZv a^yJiiM.
ibid. c. 6. p. loi
, D.
ttV
'h caSfia y z'. bTij..'|x>i, rj voC; t3v TifxiwriToiv T>j Sf-j<sii.
Ibid. C. 7, p. 102, C
7 Ibid. Cap.8, -/fij.
"'
Lib.
7,
Cap.i, p.iu, B,
e^/f^.
'"
'EyxpaTEia xj xap-citix.
Ibid. C. T , p.
I I I , B. & C.
2,
p.
Iir, C
"
'A.Kfc/.cia., xj fi.a.\xv.ia x) rpvipyf Ibid. C. I. p.
1 1 I. B. ' 8c C. 2,
p.
I I r, C.
""
Uhi (upra, Cap. 12,
&
fiq.
'"
Lib.
8, &
9.
}]y "Esri
yxf (li (piAi'a) afsryi
ti?,
^ ftl' a,ff:y,(;' eti
5',
a.vayx!ii6rx/'<iv hi; tJv P/ov. Lib. 8, c. 1, init. p. i 5 i, E.
zzz
Aer a(x ((p:'AS!;J I'jvoeiv aAAi^Aoi^, x, fSouAEfffai layixMa. fx^ AavGavovra?. Ibid. C. 2, in fin. p. 134, A.
Tp(a yap tqiv iiivi tv}; (fiA/a;, /ffapj9(xa Toti; (piAiiToT,,- it fxtv av 5ia tJ %pi^eni.!iv (piAaii'? (iAAiiAou;^
ov k& au
85
(f''
AoCsjv, it Si' ii'SovijV. TSAsut i iqh v) Tav aja^Sv $''*'<* xj "aT aoc-rtiv ofi.iimv' Sixpiivii ovj ii tou'twv
^i>^ix, a; cai ayoAol
tdiv. V] S' apETvj (xovifxov. ibid. c.
3, 4, p.
1
34,
B, C,
p. i
3
j-, B, C.
Eio) Ss o'uv a( 2ipv|fXEVai (piAi'ai Iv iffOTtfl/.
---
"ETEpov Se li;-! (fiAia; iS', t3 k.'!;9' u^Epox^iv'
''"^ -rarf) irpi; i!;Ji/,
^
oAa? Tpif-
CuTtpm xpj^ vitTpo, icvifit T xpo; ^I'vaiKa.
;^
xavTi ap%ovri xpj^ ap^ofXEvov. Ibid. C.8, p. 139'
'^'
5 Cap. Ij-.
^Cap.7, 8.
Oio'fxeSa T Je^v v]Scvv|v rrapaiJ-inix^at riH luSaifxovi'*' viSi'i^ti 55 -rttv koI' apTjv Ivspys/yvi li Kara rCjv $rav cfxiAoyoufx/i/oi; J-'.
ioxcT yovv
^ ffofpia e^uatdcji; v.Sova; Xiv Kaflapiomri x) roa pteii}).
ibid. C. 7, p.lSl, B. fl3?( S v a. ti?? Ik'J; Xopvfylxi li
f<xpsy >7
Jt' EAaxlov
5jc9ai rvj? viCwij;. C.8, p. 183, B.
AH^HiJidry^l
and Critical Account
66
requifite for the-
obtaining the other fort .of
Beatitude:
and for that the Pradice oi nwral
Virtues %
docs not at all comport
with the
Condition of the Gods^ who yet enjoy
per-
fedt Felicity.
This is the Summary of his ten
Books ot
Efhicks to Kicomachns.
Jrijiotle does
little
more than repeat, and extend
the fame
Prin-
ciples, in his two Books of grai/d
Morals]
and in his feven Books
addrcfs'd to
Endemiits.
His <Tc!itkks are founded upon very near the
fame Principles with thofe of ^lato-, but ap-
parently more ample,
methodical,
accurate,
and, in general,
better
proportion'd and
adapt-
ed to the
Conllitution of
humane Aflairs :
Not that they are
compleat
neither
^
for thefe
too have their
Defefts.
There are feveral
Matters handled in a very fuperficial and con-
fus'd Manner. This
Philofopher, as well as his
Mafter, feems to have had too much in \
ievv,
the Grecian Forms
of Government.
Nor
docs he feem to have jufl Ideas of the natural
Equality of Mankind^ and by fdme'of his
'
Expreffions, he gives Occalion to believe,
that he thought fome Men to be by Nature
delign'd for Slaves. He
'
is againft bringing
up Children that happen to be 6ofn with
any bodily Infirmity
j
and thinks, fliould the
Laws forbid the expofing Infants ; Women
ftould be made to mifcarry, when they find
themfelves with Child, after having had a cer-
tain Number of Children, anfwerable to what
the Intercft of the State requires; for, adds he,
when w^e fay that fuch a I'hing is lawful, or
unlawful, it ought to be underHood with rc-
fpedt to Beings, that have Life and Senfe.
Thus this vaft Genius of Nature, this Phi-
lofopher, for whom fuch Numbers have ib
great
aVeneration; proves to be grofly ignorant
of, and without any Scruple treads under Foot,
one of the mofl: evident Principles of the Law
of Nature.
IvSJ-iuoua^ Li/a.' Tpa^ei? U irolx; aTmr.aoM %ptiv av'.oU.
Pag. 183.
E.
c 16 p%07 EThe laft Words are fo read in the Paris Edition, form'd upon that o( Cufauhon: And this read ng is, in my Opi-
nion.' much better thaathit, which Ur.Per.zomu^ f.liows (in his Notes en El,a>, Var.
H>fl. 8, i,
p. 4.81,
Co!, ij rt yip okv.
r^ TO ,x^ S,^p,c!Mivov. i, Tvj k o%cu, kj t^?..
h'-
I could. were it now proper, eafily prove this.
SECT.
XXV.
/SRCE SILAS ", one of the Succeffors of
/
l^lato, founded a new Sed, call'd the Se-
condy or Middle Academy, to
diftinguilh
it from that of ^latc. His Doftrine
conlifted
*
in making a Doubt of every Thing; in ar-
guing both for, and againft all
Manner of
Quelfions,
without ever coming to any Deter-
mination \
and in maintaining, that there was
no one Thing
whatever that could be certainly^
known, or
comprehended.
So that, this Sort ot
Philofophy'^/'/'^/rc/;7/y
teiids^to the utter Stthver-
fon cf
all the Trccepts
cf
Morality: For, ivho-
e-oer
affirms^
that there is vothiug certain, and
that all Things are incomprehevjibley does at the
fame
Time declare it to be uncertain, ivhether
there be any fuch
Things as Virtue and Vice.
Cicero, who was an Academick,
but a moderate
one; has acknowledg'd
the Juftnefs
'
of this
Confequence, fpeaking
o^'Tyrrho, a Contempo-
rary of Arcefilas ;
and whofe Scepticifm, at the
Bottom, was the fame with the
'
incomprehenf"
biltty o( the: new
Acadcmicks.
Carneades
^
found-
ed the Third Academy;
"
which *, in ReaHty,
"
did not at all differ from the Second : For,
bating a few Softnings,
which ferv'd only to
amufc; he was, in the main, as zealous a
Defender of Incertainty,
as Arcefhis him-
fclf: He pretended to difcovcr it, even in
the molt evident
Notions;
infomuch, as
*
that we find him
muftenng up all his Subtil-
ties againft this Maxim : That Things equal
to, or the fame
ivith any one third Thing; are
equal to, or the fame
ivith one another.
He retain'd ', in the main, the whole Doc-
trine of Arcejilas
: But thro' Policy, and to
difarm his Adverfaries of
their moft plaufible
"
Topicks
u
<c
-
He flnuriili'd about the hundred and twentieth Olvmriad, three hundred Years before Jefus
Chrijl. See Dio^. Laert. Lib.
4,
""T^^^^^t^l^S^^S^^^I^^'^^''^^^
,.0.
Socrates /.,..,^^.
S,c c....Unre
c.,f..
amm, neque atlfinfwne efprobare. Cic. Academ.
^afl.
Lib. i, cap. 12.
'Mr Bav/fr's Dift. in the Text, and Remark (K,) p. 307 8c col.
2.
, ,
zr
/-
i-
McCf^HqJ^nt,
utad oSicimJenuone,. JJjjfn. Be
offic
Lib.., cap. 2.- Sec alfo the fame Argument made fc of
againft the
Academicks,
^fii.
.^'"Z?.
Lib.4, c. 8.
/"i .
'
'
faZy.u
See the ArticT^of Pynho, Rem. (A.j in Mr. Baylt-^ Dift p. 2429.
col 2.- ?< 4?,
Col .
.
/TllPhi^fopherwasofC,r,../he
came to Rome m the Year
ypp.
from the Building of that City
;
a hundred and fiftr
Y^JbeforrScW.
See PetJ. D. T.^Tom. 2, ,,4-
See D:og. Laert. Lib.4, Seft.6.,- e^-/?^
And Ed. C/.
p
256.
&X.
X,ff <=i_L,b.4.
cap.4r-
Et Bayle Dit. p.8.o,_ 8..,- Artie. C.rneade. the whole Art.c.e and Notes. 8c
'' fS^?|p?M;':Sr-^'^^C^^'[::^
^-^' .--
^i-ed at th. End OF the Vr^^on. Hyp., of
Sext.
Empiric. E3. H. Steph. Ann. 15-62, p.
220, 221. Et p.+p?,
D.- Ed. Genev. 1621
.
'
Ibid. p.
81 1,
Col.
1.
of
the Science
of Morality.
^7
"
Topicks for
Declamation, and Raillery
;
he
"
admitted fuch a Degree of Probability, as
"
mi^ht ferve to determine a prudent Man,
"
which Side of the Quellion to take, in all
*'
fuch Matters as concern'd the Adions of
"
Civil Life. He plainly faw, that without
"
this, he could never anfwcr the moll odious
"
Obieftions; nor clear his Principles from the
"
fcahdalous Charge, of bringing Men to a
"
molt Ihameful State of Inaction, and Quie-
'
tifm. All Things conlider'd, it amounts to
"
the fame Thing, to fay. That there is not
*'
anyfuch
Thing as Truth
'^
or. That there iSy
*'
but that U'e have no Rule to c/i/fingiti/h it from
"
Fal/hocd." Thus it is that Mr.' Bay/e is
pleas'd to exprels himfelf. I Ihail not give
myfclf the Trouble to examine; whether there
ever has in PaA been fuch a Perfon in the
World, as one ferioully perfuaded, that it is
impoihble for a Man certainly to dillinguilh,
for Inftance, whether he be alleep, or awake;
or to difcern a real Diiference between Madnefs
and found Senfe; or to be politively affur'd,
that there is a Sun, Moon, Earth, Men, and
Animals ; that the Whole is greater than any
of its Parts: And whether we may not fiy,
with the Author of the yfrt
rf
Thinking *;
that
the '-Pyrrhonijis are a Ssii oj Liars. But one
1 hing there is, which to me appears iucontejta-
hle:,viz. that this Spirit of univerfil Scepticifm,
utterly deitroys, and overturns the very Foun-
dations of all Religion, and Morality. Nor
do I know any Books more dangerous, for
Men to read, who ha\e not accullom'd them-
felves to an accurate Way of Thinking, and
difcerning between Truth and Fahhood; than
thofe, whole Authors make it their whole Buli-
nefs, to accumulate DifSculties againft the moft
evident Truths; without ever refolving them,
or preventing the fatal Impreifions thereof,
by a clear and rational Account, of what may
and ought to be held as certain, notwithitand-
ing fuch Difficulties; which, however conlide-
rable, yet can no way leifen, or hinder the Co-
gency of fuch diredt Proofs, as are really corr-
viniing. 'Tis true, the antient Scepticks
'
did
not indeed deny., but that a Man ought to con-
form to the Cujhins
of
his Country^ to praSlife
the Duties
of
Morality'., and in all
fuch Cafes
to be determined upon
'
probable Grounds'., with-
out infixing upon., or expelling., abfolute Certain-
ty. But then, as Mr. Bayle himfelf owns,
thy "
did., tutder
T'retence
of
only
oppofi/jg the
Reafons which the
Dogmattfts tirg'd
for the x-
i/lence
of
a Deity, in
Efjeci,
undermine the Doc^'
trine
itfelj. Their Way ivas,
fyji to premiCe
%
that as
Jor themfelves., they
pretended
not to he
fngiilar in any Thing-., but that
follo-juwg
the
comiUon
Courfe
of
Lije., they., zvithout
bang
ad-
diBed to any particular SeSt, held that
there
xere Gods., ivorjhipp'd 'em., and
afcrib'd to 'cm a
^Providence:, but jor the rafJj Reafonins^s
of the
Dogmatijfs about
thefe Matters.,
'tzv'as
ziihit
they could
notfubmit to: Whereupon
theyproduCd
their ObjeBions
;
ivhich were
afually
fich., as
did, by
difproving a divine
^Providence.,
at the
fame Time dejiroy the Exijfence
of
a Deity.
As
to Morality, there is no doubt to be made, but
'T^yrrho f taught, "that the Honefty
ana f Tur-
"
pitude,
Jultice and Injullice of humane Ac-
"
tions, were intirely
dependent upon humane
''
Laws, and Cuftom" Came ides ', after ha-
ving one Day made an admirable Harangue in
Praife of JuiHce; did the very next lliew, that
it was only a mere empty Name ; oppohng it
at the fame I'ime more ftrenuoully, than'^he
had before defended it. Thus however excel-
lent, thofe '
Maxims of Morality,
which the
Academick and 'P'yrrhonijl give out for Pre-
cepts, may be in themfelves; yet in their
Mouths, they can amount to no more, than
empty Sounds,
unprofitable Rules,
Propofitions
advanc'ci without any Foundadon,
and in f.at
Contradidlion to their own proper Principles
;
this too, notwithftanding
their
Conduit and
Demeanour be otherwife
never fo
regular, and
uniblameable.
According to Carnades,
the
chief End, orfupreme Good, of Man, confift-
ed in the Enjopneut
of
what he call'd ', the
natural principles-., tTlat is to fay,, in fatisfying
the^ Defu-es of Nature; without
giving one's
Iblf any Trouble or Concern about
Honour and
Virtue. The 'Tyrrhonijh
propos'd to them-
felves, by Means of their
Sufpenfion
of Jf-
fent
'
;
to keep the Mind in fuch a State of
Tranquillity, as Ihould
effedually prevent their
receiving any Unealinefs, on account of eiia-
blilh'd Opinions; and likewife in fuch a Stgte
of abfolute Indifferency for all Manner of
Things, as ihould keep them from fetting their
Hearts too much upon any one Objed ; or
troubling themfelves
too much about any Con-
tingencies whatfoever.
The firft Difrourfe, p.<>. See alfo the fixth Chapter of Part
4, p. 419, e^f. Ed.
Amfi. i<S8f
.
'
Mr. Buyle Did. Art. VjXrh'; Rem. (B,)
p. 2430, Col.i.
"
See U\og. Ixett. -b
9, Seft. 108
*
Mr. Biyle's Didt. Arric. Rufn,
Rem. (C,)
p. i(Sif, Col.i.
*
S xtas Fmpi'k. Vyrrhon. Hyfot.
Lib.
3
, cap.
1
,
Ink. & Ed. Fabric,
p. :i8.
'
H:ille, Dift. Art." Pjrr/^o. in the Text,
p. 2433.
*
'OuSsv yip 'i^xiM.i'j are KaA3i/. bte auxpJv, bVs STxaov, are ciSixov. k, ofxoi'u; Ixi i/1ui/j |U,^S^v en/ai T9 M^^ele^,
v6iJ.11 ii, 1^ s5f
T-avIa Toi<; aufpuTou; rrpir'siA Diog. Laert. lib.
9,
Seft.di. Et Ed. Col. p. 669
'
Lacixiit, h:[iit. Dhi/i. Lib. f,
cap. 14, n.3,
4. See the Subftance of his Reafons sgainfl: Virtue, reported, and confuted by
Mr. Pitfend. Lib. i, cap. 3,
Seft. 10.
n.
'
SeeC/ccr. ile Finib. Lib. 2, cap 18.
c^
feq.
See CuU.
p. J-p-
^'~ &'-
'
See Dhg.Laert.Uh.io, Sea.39,_40. Et Ed. Co/,
p. 732. & Lucnt.Uh. i. Verf.4;o,
& feq.
<"
D/c^. Z,.im. ibid. Seft.44.Et Ed. Co/.p yjj".
, r o t >. r r,
'
Intcrmundia. See CUer. dt Nat. Beer. Lib.i, cap.8.~ & T)av. i. I. 8c Lucret. Lib. j-, verf.147,
&
leqSc Lib.
3,
verf iS.
&fcq.
In the firft Book of Cicero, of the Nature of the Gods, cap.25-,_ &c. this ridiculous Notion of Epwurui's Gods 13
turn'd into Ridicule.
c v
11
t
/ Kos autem bentam vitam
>'
animi feciiritaie, ^
in omnium vacatione muncrum ponimus. Thefe are the Terms ot Velleius the
Xpicurean. whom Cicero intioduces; Lib. I , cap.
10. de N.it. Deor. See too cap.
30 Omnis enim per
fe
Divum naiura r.ecelfe
eft
immortali avnfumma
mm pace fruatur, Semotn ab noflris rebus, fejur.aaque longe ; Nam privata dotore omni, privata fericlis,
Iffa
fuiipolkns opibris, nihil inMga nofiri. Nee bene pro meritii capitiir, nee tangitur ird. Liicret .Uh.i ,
verf. 5-7.
(y/f*?. Ediz.Creech.
S Habet tnim venerationem iufir-m quulquid excellit. Velleius apiid Ciccr. de Nat. Deor. Lib. i, cap. 17-
*
Tliis was the Opinion of feveralof the Anticnts. ^iiamquatn lideo nonmiUis viJeri, Bpic-.mim, ne in opnjiontm Athemtnfmm
caderet, verbis reliqiiijfe Veos, re
fiifttdiffe.
Cicer. ibid. cap.
30.
i
ylpud Cicer. de Nat. Deor. Lib. I, c^ip.^^, fixe
ulrim.
. , ., , .
*
In tlie Extraa of the Bibl. Ckoif. Tom. i , p. 1 7
, thefe Words are afcrib'd to Vofidonius ;
but they are Cicero s, Lib.
1,
de T)ivi-
. cap.i7:_ Decs cnim ipfos
jocandi catija indiixit Epicurus perliicijoi,
(^
perfiabiles, &
habitantes, tanquam inter duos Uicos,
fie
inter duos mundos, propter vnetum ruinarum.
.
t
Be vita Epicuri, lib. 4., ccp. i,
& feq.
Mr. 5/. Evremond, who is not fufpefted to bear any ill Wil! towards Epicurus; judges
more fincerely and juOly of this Matter, in his EITay upon the Morality of Epicurus; Cbefore
the fifth Vcume of his Milceiianics,
Ed. .^OTy?r</. 1706.) where you may fee too his Opinion about E/)/Vr/'s P/fafwrf/.
*
Mr. BiT./c's Did. in the Text of Article, Epicure,
p. 1133.
'^
f-jpiy
on humane
Unde'fianMng, Book 2, chap. 21, Sedt.
f
j-, p. 1
7 i, Ed. Lond. iyo6.
' Mr tofi-,
ubi fupra,
p. 171.
"
Dio^. Lam. lib. 10, Sca.114, 1 z
^.
Ettd. Cohn. Aibir. p.-j:6,~
& d,
* Biil.
Umzerf. Tom. 10,
p.
283,"~
(^
/eq
An
Hijlorkal and Critical Account
70
''
Opinion,
Virtue is of no Eftimation hut for the
''
prefcnt Advantage it brings with it. As to
''
the Suppofition, that Vice may be rewarded,
**
and \irtue punifli'd; 'tis by no Means the
''
Suppofition of an ImpoffibiUty; 'tis what is
*'
aauallypradis'd throughout the greateft
Part
*'
of the World, Thus all the
Arguments
''
dra^vn from the prefcnc A-.dvantage,
which is
"
found in the Exercife of Virtue, are very
"
weak, efpecially if they Hand alone; and it
"
is highly probable, that had the Jthenutns
"
ofFer'd to have treated Epicurus^ as they
"
did Socrates
;
the firll would not have
"
thought it an Honour to die a Maryr tor
"
his Philofophy, as the fecond did; who,
"
when they would have hinder'd him from
"
Philofophizing, anfwer'd. That it was better
"
to obey God^ than Mau" We have even at
this Day fome of the Maxims of Epicurus
;
among which there is one, wherein that Philo-
fopher exprcfly fays. That
'
lujiiJHce is not
evil in itfeij\ and
if
ive ought to refrain from
doing ivrong to another, and jrom violating the
Laws ivhnh forbid it', 'tis purely thru' Fear
of
being difcoier'd^ and expos'd to 'T'nni/hri/ent '^
for,
adds he, tho' we may have efcap'd
a thou-
find
Times, we cannot always he ajjur'd, that,
what has been committed in the darkeji Corners,
and with the greateji 'Privacy, will not, before
we die, come to the Knowledge
of
the Minijlers
of
yujiice.
" ^
The fecond Defeft in the Mo-
"
rality of Epicurus is, that, in what Manner
"
foever that Philofopher liv'd towards the lat-
"
ter End of his Days ; he did not prohibit cer-
"
tainPleafures, which molt certainly do difturb
"
humane
Society; and would caufe infinite
"
Diforders, if all Men were of his Opinion.
Horace may, in Mx.^Dacier's Judgment, be
((
"
efteem'd a
"'
rigid Epicurean
;
and jet his
"
Writings are full of the Marks of a Licen-
"
tioufnels, which one would not care to call
"
by its true Kame : And if he exclaim'd a-
"
gamft Adultery, for Example, as he does
"
in his fecond Satyr ; 'twas only on account
"
of the Danger there was
'*
in being furpriz'd
*'
Y/ith a married Woman. This is likewife
"
conformable to the Maxims of his Mafter
;
"
who was againll the Enjoyment of that Plca-
"
fure
'", which brought with it n.ore Harm
"
than Good; as he alfo would have d-fpia'd
"
the Virtue, whi'. h would have brought upon
"
him too much trouble and Vexation."
;ivf:i:.vj
n=y^) r*P
<r>.^P4'ii.-
aS^^'" I' ^>^'- DffJ. !. UJ. I o, Scft 1^1 ~ Et Ed.
Co.or,.A!tol>r.
p.
Hoi
'^
Bio .U.iiverf uhi Upm. p. iS^
....
"
Remarki on Horace, Tom.
7, p 540, &
j'q. in the laft Edition, printed at P^r/j. Etp.571. Edit. </f Vnris, 1709.
**
This alfo was the Real'on why tpicur/isti.d, that me ought to ahfi.iin from
our Neighoour'i Wife : At ieaft if w- may pve
Cedit to Origen agamft C.elnu. Lib. 7.
P
37+.
cited by Mr. Mena-e, p.469.
Col. z. on Diog. Laer:. Lib. 10, Seft. i iS.
Et
p
7S1,
*
ToCrovyip fvV a.'a.ov, lik itic^i av'vi,' (S'a^i;) SiifX-oupv^f*
sW^a.- - D/o^. /.cr/. Sedl. i 54, ubilupra. OeSv Si, <va, JSci. iSiualov,
Pioyixav rimiv,
;;
v3^Jv iv Ii/Saifiovi'a, x.-xou ^xv^h^ aveTr/SixTOv, Tpovov)TixJ'./ y.k;M T2 k, tov Iv y.6^t>.'S fi^j tivai ,ifv tci x-A.m-Ka -o?-
$51-, Ibid. Sea.147. Etp.j-i5-,_j-i6~Ed. Cff/. Stt Cu. ile iUt. Deor. Lib.i, c.6, &c. wnere this whole Matter is treated of
at li'ge.
i_ I r I J T
^
'
The Words of Mr. Baylf, in his Com'mtiation ties Penfees diverfes, ci^.e^. See what he lays there, and a lo
p.
sio.
o' feq.
on
the Abfurdity of that Hypothefis of the Soul of the World
f
AoKsr Zi aulcT,-, t^v ,xiv (fucrj iivai^S? texvixSv, 65co /BaS.'Cov li; ylv<r.v, "xif l:r'
TvC:(xa TvpouV^g
y^
texvoj.Se,-. Dtog. Laert.
ubi fupra Seft If6. Et Ed. Col.
p. 5-34
Rem, (K.) There is another Fault too, in this Article, but chargeable upon the Printers of the Edition, he mace ufe of.
He criticifes,
p. 208, col. 2, upon Amiot, as if, in turning the Faflage of Eurifidei, reported by Plutarch, (Cono!. ad ApoU.
p.
no,
III, EA.M^cch. Et
1^1,^ Steph.) he had rendet'd the Words,
'o xafai za touitiJ 'A^CiipsM,-, by Amphiarims en tm
po'eme: but in the fine Edition of Genev. in Folio, 1604, by
J.
Stoer, I faw it was, as it fhould be, en un poe'te,
p. 25-1, A. And
'tis likely that the other cortcft Editions read fotoo. 'Tis fo Edit, ibid. An.
1627, p.2;-i, A.
'
AiS itj H'liJ-a. iivai (ri,v -ivxiiv,) k, fttla %i.)iaiav IriaEVuv, $6a?T>)v 5i J.vai. t-:\v Zi tuv oAojk, aip^apov,
!i<;
fxtfvi Itvai rxi Iv to?^
ZitOi; KAsai/S-.)? fitu ai/ Taaci; iTiSia.asi'eiv
(xlxf r^^q ixTrvpianscii;' XfuCiiTr' St, rcc^ vuv joifuti (iavaiv. Dio^. Laert. lib.
7,
Seft. I j-6,
.
1^7. Et Ed. Colon,
p. ^34.
*
See the thirteenth ot the Differtations I quoted laftj and Rem. (U) on the Artie, of
ChryfippHSy in Mr. Bayle's Dift.
p. oir.
Coll, &c.
'
Mr. Bay/e, ibid.
p. 92
f,
in the Text. See the fecond Diffcrtation of Mr. BW</fK/, de erroriCits Stokorum, ScEk.^,
9, 10,
amongft his AnaleBa
Hifi.
Vhilofoph. which were publifhed in 1705. It will not be amifs to join the three other Difiertations of
that
ingenious Man on the fame Subjeft, to what I have here laid, on the Principles and Errours of the Stoicks.
" Thofe Books which remain of the Stacks, are full of Sentences on that Subjeft, carried fometiraes even to a very hich
Degre-of Piefumption.
"^
"
nfir' 6 Z-.ivt)v
T5A'iT, Ti ofiDAoyoufisvMi Ti5(J)i/V< l'*)"!/. T/itg. Laert. ubi fupra, Sedf. S7, Etp.490, Ed. Co'.Cit/n
ergo
hoc jit extremum, congruenter nature con-uementerque iivere, 8cc. Cicero, under the Name of Cato, the Stoick, de Fin. ion. A>
tnal.
Lib.?, Cap. 7
"
"Oxp ^Vi xal' i;lv)i' E^". ayei yap -rpjj rxvlviv -/ifiS,; v| cpuaii;. D:og, Laert, ibid. 8661.87.
' HiiAiv S iffov Iq-i' ri y.ccl apsTijv ?!) tio xxl' ifi.T!iifia,J raiv ^isst (rupi,,Saivo/1aii 'C!\'j' w; (^VjH' YifxicnT^ Iv tw irpdrta Ttf)TiKaM. aiiv)
yaf
iic^v at >i(XTfpai (fvaa; ri?; Th oAou. Sioxep TA' yiVelai rh axoPiu'dai-; t^
(pvuei tvji/. J-rep Iq-! xaT a.frijv kulov Ki xcc>x tvjv tmx
oAajv, c)u?iv Ivepyavla? cav axayopEUEiv uui^ev
i6f).<^ 6 K0IV05, oWep l:jiu 6 c'pSi,; Aoy' 5ja Tavlcau Ipxo'^xEv-, a.v]b.; iv ra &{i ttcAmc-
fjto'w tb'tu) t^; twv o'vitov SiiiKyjffe trj<; Svli. bivsu
5'
oiulj tbto r^v tb luSii/xov- afiT/jV, k, 'ivfoiav /3ia, oruv vav^.ct afo.r'yjra.i KcP.ci ruv
ffUfilpcoviav TB Tap' txx^'a lxi(j.ov<Sf pj; Ti^v tb oAB Sioixitou /SaAilffiv. /xsu bv Aioysvs)? tjA* (pvin'l ^jiloD;, ri luAoyi^tTu i\i ryj txd
Kii'ii (pu'ffiv IxAoyv;.
ApyJ^yit-'-' Ss' to irai/la tk xa^xov^a Ix^eAbi/ra tyjv. (pvdiv Si Xpuo-iirx- (litv l?Ka'i>>j a^toAouSuj; Sei'
Zpfv, ti^u
re Kciv>iv, Xj /?,'; Tijv a'jOp'j'-zi.-.iv. 6_5i K,Aiiv9^)5 Tvjv KoivJji/ (xovvjv exSe'j^irai <pu<"Vj
>i
axoAouScju Set, iSxirt Ss 1^ T)j ditl fxlpou^. Diog.
Laert. ubi fupra, Seft.S?,^"
88,
~"
89. p.490,
491.
Edit. Col.
3>u3-i T ri V.xcwiv e ivxt,
j^ ft^ 6j(Te(, 105 Xj vSfjtov z, t5v dp6dii Aoyov, xaix tfyiei
Xpufi'S'it^ iv tiS TpJ hkAb. ioxet Ss aulc?^- (xiiT^ z>,j
SirtlpBviav a^iVaffSai (piAotrotf/.-*?" c'tsi tm Ao'ya TBTaj -xpoAEi^eiu oAo ihv /5iov, lo^ ly lioseiSiiivi'Q' (pijriv Iv roj^ TpoTpcTiixcjj. D/Vj. Laert.
ubi fupra. Scff. 128, 129, Et Ed. Colon, p.^ij^, 5-16.
'
Mundum autem [Stoici] cenjent regi numme Deorum, eumque
ejfe (juitfi comrrmnem urhem
(^
civitatem Hominiim, & Deo-
rum
i
1 tKumqitemque noftn'im ejus mundi
ejfe partem : ex quo illud naturd confeqai, ut commuiem utditatem riojlra ameponamus,
Cato apud Cicer. de Fin. hon. 0> mul. Lib.
j,
cap. 19
,
'
KoivwviKo? yip ^(icii y.j Tfax-rix6i,
Wj. Laert. ubi fjpra, Seft. >2^,-_ Et Ed. Col. 'p.fll.
Ti- S'
."m.o ("apxEl) tt ^iv-i (isv c'ituv, k, ljif-<ii.!rv a-AfM-no-jc %\ iu TO'tTv. M. Anton'm. Lib.
J",
Seft^?; But I fTiall not report
at their full Length the Quotations of Gataker. wit'ont mjking fuch Correftions and Additions as I ftiall judge expedient. See
alfo a
beautiful Paffage in Sinecu, on the true Worlhip of God. Epift.97, p. 3)-+; wliichi have cited, iuftni. Lib. 2, c.4,Se(ft.3,
Not. r. ^
MArc.Antonm. Lib.
6,
Seft. 1
^
**
Kat TcvE ffufxC^spf', ?T
^'im (pipei.
**
T'
lP
aprxoSiiirepov ;
M. Anton, lib.
7,
Seift.
f7
"
Si.(x$Epe< ixiqx, i (pjpE. Ixi^iJ v] tSv oAwv (fJuiri;.
Idem. Lib. 10, Sea.
20.
"
Otiimhm tji--- Dtum, quo nuHore cur.cin frortmum, jnie murmurarwne tomitari. Mains miles ejl, qui Imperatorem gftnem
fequitur. Stnec. Epift. 107, p.
402, Edit. Cionov. See the Prayer of Cleemthus, which Semca. there trar.flates into L/m Vcrfe,
related by Efihtiiu. in his Manual, Chap.77.
or the hft but two, Ed Btrhl.md in the Diprt. AnUn.Uh.i,Cap.tT, p.221.
& 23
p.iyi
_
Lib.3,cap.22, &
321. &.Lib.4. cap 4,_p.3S6.
t -/r i 'k r
""
'Hv av yiiixv li tu'-iv sy%'ifiisy)c,
---
iJ-vfiMig a.-zo^a\/htJ.ai Tforefov, vj raulv^v !yxa''a!itt-i''ji.
Epicl. Dijjert. Lib.
3 ,
Cap.
24,
p.
24.2.- Senates had fiid the fame Thing in the Apol. of PUto, p. 28._ 29
Edit. H. Steph. & p. 363,
F. Ed, Lugdun.
"
"OuTa It'o xa,5>'a? (pAJr? riz i.flpcJTou,-.
{"t pir
effet) M. Anton, lib.
7, Scift 13
"
'A;iAa X y.i{^(c^ai fau'Sv In.)
Mem, Lib.p, Seft.
3
'
ti
-j
tt Ka< a.vix<:^s.i &.<?'iv. Idem, Lib.
f,
Seft
33
fir c ^ i.
-1
r.
1> Se ile.'l'Jp,
J'lm dat, cb.itu,
tfi.
Senec. di Bcnef. Lib. 2, cap. 6. See Mam Antonm. Lib.j", Sedt.fi. Wc hnd the -ke Fr-
^''^'z^u'^^''lmn,bfs]aJ!'T'e]).ori 'tefle,
movenmur. Cicero ie
fin.
Lib.2, cap. ^6.~. The PafTage of M. Ant. which Gataktr citei
kre taken
from Lib. 3,
Seft.^-, has anothei Senfc, according to which he himfelf explains it in his Commemary,p. loi. col. i,
lin.rV See rather Ro'k 9,
Seft. 29, wi'h the Notc_if that Commentator, p. 340,
col. I. lin.
14,
&d.
'
cpj.
pluta'ch de amore prol'n Ton 2, p-49)"' ^- Ed. Ftancojurt.
**
.SceiW. .rfnro'ii". Lib,9.
infirc,
p.
13
, , ^ .
t4 . t ;u >: e/i
'"
'E-.; TfpT V,
Tfoiravairaua,
tu Urhmfaliai
KO;VOT>Ki?(*^TaE.^.'<v iz)Tp2?iVK0ivo)i'i;<v,v, cri/v(iv;,nv, pj^u.
lacm. l.lb.0, i.a. 7,
'
&Lib.f,Sea.6;"
tiai^'iiJ.x aitoh.iniiv,
IJcm, L;b. 12,
a
a
u
u
a
a
u
u
u
u
u
u
u
u
u
u
ii
((
of
the Science
of MoRALiTr.'
73
and principal Care; fevcral particular
Philofophers of that Sed have
ill: excellent lart oi us; been charg'd with;
I'hcle
arc pcrfonal F"aults,
'
-^
TT
.
***
_:_
and extend not to their
Dodrincs
:
the
'"
Soul our firfl
"
to
honour ir, as the mo
"
to have nothing lb much at Heart
""',
or in ana extend not to their
Dodrincs: and I lliall
"
lb great Elkem, as Virtue and Honefty; ne- here, as l do every where elfe,
only conlider
"
ver to fuller ourlelves to fvvcrvcfrom ourDu- the Opinions, as they are purely
and fimply in
"
ty
'".,
as tar as we can attain to the
Knovy-
"
ledge of it; either through theDelire of Life,
"
much lefs of any other 1 hing ;
""'"
or through
*'
the Fear and Dread of lorments or Death,
"
much lefs of any Damage or Lofs whatfocver."^
'1
his is the beautiful Side of the Morality of
the Stoicks; and it mult be further acknow-
Icdg'd, to their Praife, that they ftopp'd not at
general Notions; and indeterminate unapply'd
themklves. Ihe idea then, which the i^toicks
torm'd of Virtue, how magnificent
foever it
may at firfl appear; is, in lomc Refpeds, if
rightly coniider'd, not altogether julf, or com-
pleat
;
not intirely founded on its true Prin-
ciples
;
nor exen}pt from Errour. Virtue, fay
they,
is the fovereign Good ; nor is there any
other Good befides Virtue : The Sage is ftill
happy, tho' in the Midfl: of the moll cruel
Maxima: But on the contrary, to judge of the Torments. But, belides that Virtue is only the
Matter only by thofe few Writings, we have
''
efficient Caufe of Happinefs, and not Hap-
Icft us by the three Perfons above mention'd, pinefs itfelf ; they laid no Foundation, in the
with theFragments of others, and the Writings Hopes of another Life, for the Recompcnce
of thofs who have reafon'd upon their Princi- and Confolation of Virtue: nor indeed could
pies; it may be truly affirm'd, that of all the they, as not properly acknowledging the Im-
Philolophcrs of Antiquity, they are the Men, mortality of the Soul ; or at leail
'"
fpeaking
w ho ha\ e gone the farthell into the Particulars of it but in a very confus'd and ambiguous
of Morality; and have the bell appl) 'd its ge- Manner. Inlbmuch, that Brutus^ who was a
neral Preceprs to the feveral States of Life; and Stoic
k,
fecms
"""
not to have been fo much out,
the diHerent Exigences of humane Affairs, as fome would imagine, in thofe dying W^ords
Jrijh ox Chios, who thought it fufficient :o el- of his
'''''
: Wretched Virtue, hciv have I beeit
tablilh ""' in general the Nature of true Wif- deluded in thy Service'. I thought thee a real
dom; and to Ihevv wherein the fovereign Hap- Good, .and as
fuch have I always devoted
myfelf
pinefs ot Man conlills; without entering into to th^s'j but thou^ alas I art only an empty
any particular Explication of the Duties be- Name, a Fantom, an ahjeci Slave expos'd to the
tween Husbands and Wives; Parents and Chil- Inpilts
of
Fortune. And in truth, if the Idea
dren; Mailers and Servants: This Philofopher, of Rewards and Punilhments in another Life,
1%',-'--
' '
*'' u.c...:.,. u ::_.j
.. .u_ T, ^. r.r. . .y
/,who departed a little from the Sentiments^ be not join'd to the Pradice of Virtue;
"
both
of his Mailer Zeno, form'd indeed a kind of " Virtue and Innocence may be rank'd >
in
Seft, but it did not lall long: And Seneca has
prov'd againll him, that ijarticular Precepts,
as well as Maxims, or moral Retledlions couch'd
in ihort lively Sentences ; are extremely ufetul.
j4riJio laid, it was the proper Bufinefs of Peda-
gogues, and
'
Nurfes, and therefore ought to
be left wholly to them. A fine Reafon indeed,
anfvvers
f^"
Seneca: as
if
the Sage was not the
^''edugnguc
of
Mankind
.' "
Cbryfppus even con-
"
defcended to give fhort
'"
Precepts about
"
the Education of Children: which as it is a
the Number of thofe Things, on ^vhich So"
"
lomon has pronounc'd his definitive Sentence:
"
Vanity
of
Vanities, all is Vanity ! To rely
upon Innocence, would be to lean on a bro-
ken Reed; which will not fail to pierce the
Hand, that rells upon it. God, as he is
the Difpofer of Events, the grand Almoner
both of good and bad Succefs; has here on
Earth, made Virtue and Innocence no lefs
fubjed to his general Laws; than Health and
Riches." Belides, to fay that a Man who
Thing
in itfelf of no fmall Importance to fulfers for a good Caufe, is really happy, altho'
"
Mankind; fo this Condefcenlionof CV^rj^/zp/ja^
"_ cannot
but deferve Commendation." But ha-
ving done
Jullice to the Stoicks, as to what we
find^ laudable; let us now fee what there is to
be found
in that Sedl which may be juftly ef-
teem'd
blameable. I have nothing to fay, as to
the Vanit}-, Hypocril}-, and bad Lives,
TiJK IV ffoi To Kf-iTicov -riaa. Idem. Lib,
J",
Sel.2i.
he hath no Reward to exped: after Death; is
to advance a Propofition equally contrary
to^ right Reafon, and to every Sentiment
of Nature. But this is not the only Thing
on which the S.oicks form'd
extravagant:
and chimerical Ideas. Every one knows,
what
'^^'^
a Jell the World has made of their
Sage
;
See Lib. 2, Sea. 15.
that
*'*
liem,
Lib.3, Sea
6.
Lib.6. Sc<a. i6.
"'
idem,
Lib.S.Seft.ii. Lib.7, Seft. if. Lib.S, Sefl.
f
.
"""
Idem, Lib.
7, Sea.44.. ex PUtou. Apot. See above, Lett, (mm.)
""
'iTido Ch\us
-
' Moralem, qiiam foUm reliquerat, c.rcumcidit. Nam eum locum, qui monitiones conttnet, fitfluUt; (^ VdJa-
gfgi eji dixit
.^
r.on Vhilofophi: tanqttam quidqiiam aiiud
fit
Jftpieiis. quam hum irii generis PiUigDgus '.
Senec. Epili.Sg', p.i9<5.
Rd.
Gronov. Earn partem I'hUofipIii^, qut dat propria cmqite perjtnt. pmcefita, nee in univerfum componit homir.em, jed murifo fnader, qiio-
niodo e gerat edverfus tixorim: putfi, qiiomodo educe: uberor, domino., quomodo jervos regat
;
Arijio StotcHs, levem exiflimu,
(^ qui non defrendat in p'ffm ufqiie: at illam, tun habentein precepta, piurimum ait
proficere ; ipfaqite decret* PhiiofophU, co'iflitu-
tionem
eff' fummi honi
,
qu. M qui bene intellexit
c?
didicit, quid in qiiaque re fetcienditm jit, jM ip/e pracepit. Idem, EpilL94,it
the Heg nning,
p.
327. Ed. Gronov.
See textus Empiririu, adv. Mmhem. Lib.7, apud Metiag. ad Diog, Laert. Seft.
160, p. 33
i. Col. i.
Iffl^
Ubi lupra, Epilt.89, p.ipfi, Ed. Gronov.
ii3
Sce_Mr. Bayle'i D;aionary, Artie. Chryfipt- Rem. (R,~) p. 929,
Col. 2.
& ^(intil. Injl. Or.i:. lib. i., c. I,
p. tf._
C-J.
Ti, o. CIO,
p.
61. c.li,p.6iS, E'.iit.O.Vfl.
^ec Ciccr. ?.irj.dex i, 2. Diog. Laert. S^ifir.iiS."^ and the Books oi Cicero, de Fin.bon. nial. or
^'"i/l- Tnfcitl.
>ec what lias been laid before, concerning the PrincipJes of the Morality of Epicurus, SeH.
16, p. 67,
col. i.
'"
Ibid. Rem (B '. See rluturch, in his Life of Br.-(f;. And de Sitperflitione, inic. And Dio. lib.4.7, fub fin.
Plnttfuh^ToWi^
joo3. B
&. d.Toni.2,
p. 16,", A, Edir. Franco/. Dw. Caj.
p. 40 (5, B. Ed. H. Steph.
^
111 yiT.Bayle, ubi fjpri, Rem./-C,j
p.715, C0I.2.
zzs
s-e utrace, Lib. i, Sat.
3,
Verf.uj-j
& feq.
Cicer. Orat. fro Mitrena, cap.
2^,
&f'%.
Jn
HiJioricaJ
and
Critical
Jccount
74
Sage;
'
whom,
on the one
jliand, they devefe-
ed of
even the ^010^ 'innocent
and mode-
rate
Paffions,
nay, in a Manner,
of Hu-
manity iti'elf;
whilll on the
other, they
made him to vie
Hiippinefs
with the very Gods
themfehes.
They held all
iins to be
equal.
They faid, that,
Virtue excepted,
all other
Things were indiiterent ';
that is to fay, nei-
ther good nor bad; but of thefe imiiffirent
Things^ fome were
eUgible^ and others
rejccfaik,
Mr. and
Madam
Dacier have
undertaken
the
Apology of the true Stoicks, on all thcfc
Heads.
'"
"
If thefe Philofophers,
fay they,
"
have mix'd fomething of Auilerity
\^ith the
Sentiments
of their Mafter
Socrates
;
'twas
"
not fo much the Eftcdl of a Savage and mo-
rofe
Difpofition ; but rather an Expedient,
which
Prudence
fuggefted to them
:
for be-
"
ing well acquainted with the natural Imbe-
*'
cillity, and Supinenefs of Mankind; they
"
have thought lit, in pref^^ribing Rules of
*'
Duty, to prefs them to a
greater Degree of
"
Pertedion, than they are capable of; that fo
*'
by exerting their utmoil Endeavours to come
"
up to their Precepts, they might at leall
"
come to fix in a State of
Mediocrity; as
"
Trees which Hand bent one Way are fet
"
right by a contrary Flexure.
Thus when
"
Ze//o^ for Example, faid, that all Crimes were
"
equal; his Intent was to reclaim
Men from
an unhappy
Opinion, which they are but too
*'
apt to give into;
that provided
they keep
Precept;
maintains, that there is no Ditfe-
*'
rence between the Stealing of Cabbages out
*'
of a Garden, and the committing crt Sacri-
"
lege;
between the cutting one's Father's
"
Throat, and the killing of a Capon; which
*'
two Adions he will have to defervc one and
"
the fame
Punilhment : This indeed is fo far
*'
from retraining;
that it rather encourages
"
and proiupts Men to the Gommiffion of the
*'
greateft Enormities.
When Ze/zo faid, that
*^
the Sage ought to be void of CompalTion;
"
his Aim was to ihew, that the Sage does not
' "
confine
hisBeneficencetothofc
Succours alone,
to Providence,
exped
every 1 hing imme-
"
diately from
Go^/;
without ever leeung to
himfelf; fo this
Precept,
that Men ought to
rely on themfehes
for all
Things, was in Et-
3
:
p.
j-i2,-r
&Jeq.
5" 10.
See Ci'^r Aca^.
Im omr.ir.o
ne^fj-
genda
pofita
ilico n. ^ ,, ^.. -, .- ,
J ,
^ ,
- , ,
26.~ Scealfo, Lib. 3. Cap.
17."
&
I^'og- Laert.THi fupra, ScS. 102,
&
M-
4
Preface to the Tr.:infiation of the Refleaions of Afarr. ^woK/n.
A
3 , p.
2.
j AflJo^. P,,^rv v
?
The Reafons. for Example, that Ctcero brings to cftablidi the Equality of ciirainal, as well as of good Adions, Pa^'^^'j^^^^'
of
the Science
^/
Mo
r a L i T r.
pecially
wheii he is treating of Morality, all
Ibch
Maxims as are ambiguous, or fubjc(ft to
Milconllrudtion. So that, even fuppoling that
thefe
Maxims in Queltion are capable of the
Mitigations contended for bj thofe, who are
fo bent upon jultifying the Antients, what 'ere
it coll; yet we cannot fairly avoid cenihring
the Paradoxes of the Stoicks\ together with
their vain Subtleties,
"
their concife and rough
Stile, their Arfedation of new coin'd Words,
their frequent Logomachies, the Contradic-
tions
'
charg'd upon 'em, and their Opinion as
to obfccne I'erms; whKh
s
they inlift, may be
made ufe of without any Manner of Scruple.
Nor is this laft Particular to be much wonder'd
at in Men who contend, as the Siotcks do, that
75
all Women
ought to be had in common a-
mong the Sages.
There
were alfo fome among
them, who_
maintain'd,
that
'
the Cyincks
Way of hying was the
(Jjortcji
Cut to Virtue.
Uoryjippus
taught, that
there
was no Harm
incommittmg
laceit with one's
Father,
Mother,
Son, Daughter,
''
Brother, or Sifter
; or in feed-
ing upon human Carcaaes. What the
'^
Stoicks
faid about the Love of beautiful Boys
; is at
Icaft liable to very odd ConftruCtions. In fine,
thefe Philofophcrs
believ'd, that their Sage
might abfolutely difpofe
''
of his own Life,
and put an End to it whenever he thought lit;
and this Opinion, as falfe and dangerous as it
is, was, as is univerfally agreed, the Senfe of
the whole Scd.
leave us little Room to doubt, but that \.]\e.Stoicks underflood this according to the Letter. See the Reafon given by Hh".Zaert
.
lib.
7, c. 1 10.
And
p.
5-10, Edit. Col. and reported by Mr. Pufendorf, Lib. i, Cap 8, Seft. i , n. i.
^
Stoiconim aJftricitor
efi
oratio, dtqiiandoque contmBior, qu^m aui-es populi requiriint. Cicer. m Bruto, Cap. ? i. unmaft/aa
ex omiiaui ehiiofophis Stoid plurima "ovui.erHnt. Zeno qiioque eortim pnnceps, non lam rerum invemoi-
ftii:, qu.tm noro urn verbo-
rum. Idem, Ue Fmib. Lib.3. Cap.2. Nova verbn fingunt; iteferunt itjitata:
piingiint, qiiaji aculeu, saterroiMiiiHi:ut:i an-
glints: quibus ctiam qui ad/enliuntiir, nihil commutantur ammo, et iiiiein abeunt, qui venerar.t : ra enim (ortaffe vera certi travel
i.oiiita rraBantiir. Ht d'bint.fedaliqiianto rjiimtius. Ibid. Lib. 4, Cap. 3.
'
'
*
' i-ee_Plntarchy in his Treatifes, de repugriiim'tis Stoicorum, and, de commtinibus mtitiis contra Stoicos.
'O co^hq li.'6i'(5p;^(ii)v e5>). Ctcer. Ep. ad Famil. ]ih.^, Ep. 2i See the whole Letter.
Afisxit Si uvroTc, xat koiv; itvai to.; yvvaixa^ cT'e"" Tapci. tois ao^oT^. Dog Laett.
. I
j
I.
lib. 7. p.ri7.
Ed. Colofl.
Eivai yap riv Kw^ofi-i-j fft'vTofiov It' ape-T-ijv cSo'v I id. .
III.
p. fn,
Ed. Colon.
Ev Si Tio Tsp) xoAiTi.-j5. xa, |xv)rpaffi Ae'vei avvifxea^ai, ual ivyaTfiasi, kz) uoTs xai ra? aioOavo'i/ras xarccBieiv KE/tuav;
DfcLam. ibid.
. 1S8.
p.
ff6.~
Ed. Colon.
"
"^ee Sexr. Empir. Pyrrh. hypnth. Lib.
3, c.14, p. if?, A
Et Ed. F.ibric.
p.
178.
'3
'>ee Diog. Uert
. up
p fj6,~
Ed. Colon. . rjic. Tui.
^u^fi. Lib. 4. 0.33," 34.
EWo'yaj TE (paffiv la?iu txvrbv ts Si'y tov cnSf'av, xiti uxjp Tarp^Sj; xxi urtip 4)i'aiov. xa.v |, q-iK-yipiTspx, ysv-^rru a.\y^'S6vi., vj tv)-'
P!tff(fiv, V) vdffoii; cui&Toiq. Diog. Laert ubi fuprk, .
i?o. Ed. Colon,
p. ^-17. See Cic. de Finib. Lib.
3, c.
18.
& M. Amc-
n:n. Lib.
3, .
i.
ibinue Gataker, p. S5, col. 1, lin. j-j, & d.
' '
-'
SECT. XXVIIL
FTER Epicairus and Zetio^ we find not,
among the fucceediug Phiiofophers, any,
who let up new Schemes of Morality.
Each Man betook himfelf to that Se6t, where
he found what moft fuited his own private Sen-
timents. The Roma/js, who had their Philo-
fophy, as well as the reft of the Sciences, from
the Greeks
;
took this Courfe. In the Reign
of Jugiiftus, a Philofopher oi Alexandria^ cal-
led
'
^otamo^ introduc'd a Manner of Philofo-
phizing, which they called Ecletltck'^ becaufe
It conlifted in coUeding from ail the Tenents
of the preceding Philolophers, fuch as appear'd
moft reafonable; out of which they form'd,
each Man his own Sjftem of Philolbphy. G-
cero^ who, as I faid before, was a moderate
Jcademick
;
does for the moft Part purfue this
Method in his Book of Ojficcs ;
*
where he is
fometimes a Stoick-^ fometimcs a 'T'eripateticL
That excellent Work, fo well known
to the
World, is without Difpute the beft Treatife
of Morality, that all Antiquity has furnilh'd.
us with
;
the moft regular, the moft methodical
;
and wh;:t does the nearcft of any come
up to
a full and exait Syftem of
Morality. I Hiy,
what comes the iiearcjl : For he Would be
much out, who Ihould imagine it to contain
a
'
Compleat Body
of
Morality^
fuch as defcends
to the utniojl Degree of^articularity^ and where
every Thing is digefted into the very beft Or-
der, and Method poffible. Many Things are
there wanting, which naturally come within the
Plan of that Science; and, for the Generality,
the Topicks he there goes upon, are but very
faperficially handled; as might be ealily made
appear. We there alfo find fome
"*
Decilions
too
nuiv. Diog. Laert. Prooem. Seft. 11,
p. 14
See M'nage thereupon p. u, col. 2.
Sed tamen
oftra leges, nor. multum a. Peripateticis
diffidentiat quo mm utrumque, et Stoici, et Peripatetici,
ejfe
volumus. De
Offc.
Lib.
I.
Cap. I. V. Gr-TV. i. I.
p. 4,
col. i, Scd. 'Tis thus we ojght to read that PafTige, partly according to the Conjeflureof
Crono-mi the Fathtr, and Gr^vim
; and partly according to Mr. Le Clerc; See Ars Crilica, Fait.
3,
Sea. i. Cap. 16, xNum. 12,
Tom.
2, p. 1S6. Edit. id.
J
c 3 3
>
r
' This is wha- his laft Tianflator into French, in his Preface, pretends to aiTerf.
You mav iee Ryamnlr. fr^<-h K,,ri, io ^l, tv. ._ i ivr l .;._ ._i ',
Tranllation of Pff/Wor/. See there thcIndeX
^ You may lie Examples enough, both in the Text, and Notts ot Mr.Baroeyrac's
or Authors.
-'
Jn Hiftorical
and Critical Account
too
ricrid ; or
fuch as plainly
ihew, that
Cicero
v;as
not
thoroughly
acqiminted
with the true
Trinciples,
on
which tfte
Rclolution
of fome
certain
Cafes
depends.
'Tis
great Pity his
Trcatife of
Government
is loft;
ot which the
few
Fragments
remaining
give us a very noble
Idea.
His
Difcourfe
of
La'-^^s,
which we yet
have,
though
imperfeca;
contains many ex-
cellent
Things.
Cicero
there
particularly ap-
plies
himfelf
to prove at large,
that there is a
natural
Law,
independent
ot any ' humane In-
ftitutioni
and
which
deriv.&s
its obligatory
Force
from the
Will of
God.
This he proves
/
to be the
Foundation
of all juft and realon-
able Laws.
He
lliews
the
Uletulnefs ot Ke-
lio-ion
^
in
civil
Societies.
He follows the
erand
Principle
of the
Stokks, that Man is
born for
Society ;
and from
thence deduces
all the
reciprocal
Duties of Mankmd. And
though
he
acknowledges
it ueceflary to admit
all this,
for one who
intends to build upon
vvell-chofen
and
well-conneded
Principles
S
"
yet he
expcfts not that all the World will
"
approve of
them; he
promifes
himfelf only
tlie
Approbation
of the antient
'Vlatomjh
;
"
and that ot the
<7'ertpateticks
and Stotcks.
"
As to the
Epicureans^
he is under no Con-
cern
about-
th:m;
they
profelfedly retir'd
from all
politicj1 Affairs;
hetheretore leaves
them
to
philofophize,
in this their Retreat
as they
Ihould
think fit:
But tor
Jrcejilas and
"
Carneades,
he asks
'
a^^rter of them
;
and
"
fears,
that,
fliould
they
come to point their
Batteries
upon
him,
they
would foon niakc
praaicable
Breaches
in this his fuppos d im-
pregnable
Fortrefs : He
perceives not in him-
lllf
Courage
enough
to
repulfe 'em, wilhes
"
therefore
not to be
expos'd to their Indigna-
tion;
is
delirous
to
appeafe
'em, and prevent
all Ads
of
Hoftility."
He has been, and not
without
Rcafon
too,
charg'd
with not adhc-
rin-
ftedfaftly
enough
to his
Principles; and
with
being
too
much an
'
occaiional
Kca-
foner.
I
cannot
forbear
adcHng here Mon-
tage's
Opinion
of this
great Orator s Way of
W^riting.
As to
Ctceru,
%s he ", Thofc
oj his
Work^
that
arc
woji ufejiil
to my Defign,
are his
phihfophical
Tra^s;
particularly
the moral: But,
to fpcak
my
M,ndfreely
Ms
particular Way
ofmnivu
vuth all
others of
the
f
aim kind, is
to me very
tedious.
For
his
^rejaces, Definitions
Divi/wns,
and
Etymologies
take up the greateji
q>artofhis
mrk.
Whatever
there is
of
Lije and
Marrow., ' tis fmother d and loft
in the Tedioufnefs
of
the '^Preparation. When 1 have fpent
an Hour
in reading him, and come to recolleSi what I
have thence extraBed oj ^fnice and Suhffance
;
for
the moji "-Part I
fnd
no}hing but Wind: Fcr
he is not yet come to his main Arguments
;
or yet
ready to produce theflrong Reafons. ithich are
to do the Bujinefs, and clear the 'Pant, I ivant
to be refolv'd in. To me, ^vho only defire to be-
come more difcreet, not more learned or eloquent;
thefe
Logical and Ariftotelian Rules and Ordi-
nances are
of
no
Vfe
at all. I %vould haxe a Man
begin
firjt
with that, which is
of
the laji Ccnfe-
quence. I know well enough what Death and
Pleafure are, there is no Occafwn tojiand ana-
tomizing
oJ
'em to me. I look
for
good and folid
Reafons at frji
Dajh; fuch
as will injirucl me
ho-w toftand
the Shock
of
'em, and make a brave
D
fence. Tour grammatical Niceties,
fine-fpun
Argumentation, and delicate Turns, are nothing
to this '^urpofe
: I am
for
Difcourfes that give
their frji
Charge into the very Heart
of
Doubt
;
his only beai about the Bupx They are proper e-
noiigh
for
the Schools, the Bar, or the 'TJpit
;
where we have Leifurc to nod, and may a-
wake a <Jluarter of
an Hour after.
Time enough to
find again the Thread
of
the Difcourfe^
It is very
requijite to talk after'this
Manner to Judges,
we
have a Mind to gain, right or wrong, to favour
our Caitfc; to Children and common 'T^eople,where
every Thing is to be urgd, in order to
fee
what
will take with them. I want not any one to make
it his Eif/incfs to
Jiir
up my Jttention, and cry
out to me fijty
Times, O yes, as our Crjers, and
Heralds do. The Romans
/'//
their religious Ex-
crcifes began with. Hoc age : as we in ours do
with, SurfumCorda; which are
fo
many Words
hjl to me. I come thither alreadyfully
prepar'dj rom
my Chamber
;
injiead
of
whetting my Jppetite
by thefe
'^'reparatives and4^reludes,they quite
fpoil
my Stomach. Would but the Licentioufnefs oj the
Times excufe
the ftcrilegious Boldnefs; flljonld
even cenfure the Dialogifms
of
Plato himfelf,
as languid, and cumberfome
to his Matter; and
regret' the great Lofs of
Time, fpent upon long
and needlefs
'Preliminaries and Interlocutions
;
by one -who had
fo
many, and
fo
much better Things
to
fay.
My Subjc<5t now naturally engages mc
to give the Reader here, what Montagne lays
-
immediately before the lail-cited Paflage.
"
^ht-
"
tarch, fays he, inAScneca have both this great
"
Accommodation
for one of my Humour;
"
that the Knowledge, I fearch for, is there
^
"
deliver'd
"%
Ibid. Cap. 7^
Sec rhe P.fl-age cited bv Mr
ff;^'y;;^;,i;;^^-:^i^^;j'{f^,^:f^M
PJu C.r.ns, ,M V.etns; uii
I
enuro,jir,i.
inflniaa, & comfotta vulenmr; mmm eUet rumas : quam quuiem e^o i'ima
f j
jfjui^fent
111 luCftJ'''^ J"'" r"
J
'
-
Efl-ays. Lib.i,
Cap.io, p.zpf.
^9^.
And
p. .64.
Ed. ulum.
Fag. .62, &^.
t)f
the Science
of MoRALiTr,
'^
deliver'd 5v,t in Parcels. Such are the 0-
""
ptifctila of ^Plutarch:, and the Epiltlcs of Se-
Z^*^
^""^ guides us, the other pulhes us on.~
"
There are, (fays the fame Author in another
**
Place '')
in 'Vhitarch^
abundance of Dif-
*'
courfcs, well worth our Perufal, where he
*'
is even prolix :
---
but then there are a
"
thoufand others, where he but glances up-
"
on Matters
: Where he only
points with
'
his Finger to direft us which Way we may
*^
go if we will; and contents
himfelf fome-
tnnes with barely
touching
upon what is
^^
molt
material.
Thcfe then are to be re-
\^
'Ppv'*-^ out of their Obfcurity into a clearer
Light."
Mr, and Madam Dacier confefs
%
"Ihat III
the Morals
of
Plutarch,
there is
fcarce any Thing
that is thoroughly
dif-
A f
'
'^"^
.f"^h
made out
;
and that all
the
Matters
there
treated^ a
few only excepted^
are
hut very
fuperficially handled.
As for
hcncca,
his
Treatife de
Beneficits is, in my
Opinion,
the very bell Piece he has; but there
too he obferves
as little Order, and Method,
as in the
reft of his
Writings : a Defedl,
vvhich
IS, more or lefs, to be found in almoft
al the
Authors of
Antiquity.
'Tis own'd
,
I hat
he has join'd to the
Virtues
of
the
firjl
77
Stoicks,
all the
f
ride
and
Uatightinefs:
of their
follower
s:
i\nd
indeed,
we
may eafily dilbo-
ver
,
that this
haughty
Stouk
never Laks
of
Virtue
"Without
Vamty.
Notwithftanding
all
vvhich, he may he read
i^ith
tnfimte Jdvan^
tage
, //
r^e
do but join to his
q>r,cepts
two
IhmgSj
which arc there
wanting:
The one
is
that God has
commanded
as to apply
ourfelves
to Virtue',
the other is, that he
will
reward
with eternal
Happinefs all
fuch as
ihall
have
faithfully adher'd
thereto.
The
fame
IS to be laid too of Epiaetus,
and Mur~
ciis Antoninus.
We have of the
firll be-
fides his Manual,
fo well
known
to' the
World;
fome Difcourfcs
that have
been pre-
lerv'd by Jrrian.
Ihat
Philolopher,
in the
Opinion of Monfieur and Madam
Dacier
-
is
more
unaffected,folid,and pure than
Seneca: But
ts without any great and noble
Views, is want-
h/g in Extent
of
Genius, and
Elevation
of
Thought.
Antoninus has all
thefe
^luaUfications,
with a
Soul more vaji and
capacious
than his Em-
pire.
Hf
contents not
himfelf -with the hare
receiving, and folidly explaining
the Trecepts
of ^is^ Majiers
;
but
frequently correSis,
and
gives 'em i:ew Strength,
either by the ingeni-
ous and natural Manner in
which he has pro-
pos'd 'em; or by the new
Difcoveries
with
which he has iynprov'd 'em.
But
however
it
muft be own'd, that he
retains
fo
much
of the ill Principles, and
Maxims
of
the Stoicks-,
as to require a Reader
of
no
fmall Caution and Judgment. IBeiides
the
Obfcurity and
Hardnefs
of
Stile,
common
to
all
of
that Se^'
;
is jiill
greater in the
Re/leaions
of that Emperour ; who
of
en ex-
plains
himfef hut by Halves
; hecaufe
he
wrote only
for himfelf Nor would
?.ny Thing
lefs, than the Ability of his lall
Tranflators,
have ferv'd to make that Work be read with
Pleafure in our Language.
T he Roman Lawyers, of whom the p-reatelt
Part were Stoicks,
contributed
very'' much
to the perfecling that Part of Morality,
which
may be call'd Natural
Jurifprudence y. The
Study of the Law having
under the Empe-
rours, become a principal Step to Prefer-
ment; the Men of the
greateft Genius,
and
Parts among the Romans,
continu'd
to ap-
ply themfehes to this Study,
for near the
Space of two
Centuries. It were to be wifli'd,
that we had had the Writings of thofe famous
Lawyers intire; they would no doubt have
aftbrded us very great Light. But the Em-
perour
Jupnian, having been pleas'd
to a-
bridgc
w\or?S^'^,M^?f ^'^fT
?"""'' '" "^^''-P^^f^^ t th^ Tranflation of fome of VluurM, Li.es,)
that he was
He had f>ud.cd
under rhc
Philofopher
^mmomus, at Delpho,.
'
'
'
f'V'
^^P,^f' Pag-PS. And Ed. ult.
p. 267.
' 'n their
Preface. See Vies df Pl^iar.
Dae. Tom. i, Pref. p.41.
.*
5
p.,;"-!:
'"
'^"' ^''^'"^
'" ^^'"^'-
^<""-
* A
7,
pDg. 2.- Edit. Haje, ,691. See what G.taker fays in his-
Refleftions
on good and bad Fortune in Lotteries, by Mr. Le Clerc.
p. 229.
Ibid;
'Vo,f,ifra. P,ef. to M,rc. Amonm. *
A
7,
p.
.0.
"
ibid
J See what
Vufendorf lays in his Sfuimm Controverf. cc. Chap, i , Se<ft.
3.
[L]
7
8
Jn
Hiftorical
and
Critical
Account
fcarce known in the
Weftern Parts of the
World, till
towards the Eeginning of the
fixth Century.
The
celebrated Boetius^ by
tranflating
fome of
that Philofopher's Wri-
tings, laid the
firft
Foundations of that pro-
digious, and truly
deipotick Authority, which
the
Peripatetick
Philofophy became after-
wards
poffefs'd
of; and
which, even (o this
Day, in many
Places, it ftill maintains. The
Arahians^
in the eleventh
Century, grew fond
of it ; and
introduc'd
it into Spain. From
thence
fprung
the
Scholajiick '^hi]ofcphy
j
which
fpread itfelf all over Europe^ and with
its
barbarous
Cant became even more prejudicial
to
Religion and
jMorality, than to the fpecu-
lative
Sciences.
The F.thicks of the School-
pten ", is a
Piece of
Patchwork
;
a confus'd
CoUedion,
without any Order, or fix'd Prin-
ciples
;
a
Medley of divers
_
Thoughts and
Sentences out of
Jrijfotle, Civil and Canon
Law, Scripture,
and
the Fathers. Both good
and bad lie there
jumbled together
;
but fo
as that there is much more of the latter,
than the former.
'The Cafuijfs of the fuc-
ceeding
Centuries,
made it their fole Bufi-
ncfs to out-do
their
Predcceffours, in broach-
ing of vain
Subtilties;
nay, 'what is worfe,
monftrous and
abominable Errours; as all the
World knows.
But let us pafs by thefe un-
happy Times
;
that we may at length come
to that Age,
wherein the Science of Morali-
ty was, if I may fo fa}-, rais'd again from the
Dead.
bridge
the
Roman
Laws; of
which
the
De-
cifions
of thefe
Lawyers,
were the
moft
con-
fiderable
Part;
their Works
hereupon
grew
out of Ufe; fo that we have
novv left oi em,
only
fome
Fragments in the Digeft.
Trtho-
r.ian the Lawyer,
to whofe
Care
the
Empe-
rour had
committed
this
Work;
has lett us
a very
Chaos
S
full of
Obfcunty
and Co^"
tradidions;
which afford a
vail
Field for
Chicanery;
and
which have, in the
latter Cen-
turies,
produc'd
that
prodigious
Number ot
fenfelefs,
and
confus'd
Commentaries,
it ap-
pears by this
Colleaion, and
fome
Hiftori-
cal
Remains,
that there were, m the
Roman
Empire,
Seds
among the
Lawjers
"
;
who,
upon
feveral
Points, foUow'd
different
Opi-
nions ;
in the Manner we fee
praftis'd
among
Philofophers,
and Divines.
However,
not-
withftanding
all thofe Diviiions,
and the vain
*
Subtleties,
that were the
common
Source
from whence they fprung;
we may
find a-
mong thofe few Fragments,
feveral
conliderable
Principles of natural
Equity,
that may ferve
to decide many difficult
Cafes
;
but they lie in-
termix'd with a far greater
Number
ot Laws,
purely pofitive-
The ^latonip^ who became
famous in the
third and fourth Centuries ; fuch as
<J>htim!s^
^raeliiisy
Porphyrins,
Jav^blichus,
'J>roclns,
Sec. apply'd themfelves
mi;ch
more to explain
the Speculations,
or
rather
chimerical
Con-
ceits of the Founder
of their Seft
;
than
to cultivate his Morals.
Jrifioth
had
hither-
to, had but very
few
Followers:
He was
*
See the Anti-Tribontan of Tmnch mmm;
the LM\n Verfion of which was reprinted at UM in Saxony; and at I.,>y?.t, in
'''''^^'^'$:i'^tl^^';T^i^^^
in thePnWfu
7W..C,'.,7.of Mr. V.n Ec,, ProfeiTor ..Wr.U;
"See Mr. Brf-/f^, in his Abridgment of the Hiftory of
Philofophy, Cap. j-,
Sect. 9.
SECT.
of
the Science
of Morality.
79
SECT. XXIX.
T
THE famous Chanccllour of England^
Frajicis Racou^ who liv'd in the End
of ihe Sixteenth, and the Beginnhig
of the Seventeenth Century; was one
of
thcfe^
*
who molt learnedly dif'cover'd the Imperjeclion
of
the prefetit State oj ^Philofvphy
;
which he la-
hour d vtgoronfly to redrefs
j
and laid down
moji excellent '^Plans
for
its Reformation. Pof-
teritj will be eternally obliged to him, for the
great Light and noble Projctls he has fur-
nilh'd the World with; towards the general
Rcllauration and Advancement of the Sci-
ences.
We have Rcafon to believe, that 'tv/as
the reading of the Works of this great Man,
that inipir'd Hiigo GrotiaSy with the Thoughts
of attempting the firft to compofe a Syltcm
of the Law of Nature; whieh he afterwards
undertook, at the SoUicitation of the cele-
brated Nuholas de 'Tlerefc^
Judge of the High
Court of Parliament for "Provence.
'
Tis pre-
tended, that Melancthon had already given a
Sketch of fomcthing of this kind, in his E-
thicks
;
and they tell us too of on; Benediii
Wmckler^ who publilh'd in i6i^ a Book inti-
tled,
'^rincipia yans
;
wherei.i he intirely de-
parts from the Method of the S. hoolmen
;
and
maintains
againft them, amongft otherThings*;
that the Will of God is the very Fountain and
Foundation of all JulVice. But'cis acknowledg'd,
that
'
the latter of thefc two often confounds
the Law oi Nature with that which is poli-
tive: And that neither the one, nor the o-
ther has alFordcd any more than a
i
fmall
Gleam of Light; not fufficient to diffipate
thofe thick Clouds of Darknefs, in which
the World had been fo long invelop'd. Be-
fidcs, Melancthon
'
was too much prepolTefs'd
in favour of the Peripatetick Philofophy, ever
to make any great Progrcfs in the Knowledge
of the true fundamental Principles of the
Law of Nature, and the right Method of
explaining that Science. Grotiiis therefore
ought to be regarded, as the firft who broke
the Ice ; and moft certain it is, that no
Man could be better qualify'd, for fuch
an Enterprize. Extraordinary Clearnefs of
Underftanding
;
exquilite judgment
;
pro-
found Meditation; univerlal Knowledge; pro-
digious Reading ; continual Application to
Study, in the Midft of a great many
vexatious
Obftacles, and the neceilary Duties of fcvcral
conlidcrable
Employments ; witn a jinccrc
Love for 1Vuth ; are Qualifications, which no
one can deny properly to belong to that great
Man,
without wronging his own judguient;
and bringing his Charader in Danger "^cf the
Imputation cither of bafe Envy; or grofs
!?-
norance. " If (as has been very righciy
^
ob-
"
fcrv'd) he was not thoroughly
acquainted
"
with the Art of Thinking jui^-ly; tne Fhi-
"
loibphy of his Time, being iti'll very dark
"
and obfcurc; he has fuppl/d, in a great
"
meafure, that Defed, by the Force of his
"
good Senfe. If, without the Help or Art,
"
he has Ihewn fo much Delicacy of Tafte,
"
and true Difcernment ; what would he not
"
have done, had he been intire Mafter of
"
that Art of rcafonir:g juftly, and oi rightly
"
methodizing his Thoughts, which is now,
*'
and has been for fome lime, to be had ?
"
His Book was firft pubiilhed at 'l^aris in
162^,
and dedicated to Leivis X!i[.
'Tis laid he
at firft 'defign'd to have entitled it. The Law
of
Nature and Nations
;
but he chofe after-
wards to give it the Title it now bears, of,
the Law
of
War and ^eace. What he
'
had
chicfiy in View
was, to fet forth thofe Duties,
which the fcvcral ^
Nations of the World, or
their- fovereign Powers, that govern them,
owe one to another ; and how the Dilferences
arifing between 'em might be juftly termina-
ted. For which Purpofe, he takes into his
Work the principal Subjed Matters of natu-
ral Jurifprudencc, and Politicks ; and lays
down alfo Principles fuificient to eftablilh
the
moft conlidcrable Duties of private Men. He
* himfejf owns, that he is far trom havino-
ex-
haufted fo copious a Subjed; and wilhes that
others may fupply what's wanting;
to the
End; that Mankind may one D^y be
furnilh'd
with a-compleat Syftem of this Science.
Ne-
ver had Book a more univerlal
Approbation.
Numbers of the Learned
-'
have wrote Com-
ments upon it : It has been publickly read and
expounded in the Univerfitics : And the Au-
thor, but
fifty
Tears
afer his Death^ had an
Honour done him^ which was fiot paid to any
of
the Ancients^ till
after a long
SacccJJIon
of
Ages :
'
See Mr. Bayh'i Di6l.
p.
417. See alfo the Specimen controuerf. of Vufendorf, Cap. i , Si&.f,
Lib. I, Cip 5. 4.
'
SeeGronra,'!/ B-.hl-oth. Jitr. Gent. Lib.;, cap. 4, Sefl.p. And
J.
Irid. Liiaovic. Delineatio
Hift.j.
i^at. 5cc. Sect. 14.
Mr. BiuJfus, in his Hiftory of
the L^no
of
Na:ure, Seft. ij.
'
S.c his .Article, in Mr. Bayie'% Diil. Rem. (K).
'
?Arrhii,'!iina, Tom. i
, p. 546.
*
Ihiil. Num. 51,
& fccj.
^
See the Names ot the chief of them, and a very juft Account of their Performance, in the Hijf. dn T>-ci: Nat. by Mr. Euddeui,
*
Mr. BijU Dift. Rem. (O}, p.
i-j-o;, Col. 1. See the reft ot this Remark.
[L
2]
An
Hijiorkal
and Critical Account
80
J^es : I meafiy
his heing
publip'd cum
Com-
menrariis
Variorum,
at Francfort
-'
on the
C-
dcr, in 1691.
.
- , .
Some Time after the
Publication
of this
Work of Grotius, John
Seidell, a
celebrated
EiigUlh
Lawyer,
enter'd the
Lilts
^
^'^h^^'
ther through ]ealouf>v
or a
commendable
H^
mulation^
form'd a Syftem
of all the
hebrezv
Laws, relating
to the Law of
Nature^
which
he feparated
from
thofe,
that
concern d the
particular
Conftitution
of the
Je'-^ifr
Repub-
lick. He gave his Book the Title, ot the
Law
of
Nature, and Nations,
according to the
Boanne
of
the
Hebre-d;s ;
wherein he is cxcel-
fivcly lavifh of
that vail
Erudition,
which we
find in all his other
Writings:
But is tar e-
nough from
eclipfing
the Trcatife or
Grotins.
For, belldes the
extreme
- Diforder,
and Ub-
fcurity, for which
Se'.den'a
Manner of Wri.
ting has been jullly
cenfur'd
;
that Author
derives not the
Principles
of the Law of Na-
ture from the pure Didates of Reafon
;
but
from the feven
Precepts
given to Noah;
which,
as to their Number,
are very
uncertain
;
and
folely founded
upon a
doubtful
Tradition,
though perhaps
ancient enough :
He very of-
ten too contents
himillf with barely reciting
the Decifions oi the
Rabbins
;
without
giving
himfelf the
Trouble to examine,
whether they
are well or ill
grounded.
Not long
before the Death
oiGrotms,
another
EniltOj Au'thor
appear'd,
of a
Charaaer
quite
different from that of
Selden, I mean
' Thomas
Hobbes
;
a great
Mathematician,
and one ot the
moft penetrating
Genius's
ofhis Age. It is great
Pity he fufler'd
himfelf
to be mifled by the
Indignation he had
concciv'd
againft
thole,
whom he look'd upon as the
feditious
Diltiir-
bers of the Peace of his
Country:
Had he
philofophiz'd without
Prejudice,
and
with a
fincere Regard to Truth
only
^
he would
doubtlefs have done her very
fignal
Service.
He publilh'd at
^aris 1642,
his ^ 1
reatile ^e
Croc; wherein, amongft
other
dangerous
tlr-
rours, he endeavours to eftablilh,
and thiJt too
in the Geometrical
Method, the
Hypothehs
of Eptciirits; which
makes
Self-Prefer\'ation
and Self-Interelt, to
be the original Caufes
of Civil Society.
He builds upon this Sup-
polition; That all
Men have the Will, as
well as the Strength and Power to Mif-
chief one another ;
and that the State of
Nature is a State of War, between
each
particular Perfon, and the reft of Mankind.
He gives an unlimited
Authorit) to
Kings
;
not only in Affairs of State, but even in Mat-
ters of Religion.
Hobbes created himfelj
by
this Work many Enemies ; but, as Mr. Bayle
fays ?, the more difccrning
and judicious '^art
of
Mankind wereforc'd
to acknowledge,
that no
one had ever yet penetrated fo far
into the ionn-
dations
of
Civil 'Policy.
Lambert Velthnyfen,
a famous
Philofopher
'
of the united
Provinces,
boldly
undertook the Defence
ot this
Treatile
De Give, as far as related to
Hobbes's
Manner
of demonftrating
the Laws of
Nature.
I he
fame Year this Defence
appear'd,
Hobbes pub-
lilh'd his Leviathan ;
the Sum
whereot is :
"
That, without
'
Peace,
there is no Safety
"
in a State
;
and
Peace
cannot
lublift, with-
out Authority ;
nor
Authority,
without
"
Arms^ and Arms avail not, unlels put into
"
the Hands of one
Perfon : and that the Bear
"
of Arms cannot incline
thofe to Peace,
who
"
are pulh'd on to
Hoftilities
by an^ Fvil,
"
more to be dreaded
than
Death
itfelt^ that
"
is to
%,
by
Dilfentions
about
Things ne-
"
cefliiry to Salvation."
In this
Piece he lays
himfelf much more open; for he here roundly
maintains, That the Will of the
Sovereign a-
lone conftitutes, not only what we call jull and
unjuft; but even Religion alfo
;
and that no di-
vine Revelation can bind the
Confcience, till
the Authority, or rather
Caprice, ot his Le-
viathan; that is, of the lupreme
arbitrary-
Power, to which he attributes
the Government
of every Civil Society
;
has
given it the Force
of a Law. If thereupon we
fometimes_ find
in his Works, fome feeming
Contradidlions
;
'tis probably, becaufe he durft not truft the
Reader with the whole of his
Notions
;
and
was willing to provide for a Retreat, in cafe
he lliould not be able to ftand the Shock of his
Adverfaries. He had feveral
of 'em; but
'
they did not all fucceed
alike. He pals'd
for an Atheift; and
perhaps
they were not
very much out in their
judgments, who
thought him fo; for he admitted none but Cor-
poreal Subftances.
Mr. i?ay/t, in
hisDiaionary, p.irr,'-
.... .-
l- t? ;! Pnift (?lS
~
d o,-i col i
of his 0^7-
N-';/
f7,^f^^^;^7.^i,,,d,
^;j2i;,^ ViJfertMio,
de pmcifiis j.fli &
decori, continens ^,oIo^>. pro tr^.^itu
da-
SECT.
cf
the Science
of Morality.
8i
SECT. XXX.
TH
E Number of Commentators upon
Grotius daily increaling, infomuch that
there was now fcarce any Thing elfc
m nded, belides Difputes about the Senfe of
his Words ; and the barbarous Terms, and ri-
diculous Subtleties of the Schoolmen, of which
Grotius had purg'd his Work, being again
brought upon the Stage
^
a Gennan had the
Courage to lliake off the tyrannical and per-
nicious Yoke of Cuftom; and bravely follow
the Footftcps of that great Man : I mean the
iilnjirions Samuel
-Pufeiidorf"'^ who has there-
b\ acquir'd an immortal Reputation : a Repu-
tation, whofe Luftre not all the Eiforts of his
en\ious Competitours will be ever able to et-
face. He purfu'd the Genius and Method of
(^rotius : He cxamin'd and weigh'd Things in
their Originals ; and making the belt Ufe he
could, of the Difcoveries of thofe who had
gone before him, he then added his own
;
which foon gave very great Hopes of his ac-
complilliing that Work, which as yet was but
in E.nbryo. The Principles of the new Phi-
lofophy, which he exceedingly relilh'd, but
without blindly adopting all the Opinions of
the Cartefiam
;
together with the Mathema-
ticks, which he ftudy'd under
*
a celebrated
Profellbur in the Univerfity of Jena ;
did not
a little contribute towards the perfefting his
natural Qualifications
;
and rendering him
more capable of fo vali a Work. We are be-
holden, for the firil Sketch he drew of it, to
the Leifure an unhappy Accident, he had the
Misfortune to meet vvith, gave him. He had
been fent for into Denmark.^ to be Governour
to the Children of a certain Lord, who was
then Ambafladour of
'
Sivedeu to the other
Northern Crown. A little after his Arrival
at Copenhagen., the War fuddenly breaking
out again with the S^jcedes., (who attack'd
that City, but were after fome Time oblig'd
to raife the Siege
;
) Mr. '^iifeiidorf was made
Prifoner ', with the reft of the Retinue ofthe
Ambaffadour; who was himfelf but a few Days
before, gone to take a Trip to Sweden. Du-
ring this Confinement, which lafted eight
Months; as he had no Books, neither was
permitted to fee any Body; he took a Refo-
lution
'
to meditate on what he had read in
Grotins and HobUs:, and having collected his
Meditations together, he compos'd a lliort
Syltem out of what he lik'd bell, which he
turn'd and explain'd his own Way ; handling
fuch Matters as thofe Authors had omitted
;
and adding to the whole fome new Thoughts
of his ovvn, as they occurr'd. Not that he
intended, at that Time, any Thing more,
than to divert himfelf in his Solitude : But a-
bout two Years after his being fet at Libert}",
he went into Holland
;
where a Friend of his
getting a Sight of this Eiiay, advis'd him to
review, and publifli it. He did fo ; and the
Work was printed at thcHagne, in 1660 ; under
the Title of Elements
of
Univer/al
J-nrifprn-
dence. He owns in his
*
Preface, that, be-
fides Grotius and Hobbes., the Profellbur
in Mathematicks mention'd before, had af-
forded him fome Light. His Method is,
in fome meafure, that of the Geometricians :
For he firlt lays down his Definitions and
Axioms
;
afterwards he explains 'cm
;
and
then draws out the Confequences they con-
tain. And though he himfelf prov'd after-
wards dilfatisfied with this Work of his, and
publickly own'd it to be the imperfedt and pre-
mature Fruit of his more juvenile Studies
;
yet as the Publick gave it a very favourable
Reception ; fo it ferv'd to make our Author
known to the World, in a very advantageous
Manner, The Eled:or Palatine, Charles LewiSy
to whom it was dedicated
;
was not fatisfy'd
with returning him his immediate Thanks for
it, in a very obliging Letter
^
j
but fent for
him the Year following to his Univerfity of
Heidelberg
j
*
He Was original!)' of the Mnrcjiii/ate o Mifnia,
in Saxonv. ant3 a Lay Man, tho' fprung from the Clergy ; for his Father,
Grandfather, hi? Undes. both on the Father's and Mother's Side, were Miniftcrs of the Lutheran Communion. I learn'd this from
One of the Pieces, which compofe that Colleftion, intitled, Eris Scandkn,
p. 149, ifo. The Viihge, whereof bis Father was
Minider, is call'd Fkh, near Chemnitz. ; and in all Probability he was born there. His Brother at leaft, Ifniah Vuiendorf, is a Na-
tive of that Place; as Mr. Gunding teftifics, in his
Hifi. Phiief. Moralis, Part ', cap. 5, Seft. j-. Note 10. See alio the jiiia lErudi-
torttm of Leipfc, .An. 1708, p
185-.
*
Z'hsirdHeighel. He was with that Profeffour in 16
fj,
during the whole Year. See I-ris Scandica, p. 116.
'
Mr.Coysl: This happen'd in i6y3. Eris Scandic-i, p. 126.
* One of his Letters, to the Bxron de BoineSurg. is publifh'd ; wherein he fays, that the Pretence for detaining him was; that
his Brother was fettled in Swtden. See jf. Grcaingii 'Biblnthec.
fur.
Gent. Lib.;, cap. 9, p.
iSi. 'Twas that Brother, to whom
he dedicated, in 1675-. his Diffirtationes Acidemia SeUHiores. He calls him [JMnh de Pufendorf, Knight. (Ecjues .Awatus,) and
Chancellour to the Yi'ngOi Sweden, in the Dutchiesof Bremen and Verden. He fays he had been lent to the chief Courts ot Europe,
about the Affairs of that Prince. See the Place before quoted, Lett. (.1},
in fvlr. Gundimg'% Book.
'Tis what he fays himfelf, in the Letter above cited; but which, as well as the others which follow, is full of Errata; which
in many PLces fo fpoil the Senfe, as to make 'em unintelligible.
*P-er.*
p. 5,_ 8c d.
f
The Dedication is dated the Firft of September, 1660, and the Eleiftor's Letter the 29th of the fame Month. The Letter is
printed in the SM. fur. (y
Gent.of Gronmgius, Lib.
5,
Sap. 10, Seft. i. And in the Delinentio Hift.Jnr.
divini, &c. of
Jf.
rid.
Ladovic. publiihed at H<?i/ in 5(jzB_y, 1701. Sed
4/.
82
An
Biftorical
and
Critical
Account
HeHclben\
where,
on his
Behalf,
he
founded
T^MorlHp
in the Law of
Nature
avd ha-
Sc./'^rhus,
that
great
rnnce,
at the fame
Time
thatheconferr'd
on Uv fufan/orf
io
hish a ]\iark of
Dillinaicn
and
Favour
;
ie-
cur'd to
himfelf
the
immortal
Glory,
m ha-
ving rft fet the
Example
to all,
who
Ihould
hereafter
publickly
caule
to
be taught
this
noble Science;
a
Science
lo
neceffary
tor \
outh,
and indeed
fol-
all
Mankind
j
but
which no one
had as yet
bethought
himlelt
ot
introducing
mto
the
publick
Univcrfitics.
As
our new
Protellour
conllandy
made
it his
Bulinefs
to explain
the
TreatifeofGK.m^^i
fo this
gave him the Op-
portunity
of
obferving,
more
and niore eve-
rv Dav
the
Neceffity
there
was ot
compofing
Oi'ng
in that
Jnd,
.that
i^-uld be more
complete!
The
Sollicirations
too ot the
Ba,o,i
deBoiuebonrg,
then
Chancellour
to the
Elec-
tor of
Mentz ; might
alfo
contribute
very
much to
engage
him
therein
That
Minifter
was
extremely
dcfirous,
to
have
fome
Bodv
fet about the
compiling
a
methodical
Bod>
ot
natural
Turifprudence ;
and had
in v^ain en-
deavour'd to
perfuade
feveral
learned
Men to
undertake it; and
amongft
the
reft,
Bceclc,
Connvgius,
and
Kachelms.
^\e may
eahly ima-
gine that
after havir^
read
Air.
^ujcudorj^
\lemeuts of
Vniverfal
fimfpradeuce,
he could
not fail to apply
to hiii for
tha
excellent Pur-
pofe,
judging
him
more
capable^
than any
Sthe'r,
^
of^
executing
that
-ble
Defi^^.
He
found him
accordingly
intirely
difpos d to fo-
tisfy fo
laudable
a
Delire.
Mr
^ujevdorj
kid before
him a
Plan of the
Syftem
he de-
fign'd
: He
reprefcnted
to the
Baron,
that^the
due
Execution
thereof
would
require
(tnefe
are his own
proper
Terms)
great
^enetratto,,
of
MM;
an
cxqafitc
Judgment',
and free
from
all
Manner of
Prejudice;
amimerousLt-
brary,
great Letfure',
a fettled
Correfpondence
-with feveral
learned
Men;
who
would,
upon
all Occafions,
freely
communicate
then
Thoughts
to him: JlI which
Things,
adds
he,
Iwant.
However,
he
promis'd to do all
that lay in
his
Power;
but
without
hurrying
himfelf;
neither
would he
engage
to pur. iQi his \\
ork,
till he had
brought
it in fome
Degree to an-
fwer his
Expedation.
Thcfe
Particulars I
have from a
Letter,
he wrote '"
Answer to
the
Baron de
Botneboiirgs,
pubha.d about
four or five
Years
ago,
with two Letters ot
Boeder,
and
one of
^^''\^'^;i;^" '
,!
whom
that
Minifter
had fent Mr. 'Tujendorj s,
to have
their
Opinions
upon the Matter.
Conrinm^
and
Bceclcr
were too m^uch pre-
poiTefs'din
favour
of
Antiquity;
and too un-
experienc'd
in the
Bufmefs
ot clear Reafon-
mss
to
weigh
and
examine
rightly
the Pro-
ied and
Ideas of
our
Author. 1
his plainly
appears
by their
Anfwers :
Connvgms s is in-
deed a very
civil
and
obligirg
Letter
;
but tis
rem-rkable,
that
Boeder in his dilcovers an
extraordinary
Uneafinefs
at the growing tame
of Mr.
^ufendorf;
and an extreme
Delire to
leflen
that
Efteem,
the
World had conceiv d
of him.
This
happen'd
m the ^
ear 160?
About the
Year 1667,
C/We5
XI, King ot
Sweden,
defigning
to
eftabhili an Univeriity
at Lunden,
in the
Province
o^
Schonen
;
re-
folv'd
'
to invite
thither
our
Heidelberg ^ro-
felTour.
The
Eledor
Palatine
was very loth
to part
with him ;
but did
not
however think
fit to lay his
Com.mands
upon him
;
and at
length confented to his
accepting
the more
profitable and
advantageous
Poft, offer d him
in
Sweden.
But oblig'd
him that fame \ear
to beftow fome Hours
extraordinary on the
Eleaoral
Prince his Son
;
who had his
appointed
Preceptors
befides. Mr. ^ufn-
dcrf
went into
Sweden;
and w^as, in
1670,
there
eftablilh'd in the new
Univeriity at Lun-
den
in
Quality of chief
Proteflour in the
Faculty
*
of Law ; and
with a Salary more
confiderable
than any of
the ether Proteffburs.
Two
Years
after, he
pubhlli'd his Law
0/
Nature
and
Nations : And in 1684
he reprinted
it at
Francfort on the Main,
augmented above
a
Fourth
Part.
'
Ens
ScanMca. p. 117,
1^8.
o c
^, , r- v.Amn Qnmp Years after
his having executed that Chnrge,
SECT.
of
the Science
of
Morality,
83
SECT. xxx;l
I
Shall not here enlarge in Tetting forth,
in a
pompous Manner, all the particu-
lar
Excellencies of this Work. Nor
do
I think myfelf under any Obligation to
follow the ellabliflT'd Mode; which will
have
"
every Tranjlator to pay^ his Original
the Tribute
of
l^rcfercnce
;
neither does the
Office of an
Interpreter necellarily oblige
me fo to do : I Ihall content myfelf with
fpeaking here hiHoricalljr; with the fame
Indirterence
and Impartiality, as will, I
dare fay, every where fhew itfelf in my
Notes upon this
*
Author. There is no
fuch Thing as abfolute Perfection in Books,
any more than in any other humane Pro-
dudions
;
And Mankind has, without any
more ado, a Right to treat as Mountebanks,
all thofe panegyrical Writers; who, to fet
off the Authors they tranflate or comment
uoon, or rather themfelves and their own
Performances; begin with alFuring the Rea-
der, that it is an intirely accomplilh'd
Work
in its Kind; a complcat Model, the ut-
moft Effort of human Ingenuity :
Always
ready to fay as much, in four Days Time,
of any other
Author, who fliall firffc
ha\e the good Fortune to fall into their
Hands.
Firft then, I fliall obfervc, that this
Work has had a very general Approbation.
The vaft
Number of Editions it has had
in Sweden^
Germany^ and Holland^ within
the four and thirty Years fmce it was firft
publifli'd; do fufficiendy declare, in what
an advantageous
Manner, it has been re-
ceiv'd by the Publick. At the fame Time
that I was tranilating it into French^ I was
inform'd, by the Nonvelles of Mr. Bernard^
*
That Dr. Kennet
of
Corpus Chrifti in
Oxford, with fome \
others, had travjlated
it into Englifti : I fliould have been very
glad to have met with that
Tranflation
;
to have confulted the Introduction, and the
II
ample Notes, with which it was faid to be
accompany'd ; and at the fame Time to
have fccn, if thofe feveral Hands have been
able fo to carry on fuch a Work in Concert,
as that the necefTary Uniformity thereof has
feceiv'd no Prejudice: But, for our Author
himfelf, as there are certain fmgle Suffrages,
which alone weigh more than Multitudes
of the common Sort; I fliall here produce
two of that Kind, which are of very great
Weight; and to which all Men of Judgment
will, I am pcrfuaded, pay a very great Re-
gard. The firft is that of the illuftri-
ous Mv. Locke, that great Philofopher; whofe
Lofs the Republick of Letters ftill laments;
and whofe exquilite Judgment, profound
Penetration, and extraordinary Abilities, e-
fpecially as to what concern'd Matters of
Keafoning
;
all the World is fufficiently ac-
quainted with. Let us fee what he fays,
in his excellent Trcatife of Edacaticn :
When
'
\^a young Lad'] has pretty well di-
gcjfed 1 uUy's Offices, und added to it Pu-
fcndorf de Officio hominis & civis, it may
he feafonable to
fet
him upon Grotius de
Jure Belli 6c Pacis, or, ivhich perhaps is the
better
of
the two, Pufendorf de Jure Natu-
ral! & Gentium; wherein he will be in-
Jirucled in the natural Rights
of
Men, and
the Original and Foundations
of
Society,
and the Duties refulting from thence. The
other Suffrage, is that of Mr. Le Clerc
;
concerning whom I fliall, though with Re-
gret, forbear faying what I think ; for
fear I fhould offend his Modefty by Enco-
miums, which no reafonable Perfon re-
fufes to give him ; and which, in my Mouth,
would be of no great Weight. His Ap-
probation falls not diredtly on my Original
;
but is not therefore of lefs Force; feeing
it regards the Abridgment of it, which the
Author himfelf made, a Year after he had
publifh'd his principal Work. Let us fee
then what he fajs, in the
''
'J^arrhafiana
;
when he is treating of the general Know-
ledge, which one ought to have of the Prin-
ciples of Civil Policy : The Books
of
Hugo
Grotius de Jure
Belli ac Pacis; and that
of
Samuel Pufendorf, intitled, De Officio
Hominis & Civis ; are admirable
for their
general 'Principles. More efpecially the Se-
cond
;
which, as it is more concife, ejla-
blifhes with great Clearnefs and Order, the
Fhndamentals
of
Morality, 'T'oliticks., and
yurifprudence. Whoever reads it carefully,
will there find
'Principles fujfkient, to folvc
moji
of
the principal (^ejfions in thofe
Sci-
ences
;
*
Sitcy, in his Preface to the Tranflation of the Letters of Pliny the Xotinger.
* Mr. FufmJorL tie fii. Goit & Nat.
^ April, ijo^, p.^Cy.
, . rV,
-
-i u
-f
The piincipal TranQitor, in liis Preface, names Mr. Veraial, and Mr. Xtchiner, who tranflated tne tihh and e.'glitft
Books.
H
Thefe No'es are only tiie Quorarions of the Author himfelf.
'
Sect. i85,~ of the fifth and fi-xth Editions, in 8vo, prnued in 170^-, and 1709, p. 334)-
* Tom.
1, p. 1
17,
I iS,
O'C.
84
An Hiftorkcil
and Critical Accomtt
euces
;
ivJjicb can ad7f.it
of
uny Debate.
Since thn the Abridgment is, in Mr. Le
C/erc's Opinion, fo uieful ; what muft he
think of the Book itfelt? But that I may
give a more particular Idea ot the Work
iticlf, and that every one may know the
juft Value thereof; 1 will in a few Words
draw the Parallel of it with that of
Gro-
tiiis.
To begin then with the Style
;
if the
Quellion be about Purity of Language, and
Accuracy of Exprellion, I readily give the
Preference to Grams
;
who had an Erudi-
tion incomparably more vaft; and who, from
his Cradle, if I may fo fay, wrote with mar-
vellous Facility and Elegance. But then
even his Style is too concife
;
he very often
fpeaks out" but half his Meaning; and fup-
pofes his Reader to know many Things,
which require very great Study and Appli-
cation
;
lb that his Work is of little Ufe
but to the Learned : Whereas Mr. ^Viifsii-
dorf's is much more within the Reach of
common Capacities. As to what concerns
Order, and the Difpofition of Particulars
;
the general OEconomy of the Work of
Mr. ^/ifendorf is by far the beft : But, in
the particular Ranging of the
*
Materials,
that compofe each Chapter, he has fome-
times let flip feme Inaccuracies, which are
jtiot to be found in Grotitis
;
from which I
have endeavour'd, as much as poifible to
difengage my
1. ranflation : As to the Sub-
ject Matter, I have already taken Notice,
that Grotius pretended not to give a com-
pleat Syliem; which might be eafily fecn,
though he himfelf had not declar'd it. 'Tis
only occafionally that he touches upon e-
ven the greateft Part of the principal Sub-
jedt Matters of natural Right : So that,
though his A'iews had been more extenfive,
and lefs imperfcdt, than they feem in ma-
ny Things to have been ; his Plan did not
lead him to a full DifcufTion of them
;
it
was enough for him to handle 'cm fo far,
as might be fufficient to decide the Quef-
tions, which cdncern'd the principal Sub-
jedl of his Book, In a Syliem of t-he Law
of Nature, an Author ought, without Dif-
pute, to begin with inftrudbing his Reader
in the Nature of moral Entities or Beings;
in the Principles and different Qualities of
humane A'dlions
;
and what it is that makes
'em imputable either as good or evil; in
the Nature of Laws in general ; and their
different Kinds, i^c But we meet with
fcarce any Thing in Grotius., relating to all
thefe Matters; which compofe the firll Book
of my Original. Grotius faw what was the
fundamental Principk of the Law of Na-
ture : But he does no more than jull point
it out in his
Preface; and that in fuch i.
Manner too, as gives us Reafon to con-
clude, that his Ideas on that Head were
not altogether clear ; nor enough difen-
gag'd from the Prejudices of the Schools;
And when he handles any Mat er particu-
larly, he docs not always fticAv the Connec-
tion it has with its firft Principles. On
the contrary, my Author eftablifhes, and
diftindlly explains the fundamcntal Max-
ims of the Law of Nature ; and from
thence deduces, by a regular Train of Con-
fequenccs, the principal Duties of Men
and Subjedls; in whatfoever State and Con-
dition they are. As Grotius omits fomc
important Matters; fo he touches upon o-
thers that might have been very well ijaar'd
y
as when he examines Qucftions relating ra-
ther to Divinity, than to the Science of na-
tural Right ; or elfe enlarges on fome cer-
tain Subjedts, more than is rcquilite in a
general Syliem; as, for Tnflance, on the
Subjed of War. On all thefe Accounts,
his Work is very much inferiour to that oJf
Mr. 'Tujendorf:, who belides fcarce ever
borrows any Thoughts fi-om Grotius ^, but
what he improves, an-d explains more dif-
tindtly
;
and draws from 'em a greater
Number of Confequences. In fine, Mr.
^ufei.'dorf often refutes Grotius^ and that
too with Reafon
;
as may be feen at one
\ iew by running over my index
of
j^uthors :
and, to be convinc'd, that Grotius had, as
to feveral Matters, even falfe, or at leaft
very confus'd Ideas; there needs no more,
than to examine one fingle Notion of his,
which runs through his whole Syftem
;
I
mean that pretended Dillindtion of his, be-
tween the Law
of
Nature^ and a certain
Law
of
Nations'^ which he conceives to be
founded on the tacit Conlent of the People
of thofe feveral Nations.
From all this, I think, I may boldly,
and without any Fear of being fufpedcd.
to ha\c too great a Tendernefs and Affec-
tion for my Author; infer, that his Work,
take it all together, is far more ufeful than
that of Grotius, I have no Defign to de-
rogate in the leaft from the Glory of that
great Man, who is far above all my Enco-
miums. We fliould not, perhaps even at
this Day, have had any tolerable Syftem of
the Science of the Law of Nature, had
it not been for the Light he has given
us : And had Mr. '^Pufendorf been in
the Place of Grotius, and Grotius
in the
Place of Mr. '^ufeudorf:,
the Work de
Jure
Belli ac I'acts would ^ in my
Opinion,
have been much more imperfed: than it is
;
and the other, De "Jure
Gentium
S Natur,i;
much more perfeft. 1/ fay it once again,
that
The learned Journalifts of Leipfich, in that mod obliging Extradl they gave of the firfl: Edition of this Work,
fur.. T707,
p.
55", make me fay quite the htrary: In fpeaalwribu! pertraB.inMs accwatiorem e(fe Grotio fiitat. Perhaps this is
only an F.rrour of the Pr-fs, (Grono for Grctium : ) though I do not find it mark'd in the Errata of that Year.
'
V'otegom. Num.7, ^ ''eq. particularly. Num. 11, l%,
13, 14.
f For which Reafon I have taken care to cite in the Margin that learned Man, in a great many Places, where
Mr. Fufen-
dorfhiA forgot to do it; fo that by Means of my Tranflation, one may perpetually confront Grotius with my Author.
of
the Science
of
Morality.
tiiat I never entcrtain'd a Thought of di-
verting any one from reading the Book of
Grotius : But very far from it, I am hear-
tily forry, out of the Good-will I bear to
the Republick of Letters
^
that this excel-
lent Work is fo wretchedly tranflated into
our Language. If the Truth may be fpo-
ken, Mr. de CourtIv^ who is the Author of
this Tranflation, undertook more than he
was able to perform ; and it is furprizing
that a Man, %vhofe Employments particu-
larly engag'd him in the Study of the Sub-
jed Matter of this Book ; lliould fucceed
no better in a Defign of this Nature. I fhall
fay nothing of the Barbaroufnefs, Rarfli-
nefs, and Obfcurity of his Style : This is
obvious to every Reader upon the firft O-
pening of the Book. But there are too a
great Number of eflential Faults, which
make Grotius fpeak quite befide his Mean-
ing
;
and the Tranflator fometimes trips in
Places fo plain and eafj^, that he difcovers
a great deal of Ignorance, both in the Sub-
'ed: Matter ; and in the Latin Tongue,
"^he Notes too, which he has infertcd in
his Index, in order to explain the Terms,
and fometimes the Thoughts of Grotius
;
make the Thing yet more apparent. His
Explanations are for the moil Part either
falfe, imperfed, or {o confiis'dj that in-
ftead of clearing up Matters, they ferve
only to render 'em fiill more obfcurc. I have
here advanc'd nothing, but what I can very
eafily make appear. And though I have not
confronted this Tranflation with the Ori-
ginal quite through
;
yet I have noted
down, as I have at fevcral Times confult-
ed it, fo great a Number of fuch Sort of
Blunders ; that I may, without the Impu-
tation of Raftinefs, pals this Judgment up-
on it. When the firfl; Edition of my Pre-
face appear'd, I immediately fent a fmall
Lift of them to one, who had taken Of-
fence at this judgment of mine on the Per-
formance of Mr. de Courtin
j
but the Par-
85
ty had nothmg to reply
to me as to thofe
enormous Faults,
ot
which
I had taken
my Inftances almoft at the very
liril Open-
ing of the Book.
But the bell
Way to
convince all Mankind of a Thing,
of which
I think no judicious and
impartial
Perfon
can have a Moment's Doubt ; would
be to
publilh a new
Tranflation
oi'Grotius's
Book
:
which I may *
perhaps fomc Time ch- other do,'
fliould I find Leifure enough for it. I fliould
follow the fame Plan as in my Tranflation
of
^ufei/dorf-, in fuch Manner as to refer
from one to the other, both in the Text,
and^ Notes
; and to make the two Works
join'd
together ferve as perpetual Supple-
ments to each
other. There
would then
appear fo great a Difference between the
two Tranflations,
that every one at firft
Sight would conclude,
that one or other
of the Tranflators
muft have been ftrange-
ly out of the W^ay. I am not igno-
rant that a learned German
Profellour
commends
this Verfion of Mr. de Cour-
ting as an elegant, char
Verf.on, that -luay
ferve injlead
of
a Conment ; he adds too,
that the
Tranflator has in an accurate /;;-
dex, given his Reader an Jhridgment
of
the
whole Work. But, in all Probability,
this
learned Man has rely'd upon fome Body
elfe's
Judgment in this Matter;
or perhaps,
being better
acquainted with the Latin,
than our Language
;
he has
concluded
this
Tranflation to be a good one, bccaufe
the
Author fpeaks Latin in French.
It has
perhaps *, been reprinted
thrice, or it may
be oftner;
but this only Ihews what Cre-
dit the Original itfelf of Grotius has in the
World; and the great Want there is of
Books of this
_
Nature. So that,
admit-
ting there was, in the main, no great Dif-
ference between my Original, and the W^ork
of Grotius
;
this Tranflation
at leaft of
the latter, could afford no juft Caufe, why
I fhould
have defifted frortl tranflating
the
former.
* Th]!; he has fince perform'd, and his Tranflation printed at Amjlenkm, An. 1714.
* Mr. Budileus. hereroFore Profeflbur of the Law of Nature and Morality at Hull in Snxonv; and at prefcnt Prcfeflbur in
Divinity at Jena. See his Hiftory du droit Natitrd, Seft.4.
*
Tlic lafl Edition I know of, is that of the Hague, in
170J.
[M]
SECT.
86
An Hiftorical
and Critical Account
SECT. XXXIL
MY
Delign .in this Tranflation, has
been to do Service to two Sorts
of Perfons. The firft, are fuch
young iMen, as are deftin'd for publick
Employments, as well Eccleliaftical, as Ci-
vil. We fee 'em every Day afpire to, and
iidually obtain thofe Employs
;
without
having the Icaft Tindture of the moft ge-
neral Principles of a Science, fo univcrfally
necehary, as is the Science taught in this
Book: In fo mtich that, even though the
Paflions fliould not otherwifc intrude thcm-
felvesj we need not wonder to fee Affairs
fucceed fo ill in the Hands of Men, wj;io
fit down contented under fo grofs an Igno-
rance of their .Dudes. It may perhaps be
faid, that they can read this Book in Latin,
and therefore have no needofmyTranilation.
But, not to mention at prefent the Regula-
tions and Amendments I have made in the
Text of my Author, and the Notes I have
added to it ; an exad Knowledge of the moft
neceflary Languages is belides a Thing ge-
nerally very much negledted
^
and there are
vail Numbers in Offices, who either do not
underftand Latin at all; or elfe fo little,
that they cannot, with Pleafure and Im-
provement, read a Book in a Stile like
that of my Author. Befides 'tis my No-
tion (if I may be allow'd to venture a
Thcfught, which is perhaps peculiar to
inyfelf ; but I believe well enough ground-
ed: ) that we ought, as much as poffibly
we can, to begin our Studies of the Sci-
cnccs with Books written in that Lan-
guage, which is moft familiar to us. How-
ever able we may be to read with great
Eafe, and Readinefs, Books wrote in a
dead Language
;
yet our Mother Tongue
IS always bell underftood : neither is it
good to divide the Mind by Iharing our
Thoughts between the Attention, that we
ought to have for the Things themfelves
;
and that, which we are oblig'd to give to the
Underllanding of the Terms, in which they
are exprefs'd.
"
The other Sort of Men, I intended to
fcnc by this Tranflation, arc the illite-
rate or com.mon People ; among whom,
it is not at all to be wonder'd at, if wc
find the grofleft Ignorance of the Things,
ccntain'd in this Book ; feeing thofe, whom
I have juft now mentioned, have but very
falfe and confus'd Ideas thereof. I know
by Experience, that even the Term, Laiv
of
Nature, is as -much unknown to them,
as is the Terra jduftralis
incognita
\
for
which Reafon, I thought myfelf oblig'd
to explain it in the Title Page. The Peo-
ple of this Rank, when they heard talk of
the Tranflation I was then upon ; imagin'd
at firft, that it was a Book thick-fet with
the Querks and Subtilties of the Bar ; and
therefore to be left to the Lawyers. I
own 'tis not within the Reach of a Pea-
fant or a Day-Labourer. But how many
Men are there, who without making Learn-
ing their Profeffion, might with Profi-
ciency read fuch a Book as this
\
if they
would but give the fame Attention there-
to, as they do to their common Aifairs
;
or to the Reading of other Books far lefs
ufeful
;
nay, fometimes pernicious. I lliall
not flop here to fhew 'em the Neceflity
they are under of being inftrudlcd, at leaft
to a certain Degree, in the feveral Points
of Morality, Jurifprudence, and Politicks,
treated of in this Work. If they will
take the Pains to read carefully the
'
'J'ar-
rhajiana, they will no longer doubt there-
of; and, if they have their true Intercft
at Heart, they will fpeedily apply them-
felves to the making a proper Ule of thofe
excellent Leflbns, the Author there gives.
I did intend to have faid fomething in
this Place of the
*
Defedls, and Imperfec-
tions in the Generality of Books and Dif-
courfes of Morality ; of the Method to be
obferv'd in treating of, and ftudjing this
important Science
;
of the Conformity of
the Duties, right Reafon teaches us
f'
,
with the Maxims of the Gofpel
;
and of
fome other Things of the like Nature. But,
befides that this Preface is already fpun out
to a very great Length, the Matters I hava
handled having led me further than I ima-
gin'd
;
the Printers allow me not Time e-
nough, to digeft thoroughly what I had
to
*
Tom. 2, TSg 5-+, & f'l-
* S.e what I have faid in a few Words about one of thefc Defefts, in my Preface to the Trait^ du
feu,
printed in
1709,
pag. 17. &feq.
-j- I have fince handled th:s at large in my Treatife
'
Jeu, Lib. i. Cap. j. 1 have no more Lcifure at prefent to undertake
the reft, than \ had, when the firft Edition of this preliminary Difcourfe waspriiited ; which is belides now confiderably in-
larg'd, by fcvcra! Additions in tliis new Edition.
of
the Science
of
MoRALixr.
8;
^
to fay on thofe Heads. I fliall therefore
content myfelf with obferving, in a few
Words, one Thing, which we feem not c-
^nough to refled on. And that is, that
/'Revelation was not given to Men , to
teach them abfolutely and fully all that
they ought to know. On the contrary, it
fuppofes in 'em the Knowledge of fome
certain Things
^
which Knowledge they
either adtually have, or which 'tis intire-
ly in their Power to acquire : And the
Faculty of drawing Confequences from
Principles known, either by the fole Light
of Reafon
;
or by Holy Scripture. T.'he
Exiftence, for Inltance, of a Deity infinite
in Power, Wifdom, and Goodncfs, the fo-
vereign Legiflator, and Author of humane
Society ; is a Principle evident by its
own Light : Therefore we find that the
Sacred Writei's do not fo earneltly ap-
ply themfelves to the eftablilhing of itj if
they fometim.es fpeak of it, 'tis as of
a Thing manifeft to all Mankind. They
even exprefly tell us, that that which
*
may he knozvn
of
God^ was manifeji a-
mciig the Heathe/JSy God havhig Jhewn
it
to them
(
by the Light of Reafon
)
'-,
for
that the itroifible Things
of
him, his
eternal 'Tower and Godhead, -were from
the
Creation
of
the World, clearly feen,
he-
iijg nnderjhcd by his Works
;
fo
that the
Heathens ivcre iv.ei^cufable : Becaufe they
did not give that Attention to 'em, they
ought to have done. Thus too it is with
relped: to the true Principles of Mora-
lity, which are founded on the general
Notions of Religion. The Sacred Wri-
ters affure us, that,
'
when the Nations,
which have not the Law, (written, like
that of Mofes'^
)
do by Nature (that is to
fay, without Revelation
;
)
the 'Things con-
tained in the Law
;
thefe having not the
Law
J
are a Law unto themfelves : And
jhew, that the Commandments
of
the Law
are written in their Hearts
;
their Con-
fciences alfo bearing Witnefs, and their
Thoughts the mean while acctijing or eAcU'
jmg them. The Manner, in which the Sa-
cred Writers propofe the Maxims of Mo-
rality, does alio manifeftly fhcw, that they
did fuppofe, in the Minds of Men, cer-
tain Notions, which, though imperfcft,
are neverthelefs moll true
;
and that they
were fatisfy'd with fupplying what was
therein dcfedive
;
or with retrenching what
ill Habits and Cufloms had perverfely
added thereto. They have not left us a
methodical Syftem
;
they do not exact-
ly define all the Virtues
j
they enter not
into Particularities
;
they only give, as Oc-
cafion reqnir'd, general Precepts
;
from
whence we muft draw many Confequences,
in
order to apply them to the leveral
States and Circumftances
of particular Per-
fons, and Cafes
\
as it
would be cafy to
fliew by many Inftances,
if the Thing
was not evident to all who
read, with
ever fo little Care, the Holy
Scriptures'.
And from thence it appears, to mention
it only by the By ; how far we ought
to rely upon the Expedient of thofe, who,
after having made it their Bulinefs to ruin
and deftroy the Certainty of the Light
of Reafon
;
refer us to the Light
of
Faith,
for the refolving of our Doubts : As if
the Light of Faith did not necelFarily
fuppofe that of Reafon
;
and as if the
Proofs we have of the Truth of thofe
Fadts, on which Revelation is founded;
or of the Senfe and Meaning of a great
many Paflages in Scripture
;
were more
evident, than the Maxims of right Rea-
fon are, with relation to our Duties, and
their true Foundations : not to mention
how far thefe Gentlemen carry Hijiori-
cal 'T^yrrhonifm. On the contrary, 'tis
certain, that the intire Conformity of
the Chrillian Morality with the cleareil
Dictates of right Reafon
;
is one of the
moft convincing Proofs of the Di\ini-
ty of the Chrillian Religion : as has
been acknowledg'd by all, who have
wrote with any Solidity on that Sub-
jedl. We are afjtird, fays a
*
famous
Englijh Divine, that God can never re-
veal any Thing contradiBory to the true
DiBates
of
oar Reafon. Nay, what ought
chiefly to perfuade us, that the Holy Scrip-
tures are the Work
of
God, or
of
the Au-
thor
of
Nature ', is, that that Holy Book
illuftrates , confirms ,
and every vohere lets
in new Light upon the Laws
of
Nature.
And if we duly weigh and confider it,
we Ihall find, that this is the Proof,
which of all others is the moll affeding
;
and the bell proportion'd to the common
Capacities of the Bulk of Mankind. I
have no Defign, in any Refpedt, to dimi-
nifh the Certainty of thofe Fads, that arc
the Foundation of Faith : There is no one
Fadt to be found, in all antient Hiltory, fo
well prov'd, as thefe are found to be; and it
has been very juftly obferv'd, that they afford
when well confider'd, a Demonllration as
incontellable, as thofe of the Mathema-
ticks ; though of another Nature. But it
mull be own'd, that the Generality of Man-
kind are, by their State and Condition of
Life, reduc'd to an Impoffibility of fuf-
ficiently inllruding themfelves, in all that
is necellary, for the apprehending the Force
of this Demonllration. They m.ull under-
Hand feveral Languages, and read with Ap-
plication a great many Volumes
;
which
we well know, they have neither Leifure
nor Means to do. They are therefore ob-
lig'd
*
Rom. i. 19, 10. Seealfb AlsXvii.
27,
28.
'
Rom. ii. 14, ij-.
*
Richnrd CumierUnJ, de teg. Natur. Vroleg. Seft. 27.
88
An
Hiprical
and
Critical
Account, &c.
lia'd to
refer
thcmfelves
therein
to
thofe,
AN^ho
are in a
Condition to make
fuch
il.n-
quiries:
And,
though they may be
able to
draw a
very ftrong
Proof, in
Favour
of the
Gofpel,
from the
Unanimity
which
they
obferve,
as to
this
fundamental
Pomt,
among
all
Chriftians,
though
otherwife
lo
very
much
divided
about
particular
Opi-
nions
Yet
after all it muft be
own d,
that
there
is
ftill
fomething
wanting
to pro-
duce
in 'em an
intire
Conviaion.
But
when
they
come at length
to confider
the
H^van-
gelical
Morality,
and find it
intirely
coii-
N B. The
Thirty
thirdj or laji
SeBion,
'indexes of
Mr.
Barbeyrac'j
French T;
omitted,
as
of
no Vfe
to the
Englifli
formable
both to their true Intcrefts
;
and
to all thofe Principles,
of which every Man
has by
Nature the
Seeds in his own
Heart ; they cannot
then help concluding,
that the Author of it muft neceffarily be,
that very Being, who
has given 'em Life,
and brought 'em into
this World only to
make 'em happy;
provided they will not
be wanting to
themfelves,
but contribute
on their Part, all that
lies in their own
Power, towards the
Attainment ot their
own Felicity.
relating 'wholly to the Text,
Notes, and
anjlation
of
Pufendorf ; is here pir^ofely
Reader^
THE
Chap. I.
O F T H E
LAW of
NATURE
AND
NATIONS.
I
BOOK
I.
Containing
the
preliminary
Parts
of
that
Knowledge.
CHAP.
L
Of the Origin
and Variety of
Moral
Entities,
The Contents
of every Paragraph of the firft
Chapter.
xir. The
Divifions
of fingle Perfons.
xiir. ^nd
Compound.
XIV. Some
Precepts
about
moral
Perfons,
XV. Feigned
Perfons.
XVI. Moral Things.
XVII. The
Divifion
of moial Modes.
xvni. Titles.
XIX. Power.
XX. Right.
XXI. The remaining
moral ^alities.
xxii. Moral
^lantities.
XXIII. How moral Entities
periflj.
I. The IntroduSlion.
II. Man's Life is govern'd by moral Entities.
III. What are moral Entities, what is their
Caufe
and End. i
IV. The Way
of poducing them. Their Infiitii-
tion. Their Operation, and
from whence.
V. Their Divifion.
VI. Their State what.
VII. Their natural and adventitious State.
viii. Peace and War, and how
manifold?
IX. Determinate States.
X. States having
refpecl to Time.
XI. Certain Precepts concerning States.
T was the Bufinefs of
the/;/ and
highcftPhl-
lofophy ", and that by
which alone it could
folly anfwer the De-
fign of its Name, and
Inilitution,
to deliver
the moft
comprehen-
five
Definitions of
Things,
and to rank
them
agreeably under their proper Clafles, fubjoin-
mg the
general Nature and Condition of every
Sort of Beings. Now as the Series of natural
'ihmgs =
hath been fairly enough
regulated by
thofe,
who have hitherto apply'd
themfelves to
the adorning
of that Science, fo it is
evident,
that
Men have not been equally felicitous
about
confli-
tuting
the Entia moralia, ox moral
Entities,
nor
treated
them with thatRefpeft
which
their Digni-
ty
requir'd. Many Authors ft-em never fo
much as
to have thought on them-, others only
touch
them
lightly
over, as idle Fidions, of no ufe or mo-
ment in the World. When, at the fame time, it
was highly expedient, that they
fhould be fully
underfloodby
Mankind,
who are endu'd with the
Power of producing them '
, and through whofe
whole
Lives and Conduds their Force and A61:i-
vity is diffufed. This Refledion obligeth us to
premife
fomewhat on a Part of Knowledge gene-
rally
neglefted -y fo far as fliall feem requifite to il-
Mr. B ARBEYR
AC'S iVOr^^"
o Chap. I.
. i.
he>-s
U)tof
only l^fscience nfF^""'
^'^
"""^
"^".''^"u"^-
"^3'^^"*
P^'"^'^'
becaufe i: comprehends
fas fome Philofo-
alTheoloa" .?L*^^^"""?^^"^e"^'"
?5""al, their chief
Properties, and moft eminent Species; but alfo Natu-
phershold)
not onlv hp Sri /r^""'
^
our Author's
Phdofophia pr.ma. becaufe it comprehends (i
ral
Theololrad
In Account of th^"'"
'"
ff
"'' '^'^ '^'^^ Properties, and moft eminent Specie!
,
_..
I _
A^ u
an Account ot the N.iture ot Spirits
the beginning"
of
th?cha|t'er!
^'^'"^'"
^
f^'J''^'"'
^"'l ^^^^ Entities to the next Paragraph, palTes it over here io
' How this
is
done, fee
! 3. and
4. following.
2
luftrate
2
Of
the
Origin
and tie Variety
o/moral
Entities. B o o k I.
luftrate
our principal
Undertaking
: Efpecially left printed on them. Th.k Properties we now ufually
our
Defini ions of moral Things
Aould, either up- call natural, fmce the Term A^./r. hath been ex-
on account of their Obfcunty,
or of their Novel- tended fo far, as to denote not only the general
tv prove a Stop to the Reader,
who perhaps in Mafs of Things, but
alfotheModes and Aasflow-
7oi" Treaufes hSh
rarely met wit'h the^ike
ing from the
'"--^Force o their^^^^^^^^^^^
Terms And here, if thofe who have been bred up by which is produc d that infinite Vauety ot Mo-
i; the nicer Delicacies ofLetters, fhall difdain our tions which
^^^^T^.^^^^^^
Endeavours of this kind, and
caft a cenforious
our World.
Thofe Things which exercile their
Frown on Words
unknown to
antient Eloquence ;
Operations,
either without any Senfe at a", or with
we on
y
petition them for this Favour, that as we
pure
down-right
Senfe or with fuch as is affifted
often pirdon the
Impertinencies
of their over-fcru-
by ver)^ inipertea
Reflection, are gtiided by the
mloufExaanefs fo they
would be pleas'd to gnmt
fole Inlhna of Nature, and a.^ unable to govern
S the ?;Terat on^^^^^^^
be Polit?
", whilll we their Adion^by
any Rules or Modes of their own
profefs a clofer Regard to the
flrid Severity of
Inventio.^ But Man, who befides h.s excellent
Thngs, thfn to diemerior
Ornaments of Speech. Form and moft accurate
Contexture of Body, fit-
For fo'w to exprefs
ourfelves
with more Advan- ting him for the nobleft and the qu.ckeft Offices of
Le about thefe Matters, we are yet to feek >
un-
Life and Motion
,
is endud %yith afingular Light
efby tediou ChS
le would leave
of Underftanding ,
by the Help of which he is
hem more obfcure and more
perplex'd than we
able moft exaftly to comprehend and to compare
found Siem. Againft the Charge of Novelty ^ully
Things, to gather the Knowledge of Obfcunties
himfelf will be^our
Advocate : Ncv Nances (fays from Points already
fettled and to judge of the
^hc{ar7tok,pplfdto
new Things, nor is this to be
Agreement which Matters bear to each other
>
and
^^fJlly^Man of
ordinc^yKno'.kdge^.vhen
hath alfo the Liberty of exerting fufpending or
/.. confers, thati ever Art andCraft,
not vulgar-
moderating ^'sAftions without be,n^^^^^
h underdood there is a Variety of
Terms
coined
for
any neceflary Courie and Method
.
Man, we lay,
L;Ji1::^.k
And thenVing
Exam/les
i^
J^her
invefted with the
l-^^^^J^-^^l^^^l
in the liberal and mechanic
Arts, he
concludes j
and applying new Helps to each Faculty, for die
APhtlofopher of
all Men bath an efpecial
Right to
more eafy Regulation ^ '^^.
J^^^^^^^^^^^^^
^o
this PriJlege
;
for
Philofophy
is the Art
of
Life,
contiderwhatiuimberlefs
Modes
^f^J^J^}^^^
and he that would undertake to explain its Rules, can- been
introduced for the Affiftance ofthe ^^jde^P^^^
not, from the common
Currency of
Words, findStock
ing, and for preventing the Confufion jvh.chm.ghc
enough to a>^cr his Occafions
'
'
. But he that can
arUe from the
undiftinguifh d Vaftnefs of its Ob-
upon no account digeft fuch
Harflinefs of St.le, is
jefts, is the Pro^^nce of another Sort of Enqui-
leVt at his Liberty to turn out of thefe rougher
f^-OurBufinefsis,
to declare, how, ch^fly for
Trafts, and to pafs immediately to aField of more
the Diredion of the WM, a cemm Kind of At-
Smoothnefs and Pleafure
tributes have been impos'd on Thongs, and their
II All the Beings
^
which compofe this Uni-
natural
Motions
>
whence there fprings up a pecu-
verfe, as they confift of fuch
Principles as were by
liar Agreement and Conveniency in the Adions of
the moft wile Creator temper'd and fitted for the
Mankind, a grateful Order and Comdinds for the
producing of each particular
EfTence^ fo they have
Ornament of human Life^ And d.efe Attnbu
?very one of them their particular
Properttes, ari-
are call'd moral Entttm, becaufe the Manms and
fing from the Difpofition and Aptitude of their
the Actions of Men are judg d and temper d with
Subftance, and exerting
themfelves in agreeable
relation to them
5
and do hence
a
Jume a Face and
Adions,
according to that Portion of Strength
Habit different from the horrid Stupidity of the
which their Divine Author and Founder hath im-
dumb Creation.
The Author in his laft Editions
adds thefe Quotations here.
"
We find Manilius ufing the like Excufe :
Lib. iii. jt. 39.
CT-f
Ornari res
,ffa
negat, connnta doceri.
And though feme Words of foreign Stamp appear.
Et
fi
qua externa referantur r,om,na l.ngua.
Seem h^-^^^. ""tun d,
"""^7
^^f./'^y
^^^^ .
.
Hoc oper,,, non vJs er.t : non omnm
fle^
Th,s .s the SuhjecTs not the >;r s. Fault
:
Polfunt, ^
propria melm. fub
voce rwuntur.
Some thmgs are ft.ff. and w>ll not yield to Thought.
" ' ^
'^
*
I muft be plain : and if our Art hath found
Nor hope fweet Verfe and curious Turns to find :
Expreffions proper, it neglefts the Sound.
^^
^^^^^^
I'll leave thy Partions, and inftrud thy Mind.
l- l i-ff C.^u tC,
To thejar^epurpofe, K. Lu c re T. Lib. i. ;^. .37-
C7 H o r a T. Art. Poet.
:fi ^^%.
Mkftfea.s
thus.
i..Si
fort: necejfe eft
None may to us that L.beiy retufe
Indkiis monflrare recem.bus abd.ta rerum,
Suppofing that it prudently be none.
tmgere tiniiuth mn exaud.ta Cetheg.s
fc,perque Ucebn
Contintet : dabiturque licenna fumpta
prudenter.
.-
^ j ,..,
^
ThusinEnglilh:
Stgnatum pr.fentenoa
produerenomen.
If to exprefs Things new fo'und out, we ufe
It ever w-^^.
jnd e er wi
1
l"vfv|^.be
New Words, un?o the Antients never known.
To ufe the Words forg d by Neceflity.
A/r. Barb.
NOtESon^.i,
11.
'
Cicero maintains it to be a childifhThin? to fpeak elegantly of Matters
philofophical: In fuch Cafes to fpeak plam .s
fufficient, and learned Men have no other Intent, but to exprefs themfelves
clearly. i.ic.de]in. ' "'
^-
'
, . ,
-
I^efin.
l.iii.c. ,. The following Part of this Difcourfe plainly Ihews us. that he l^peaks exprefly of fuch Phi ofophersas
treat of moral knowledge, becauf^ he diftinguifhes them fi-om Logicians.
Natural Philofophers. Geometnc^ns crr^
'Our Author infers f?om thefe Quotations." that 'tis as lawful forhim
as thefe antient Poets, to b^owfomeTe ms
from other Languages, to exprefs himfelf in this Work, f.nce he can find
none proper '"^s own, and he
^
.snootier
Way to render liimfelf intelWible. And this might have been a good
Excufe for tfie antient Schoolmen, .1
they had
not carry'd this Liberty too ^r, and made nfe ot Terms wholly barbarous.
:,.,.,, ,j r-
4
By Beings our Author means the Subftances of Things, with all their Properties and Qualities, mteinal and exter-
nal, as appears by what follows.
'
See Note 2. upon
. 5. of this Chapter.
*
Men and their Aftions are here underftood, as . 16, thews.
^
Chap. 1.0/
the Origin and the Variety
of
moral
Entities,
5
III. We may define our moralEntities to be cer- human Condufl , as
fuperior
to brutal in being
tain
Modesfuper
added to natural Things andMotions capable of regular Beauty and
Grace
; that thus in
hy
underflanding
Beings^
chiefly for
the guiding and fo inconftant a Subject, as the
Mot'ions
of Mens
tempering the Freedom
of
voluntary Jctions^ and
for
Minds, an agreeable Elegance
and
Harmony
the
procuring
of
a decent Regularity in the Method
of
might be produc'd.
'
Life.
We call them Modes., becaufe we conceive IV. As the original Way of producino-
natural
Ens^ or Being., in general, to be more conveniently Entities is by Creation, fo the Manner'of
ham-
divided at large into
Suhfiance and
' Mode., than in- ing moral Entities cannot be better exprefled
than
to Suhflame and Accident. And as Mode is cdn- by the Term of
'
Impofition. For thefe do
not
tradirtinguiih'd to
Subflancc.,_ fo it is manifcll:, that proceed from Principles ingrafted in the Subifance
moral Entities have no Self-fubfiftcnce,
but are of Things, but are added, at the Pleafure of in-
founded in Subftances and in their Motions, and do telligent Creatures, to
'
Beings already
perfeft in
only affeft them after a certain manner. OiModes., their Nature, and to the real Produ6Hons
of thofe
'fome flow, as it were, naturally from the Things Beings
>
and confequently obtain their
'
whole
themfelves}
others are fuperadded by the Inter- Exiiknce from the Determination of their Au-
vention of an intelligent Power. For whatever is thors. The fame Power affigns them fuch -.ayl
endu'd with Underflanding, can, from the reflex fuch Effefts, which, when it fees convenient, it.
Knowledge of Thing?, and from comparing them can deftroy
\
without caufing any natural Altera-
with one another, form fuch Notions as may prove tion in the Subjeft to which they were apply'd.
very ferviceable in the Diiedlion of an agreeable Hence their Force and Ability of Operation doth
and confident Faculty. Moral Entities :ire of this no: confill in this, that they can by their inter-
kind; the Original of which is juftly to be referr'd nal Efficacy produce any natural Motion or
to Almighty God, who would not that Men Change in Things, without the Intenxntion ot
ihould pals their Life like Beads, Avithout Culture other Caufes
j
but partly in fhewing Men how
and without Rule; but that they and their Aftions they ought to govern their Freedom of Attions^
fhould be moderated by fettled Maxims andPrinci- and chiefly in making them capable of receiving
pies; which could not be efi-ected without the Ap- Benefit or Injury, and of excrciling feveral Works
plication of fuch Terms and Notions. But the towards other Perfons, with fome peculiar Et-
greateft Part of them were afterwards added at feci:
'.
And the Efficacy of moral Entities, prc-
the Pleafure of Men, as they found it expedient duc'd by Almighty God, flows from this Prin-
to bring them in, for the polilliing and the metho- ciple, That he, by his Right of Creation,
hath
dizing of common Life. And from hence the the Power of circumfcribing, wnthin proper Li-
End of them is plainly to be difcovefd
,
which is mits, that Liberty ofWill with which he indulg'd
not, like that of natural Beings, the Perfection Mankind, and when it grows refractory,
ofrurn-
ofthe Univerfe, but the particular Perfcclion of ing it which way foever he pleafeth, by
theForce
Mr. Barb. NOTES on
i.
tii, iv.
Our Author, witlioiit doubt, intends by this Diftinclion td make a Difference between Modes properly fo call'd, which
are not to be fep.irated from their Subftance, and have no Evidence by themfelves; and fuch, as being real Subftances of
themfelves, can have an independent E.viftence from the Subjed to which they are jovned. For the Term A/fl(/c, in its
true Signification, is oppofed to Suhfiance, and imports only the Modification, or Manner ofBeing. It is riot the fame with
Accident.
For Inftancc, The Figure of a Body, which is really inherent in it ; and thcveiofccMcd an Intcrn.il Mode.
' Such are moral Entitle;, which are not in tiie Things themfelves, but depend upon the Operation of the Mind; and
are therefore called External Modes, becaufe they are nothing clfe but certain Relations of Objcfts or Ideas one to an-
other, Se^The Art
of
Thinking, 1. i. c. ii. andUv. Lo cki's HjimanUnrlerftantiin^, !. ii. c. xxviii.
* This Word is fometimes ufed in Latin, to fignify theEftabHfhment of a Man in an Office, as Confulcreatuseft,
He
Was made Conful.
''
5 The French renders it Inftitution, which being ufed in Englifli for every Thing that proceeds from mere human Invention
and Appointment, in Oppofition to what proceeds from Nature, may be better ufed iiere.
* We muftnot imagine, that the E.viftence of mor.al Entities is always poftcrior to the Exiftcnce of the Thinos they are
annexed to. 'Tis true, in refpeft of fuch as are ofhuman Inftitution only, but' not of fuch as are ofdivine, becaufe thev are
appropriated to Man from the Moment of his Creation, ofwhich Sort are all natural Obligations, ofwhich our Author treats,
j.
m. c iv.f. :;. andthe State of comple.it Nature, of which he fpe.iks
J. 7. So that there'is no Moment, in which a Man may
be conceived free from all moral Entities. Neverthelefs, as moral Entities, which are born with a Man, are not lefs true
out ot a Work of this Author's, call'd A Sfecimen
of the Controverfies w'.th Pufendorf about his Rkht of Nature. &c
f. 111. .10.
^
J
'
.
_
' To obviate all Objeftions againft this Expreflion ofour Author, we ought to obferve, that he mak'es two forts of Inftitu-
tion
:
I. Purely arbitrary.
2. Another, which has a Foundation in the Thin;^ itfelf, and which is a neceflary Confsquent of
What is before freely refolved, and can't beoppofed orcomradifted : As f'or Example, an Architect may or may not build
a Palace; but when he has refolved to do it, hemuft neceflarilv order the Materials in a clear different Manner than if he
were to build a Cottage
;
and he'd pafs for a Fool, if, after he iui'd built a Cottage, he fhould affirm it to be a Palace : Vet
this hinders not, but the ordering ot the Materials proceeds from the Contrivance and Will ofthe Architecf. In like man-
ner It was altogether free for God either to create Man, or not ; but after he had refolved to fend iiim into the World, it was
neceliary
that he (hould lay fuch Obligations on him, as became a rational and fociable Creature
; fo that if the Laws ofNa-
ture^epend
originally on the Divine Inftitution, they are uot a pure arbitrary Conftituiion, as the ceremonial Laws ^iven to
nie jeiis w-ere
;
but an Inftitution founded upon the very Nature ofMan, and the Wifdom ofG o d, wlio can't will The End,
but
hemuft at the fame time will the Means to the End. Neverthelefs, though the Will of G o d can't be (eparated from
nis
^oodnefs
and Wifdom, yet we impute the Eftablifhment of the Laws of Nature chiefly to the Divine Will, becaufe it is
not only
the
Principle of all Divine Aftions, but becaufe G O D's Wifdom and Goodnefs are Attributes
intirely free, and fo
can t be
conceived
without the Will. Thefe txpofitions are taken from this Author's Works, viz. Specitn. Conirtnerf cap.
v.
. 9. Dijfert.
Acad.
p. 743. Spud. Controv. cap. iii.
J. 9.
^
^
See the
laft Paragraph ofthis Chapter.
-kL^'^ l"^T
"^""o"^ Entities we have a Right to do ourfelves, or require of others, certain Things ; orrather
we are
DJi^ea to do
them,
or fufFer others to do them. See Note ^. in the next Paragraph,
Of
the
Origin and the Variety
o/moral
Entities. Bo ok I.
of
fome
threatned Evil : Men likewlfe were im-
powered to give a Force to their Inventions of
the fame kind, by
threatning fome Inconvenience,
which their Strength was able to make good a-
gainfl: thofe who fhould not aft conformably to
tliem.
V. Since then moral
Entities V7tre mftituted for
the Regulation of Mens Lives
J
to which End it
is neceflary, that thofe who are to obferve this
Rule iliould bear fome
fettled Relations to one an-
other, ilrould govern their Actions by a fixed Me-
thod} and, laftly, ihould zt with determinate Re-
fpecls and Titles about fuch Goods and Pofiefllons
as the Occafions of Life require ; we may hence con-
ceive them to be principally
inherent, ;?)y?,
milleri;
fecondly,
in the^ff/o;/;
ofMen; and, thirdly, after a
(brt, likewife
', in77;/>/^^,
which Nature, either by
her own Strength , or with the Affiftance of hu-
man Induftry, may produce.
'
But though it would
be no Abfurdity to ftate
their Divifion accordmg
to thefe three Heads or Subjefts, yet it feems a
more exaft Method to make the ClaJTes of natural
Entities our Patterns in digefting the moral
j
not
only becaufe the former have more engag'd the
Studies of philofophical
Men, and being compar'd
with the latter , caft a
confiderable Share of their
own Light and Evidence upon them -, but like-
wife becaufe our
Underftandings are fo immers'd
in corporeal Images, as to be hardly capable of ap-
prehending iuch moral Beings any otherwife than
by their Analogy to thofe of Nature.
VI. Now though 'ffioral Entities do not lubfift
of themfelves,
and for that Reafon ought not, in
general, to be rank'd under theClafs oi Subfiance
s
,
but of Modes
;
yet we find many of them to be
conceiv'd in the Manner of Subilanccs, becaufe
other moral Things feem to be immediately found-
ed in them, jull as Quantities and Qualities inhere
in the real Subllance of Bodies. ^Farther, as na-
tural Subftances
fuppofe fome Kind oi Space
^
in
which they fix their Exiftence, and exercile their
Motions;
'
fo in AUufion to thefe, moral Pcrfons
are efpecially faid to be in fome State, which in
like manner contains them, and in which they per-
form their
Operations. Hence nt. State may not im-
properly be defin'd a moral Entity framed and ta-
ken up on account
of
the Analogy it hears to Space.
And as Space feems no principal and original Be-
ing, but is devis'd, to be, as it were, fpread under
other Things, to hold and to fuftain them in fome
particular manner ; fo the feveral Sates were not
introduc'd for their own Sakes, but to make a Field
for
'
moral Perfons to exift in. Yet there is in-
deed this Difference
between .y/^r/f and Space, that
the latter is a kind of
immoveable Subftance, ex-
tended primarily, and of it felf, and which might
Hill fubfilt, if all the natural Things, which now
fill ir, were remov'd: 'Qnt States (and all other tno-
ral Beings,
conCidefd formally
as fuch) obtain no
higher Condition than that oiModes or Attributes}
fo that upon
taking away the Perfons fuppos'd to
be in fuch a
State, the State it felf is in manifefl:
Danger of lofing its own Exillence.
VII. Thereare two Sorts of^/^^rfJ
j
one accord-
ing to which
Things are faid to be in a Place
^
which the
Logicians call Ubi, as here, there, cc.
and another
according to which they are pro-
nounc'd to be in Time,
which they call ^lando,
as Tefterday, to Day, to Morrow, &c. In the fame
manner we may
conceive a double Notion of
State; one which
denotes a moral Ubi, and bears
an Analogy to Place ; another which includes a
Refpeft to Time,
fignifying the Application of
fome moral Effcd to Pcrions exifting in fuch a
Time. The former State, which hath a Relation
to Place, may be confider'd either undeterminatc-
ly, as it refults only from
*
moral Qualities
; or
determinately, as it fuppofcth a Dependence on
moral Quantities, and on Comparifon. The State
of Man confider'd
undeterminately, is either -
turaloY
'
ad'-jentitioHS. We ufe the Word natw
m/, not becaufe fuch ^ State flows from the internal
Principles of human Eflcnce, antecedent to the
Power of Impofition ;
but becaufe it was im-
pos'dby God himfelf, not by Man, and affefts
us immediately upon our Nativity. We are wonc
to confider the natural State of Man , either abfo'
lutely, or "with relation to other Men: The for-
mer Notion, till we can find a more convenient
Term, we may exprefs by the Word Humanity, im-
porting that Condition in which Man is plac'd by
his Creator, who hath been pleas'd to endue him
with Excellencies and Advantages in a high De-
gree above all other animate Beings'. Ofwhich
State this Principle is a direft Confequcnce, That
Man ought to be a Creature acknowledging and
worfhipping the Divine Author, and admiring his
Works; and that 'tis expefted he fhould main-
tain a Courfe of Life for different from that of
Brutes. To this State is oppos'd the Life and the
Condition of irrational Animals.
Since then the very being a Man is a State o-
bliging to certain Duties, and giving a Title to
certain Rights, it cannot be out of the way to con-
fider the precife Point of Time at which particu-
lar Perfons may be faid to enter on fuch a State
:
And this we conceive ought to be fix'd on the ve-
ry firft Moment when any one may be truly call'd
'CicERoOff. i.c.ii.-Nature hath given US a Perfin
and Charaller to fujlain, in a DegmofExcellence far above any other
Creatures.
Mr. Barb. NO tE S on . v, vi, vii,
Seewhatthe Author fays
5. 16.
, ,. . ^, r
1
-r j
r n
All moral Entities may be reduced to two He.ids : i. Right, i. Obligation. Thefe are the Foundation of .ill Mo-
talitv which confirts either in Aftions, or Perfons, which have Right to aft in fuch .t Manner, or are under an Obhg.ntjon
rodoit This Risjht and Obligation are Relatives, whichalw.iys reciprocally
fuppofe each other, as they refer todiffe-
Tent Perfons
See^Lib.m.c.tpw . i. In fine, as all Right, and every Obligation
depends on the Authority of a Superior,
who regulates by Laws the Aftions of all that are fubjeft to him, natural Order requires, that we treat firft of human
Adionst their Principles, and different Kinds ;
and then of a Law in general ;
after which the Explication of moral En-
tities, which are founded on Laws, will properly follow,
n ,ya. r^a: t>-
As for Example, When a Prince, in favour to, or to reward any of his Subiefts,
eftabhfhcs anOftice or Dignity.
Which he would not elfe have done, nor was otherwife neceffary, but purely to advance the Honour of him tor whom
it was eftAblifhcd: Such are all honorary Employments.
-*
From the 17 to the
23 .
ofthis Chapter, the Author fhews what he means by wor^igi<^"
and g4;f;.
iual Alliance, mav alfo be looked upon as an inteftine War, as Mr. Hertius there obferves.
_
1 ..
4
When this fort of War is extinguilbed at its f^rft Rife, viz. without any regular Preparations on cither Side, it
is a Sedition when Subjefts take up Arms unjuflly againft their Sovereign, it is a Rebellion. In Democracies and A-
rifiocracies,
when the People and the Magiftrates make two Parties, and ufe Acts of Hoftility one againft the other,
this is properlv call'd a Civil War. Element. Jurifprud. Univerf. p.
i?.
_.
5
See Mr Daum at'j Publick Right, Lib. i. Tit. ix. Seff. i. and what our Author fays, /. viii. <-. iv.
'
More forcible ]
The Trench Tranflator renders the Words, validicra jura,
more condderable, i.e. of greater Vali-
dity and Certainty
for the Honour of an Employ does not depend upon the Manner of obtaining it, but upon ths
Dianity and Privileges which it confers on fuch as are invei^ed with it. And fo this feems the better Tranflation.
And fo we fay^for Example, an Old General, an Old Soldier, a Young
Apprentice, C7r.
9 See Lib. iii. Ch. vi. . 4- and Lib. iv. Ch. iv.
. i?.
. r
The Roman Law declares fuch as are in their Non-age, or not far from it, capable of Deceit. Igitur dolt non ca-
paces, lit admodum impiiberes excufati funt. Vigeft.
iii. xlvii. Tit, xu. De Sefiilchro violate. Leg. in.
.
i.
See
CujAsV Obfervations, Lib. vi. Ch. xxii. v T>igefi. Lib. xlvii. Til. viii. De vi bonoriim raptorum. Leg. 11. .19.
">
The Author will explain a little lower^ viz. . 19- what he means by qiialities aClne and pajj[ive.
Nor
Chap.
J.
Of
the Origin and the
Variety
of
moral Entities.
7
Nor muft we forget to hint, that as one Peifon
may be at the fame time engag'd in feveral States^
provided that the Obligations of thofe States do
not interfere with one another
>
To theObligatioriS
adhering to one particular State, may, according
to difl'ercnt Parts, be deriv'd from different Prin-
ciples. And therefore he that only collects the
Obligations flowing from a fingle Principle, and
omits the i-efl, doth not prefcntly form a diitinft
State incapable of other Obligations befides thofe
which he hath taken notice of. Thus he that ga-
thers feveral Parts of the Office of Priells purely
from the Holy Scriptures, doth not in the leait
deny, but that they are likewife bound to fuch
Performances as the Conllitutions of particular Go-
vernments fhall farther enjoyn. So we that pro-
fefs in this Work to treat only of thofe Duties of
Men, which
'
the Light of Reafon fhews to be
neceflary, do not at all pretend that there ever
was, or now is, or ought to be, fuch a State in
which t\\o(c Obligations only ihould prevail, exclu-
flve of all others. Nay, it would be almoft a need-
lefs Difquifition to fearch, whether fuch a State of
Men was once fo much as likely to have been in
the World. For the Aflertion, which fome fo
confidently lay down, could never yet be clearly
made out ;
That
if Man had continued in his pri-
mitive Holinefs, the Law
of
Nature alone, as it
governed him at
firft, fo
floould have continued its
Sway, except that one or two
^
pofttive
Commands
might probably have been added to it. We may juft-
ly queftion, whether Mankind, although untaint-
ed with Sin, fhould have always pafs'd their Time
intheCompaisof a fingle Garden, fuilaining them-
lelves with the Fruits of fpontancous Growth, and
not have cultivated and adorn'd their Ways of
living, by induftrious Management, and by Va-
riety of Arts and Inventions. For what Prejudice
could it have been to their original Innocence and
Integrity, if, upon the Multiplication of human
Race, they had divided into feparate Societies in
the Forms of Commonwealths ? And what No-
tion can we frame of fuch Societies, without
the Addition oi pofttive
Laws and Conftitutions?
XII. Moral Entities,
fram'd
with Analogy to
Subftances, are call'd moral
Perfons '
; which are
either particular Men^ or feveral join'd in one
Body by fome moral Tie, confider'd
with the
State and Office which they maintain in com-
mon Life. Moral Perfons are either Simple,
or
Compound. The Simple, according to the Diffe-
rence of their Polls and Employments, are either
Publick, or Privates as their Duty is immediately
apply'd, either to the Benefit of civil Society, or
to the particular Advantage of
'
every private
Member. Publick Perfons, by the general Cuftom
of theChriftian World, are divided into Cm/ and
Ecckfaf.ical. The former
''
are either Pfmcipal, or
Inferior. Oi principal Perfons, fome adminifter
Affiiirs with a fupreme Power
;
others either exe-
cute fome Part of the Adminillration by Commii-
fion from the fupreme Power, who are properly
call'd
Magifirates, or elfe affiil with their Advice
and Coiuilei in the Management of the Common-
wealth. The Inferior perform a lefs noble Ser-
vice to the Community, and a<5t under the Ala-
gijlrates, with refped: to their publick Capacity;
In War the Officers, whether of higher or lower
Commiffions, anfwer to Magiftrates, and are af-
fifted, in Subordination, by the common Soldiers.
We reckon Men of that Profeffion amongft pub-
lick Perlbns, in as much as they are authoriz'd by
the fupreme Power, either immediately or medi-
ately, to bear Arms in the Service of the Com-
monwealth.
There is Ukewife a peculiar Species of politick
Perfons, which we may llile Reprefentatives, be-
caufe they fuftain the Charafter of other Perfons :
fuch as, being invefted with the Power and Au-
thority of adting by another, do in his room tranf-
aft Bufinei's with the fame Force and Validity, as
if he himfelf had managed it. Of this Kind are
Legates, Ficars,
Burgeffcs, &c.
A new Diftinction hath been brought in of late,
between Miniflers
'
of a reprefentative Chara-
Gtex, who are Embaffadors properly fo call'd
j and
The Roman Laivyers ordinarily reftram the wofiPerfon to thofe that are Free : and rank their Slaves
amon^Jl the Goods
they
fojfejfed.
Mr. Bakb. NO tES m . xii.
* InOppofition to Revelation, and particular Rules of the Civil Laws of every Country, from whence arife three di-
ftincl Sciences, i;;z. N.itural Right, which is common to all Men without Exception ; Civil Right, which is or mav be dif-
ferent according to the Intereft of every State; and Moral Theology. See the Author's Abridgment of the Duties of a
Man and Citizen. Prif. . 2.
* It is not known, whofe Words thefe are, which our Author cenfures. As to the Qiicftion itfelf, 'tis one of the
mod impertinent; for our Author elfewhere acknowledges, that is is very hard to imagine, how a Propriety ofGoods
and Government, on which our whole Lives now are fpent, could have Place in our State of Integrity. See his 5;>if/7.
Jur.Nat.c.2. .9.
and his Comment, fuper. invert. Vener. Lipf. pullo.
p. 386. Neverthelefs fome others have treated fe-
rioufly upon this frivolous Queftion; as Ur.ThomaJius
Inft. Jurifpr.Dtvin. Lib.i. f. 2. . 37,
38. and Mr. Hirtius in his
Etem. priid. Civil. I. i. ieci.
3. . <,.
There is another Reafon, why they are call'd fo, and that is, that they are fettled in publick Employs by the Au-
thority of a civil Society, or of them that govern it. Whereas private Employments depend upon the Will and Chioce
of every Man, unlefs the State will interpofe and confer them.
* Why does he not define what is meant by Perfons political, or civil? They are fuch, as (for fo our Author him-
felf fpeaks,;OT. ;^r;y^r</. Uni^^r/:/l.
23. ) adminifter by publick Authority thofe Affairs which have a particular regard
to civil Society, confidered as fuch
;
whereas Ecclefiafticks are to take care of Matters of Religion only. Thefe Taft,
though they ought to be fubjeft to their Sovereigns in temporal and civil Matters at all times, yet may and ought alfo
to be independent, as to Spirituals, provided they keep within their Bounds, and do not fet up any other Religion be-
fides the eftablithed : And the Reafon of it is, that as Religion is a Thing in its own Nature free, at leaft, "direftly,
and can't be fuppofed to be admitted into civil Society for no End, every ecclefiaftical Society may do what it judges
for the Intereft of Religion, provided it encroach not upon any Prerogative of the Civil Power. See what i"hall be
faid hereafter, Li^. vii. ch.^. . 11. Note 2. Neverthelefs, I do not allert anv Thing here, which may be a Founda-
tion for any Principles contrary to the
Enpifli Autlior,
Of
the Rights
of
the Chnftian Church.
The Author here quotes the Work of Mr. Wicifuefort, entituled. The Emiajfador, and his Office, printed in his Time
without
a Name, and under a different Title, viz.. Memoirs concerning Embaffadors , but lately publillied, with many Ad-
ditions, as above,
i> ji '
'
t 1
Miniflers
8
Of
the
Origin and the Variety
of
moral Entities. Book!
Minifters of the fecond Order, as Envoys or Refi-
dents^
who do not, hke the former, exprefs the
full Power and Grandeur of their Mafters
'.
With refemblance to thefe publick Reprefenta-
tives, Tutors and Guardians are concern'd for pri-
vate Perfons, as they manage Affairs in behalf of
Pupils or Minors given them in Charge.
On this Point Mr. Hohbs ' is miftaken, when he
will have it frequently to happen in Communities,
that a Man fiall
bear the Pcrfon of
an inanimate
Things
which therefore is it
felf
not properly a Per-
fin i
as fuppofe of
a Churchy an Hojpital^ a Bridge,
dec. For there appears no Neceflity of introducmg
a FiSiion of Law, to conftitute Perfons by whom
any of thefe iTiould be reprelented. It being more
natural to fay in plain Terms, that particular Men
are impower'd by the Community, to colleft the
Revenue, fettled for the
preferiing of fuch Places,
or Things, and to carry on and fuftain any Suits
that {hall arife on thofe Accounts.
The Variety and Divifion o? ccckfmjiical Perfons
is obvious to every Man, according to the parti-
cular Religion in which he hath been bred up.
Nor can any Man of Letters be at a lofs to appre-
hend what Kinds of Perfons are founded in the
Management of Schools.
Private Perfons are of a vaft Latitude and Ex-
tent
;
yet their principal Differences may be taken,
firfi, from their Bufinefs, Craft, or Trade, which
imploys their Pains, and exhibits their Livelihood:
and thefe are, either creditable and genteel, or
fuch as feem to carry in them more Bafenefs, or
Drudgery. Secondly, from the Condition, or, as
we may fay, the moral Situation which any one
obtains in a Community 5
in which refpeft one is
a Citizen, with more or fewer Privileges
;
another
a Sojourner, and a third a Stranger. Thirdly, from
the Place in a Family, upon which account one is
faid to be a Houfliolder, which may comprehend
the Perfon of a Husband, a Father, and a Mafler;
another is call'd a Wife, another a Son, another a
Servant : Thefe may pafs for the ordinary Mem-
bers of a Family; the extraordinary arc Guefts and
Lodgers. Fourthly, upon account of Race and
Birth
;
whence anfe Nobles (divided into diffe-
rent Degrees in different Countries) znd Plebeians.
Fifthly, from Sex and Age, whence com*the Dif-
ferences of Man and Woman, and the Diflinftions
founded in Childhood, Youth, Manhood, and
Old-Age
*
. For though the Diverfity of Sex,
and Number of Years, are not of external Impo-
fition, yet in the Method of a focial Life, they in-
volve fome kind of moral Notion
;
in as much as
diflferent Aftions arc becoming in different Sexes,
and Perfons of various
Ages require a various
Treatment and ^'Application.
XIII. A Compound moral Perfon is then conftitu-
ted, when feveral individual Men are fo united to-
gether, that what thty^ will or al by virtue of that
Union, is efleem'd a lingle Will, and a fingle Act,
and no more. And this is fuppofed to be done,
when the particular Members fubmit their Wills
to the Will of one Man, or of one Council, in
fuch a manner as to acknowledge, and to defire
others to acknowledge, for the common Aft and
Determination of them all, whatever that Man,
or that Council fhall decree or perform, in Mat-
ters which properly
concern fuch an Union, and
are agreeable to the End and the Intention of it.
Hence it comes to pafs, that whereas in other
Cafes, when many Men will or aSl any Thing, we
conceive fo many diflincl Wills and A6ts as there
are in number natural Perfons, or human Indivi-
duals
;
yet when they clofe, and form a compound,
Perfon, they are fuppofed to have but a fingle Will,
and every Aftion which they perform is conllrued
as one only, although a Number of natural Indi-
viduals concurs in its Production. And hence fuch
a compound Perfon doth and ought to obtain fbme
particular Goods and Rights, which none of the
Members, in their private and feparate Quality,
can claim or arrogate to themfelves
"*.
Here aHbwe muft remark, that as natural Bodies
continue the fame,
although in length of Time, by
flow and filent degrees they receive a confiderable
Alteration from the various Acceflions and Defer-
tions of their Particles ; fo by the particular Suc-
ceffion of Individuals, the Identity of the compound
Perfon is not injur'd ;
unlefs at one and the fame
time fuch a Change ihould arrive, as would entire-
ly take away the Nature and Conftitution of that
united Body. On which Point we fhall be more
large in
'
another Part of our Work.
Compound moral Perfons, or Societies, may, after
the manner oifngle Perfons, be divided into Pub-
lick and Private. And the former again are fub-
dWidcd'mio Sacred tindiCivil. Oilht Sacred, fome
we may call general, as is the CathoUck Church,
and likewile any particular Church, whether com-
prehended within the Bounds of fuch a Nation, or
diftinguifh'd from others by publick Forms ofCon-
feflion. Others Peculiar, as are Councils, Synods,
Confiftories, Presbyteries, ^c. Civil Societies are
alfo either general, as -x Commonwealth, of which
there are many Species, as fimple, compound, re-
gular, and irregular; or particular, as a Senate, an
Order of Knights, a Tribe, a Parliament, 6?r.
Armies may be called military Societies, and confifl
*Leviath. cap. 16.
Mr. Bakb. NOTES on .
xii, xiii.
'
This is a vifible Miftake inouv Author, who has aflened the contrary elfewhere, and ought to have beencorrcled
by Mv.Hirtms, who put out the Frankfort Edition in 1706 ; for there is great reafon to rejeft the Sentiments of fuch
Men {as Charles Pafcal, Richard Zouthms, &c.) who affirm that Emballadors,
properly fo called, are as their Mafter him-
ielf, who fends them ; infoinuch, that the Prince or State, to whom they are fent, ought to give them the fame Ho-
nour they would to their Mafter. The Charafter of an Emball^tdor certainly gives neither the Dignity nor Title of a
Sovereign, and fuch a Miniftcr may not pretend, becaufe his Mafter has a Superiority above another Prince, that he
muft perfonally be preferred before him. See what our Author fays. Lib. iii. ch. 4. . 20.
*
In the Civil Law fome other Diftinftions are m.ide among Perfons from
their Age and Sex. Sec Mr. Dau mat's
Civil Laivs in their natural Order, Lib. i. Tit. 11. SeCl. 1.
of
the Preliminaries; and the Interpreters upon the Digcfl. Lib. i.
Tit. V. De (latu Hominmn.
*
Ages is not in the Original, but the Manner of Reafoning, and Beginning of the Sentence require the Addition of
It, as our Author himfelf does in his Elements
Jurifpr. XJniverf.
p. z%.
* As for Example, No private Perfon hath a Right to punilh Criminals, although the Right to dg it proceeds
Origi-
nally from private Perfons ; the Sovereign only has that Power.
5 See Lib. viii. Ch. XII.
of
C H A p. L
Of
the Origin and the Variety
of moral Entities.
9
of
Regiments,
Troops, Cohorts, Companies, have obferv'd, that the
Splendor
of MensDignity
?r.
hath frequently a ftrong Influence
on their Aftions,
Amonu,{k
private Societies we do not only reckon and that many Men have made veiy
diffei-enc Fi-
Families^^huz all the
^
Colleges, or Corporations gures in a publicic, and in a private
Station.
But
in a Kingdom, or a City, as thofe of the Mer- we may reckon thefeFanfiesamongft the
common
chants, of the Artificers, and the like. To make Deceptions of Sight, occafion'd by gaudy
Pomp
ammute Catalogue of every Species we think un- and Shew. The Cafe being much the fame,
as
neceflaiy to our prefent Defign. when Country People imagine the Name andTi-
XIV. Concerning the Nature oifimpk moral tic of Doctor to have fome Share in the Force and
Perfons^vjc
have this farther to obferve j that as the Succefs of a Prefcription
*.
Except indeed,
one and the fame Man may be in feveral States to- that fome kinds of Parts and Difpofitions
arerouz'd
gether,
' provided they do not clalli with each and enliven'd by Bufinefs; and on the contrary, lie
other, fo he may fuftain feveral Pcrfons togethei-, doimant in a State of Eafe ^ Yet there is no
upon Suppoiition that the Duties attending thofe Queftion to be made, but that when God Al-
Perfons may be perform'd together by him. For, mighty impofeth a peculiar Charge and
Perfon on
though upon a natural Account one cannot be both any Man, he can, and often doth indue him
with
a Husband and a Wife, both a Son and a Daugh- extraordinary Qualities, beyond the Meafure ofc'
ter
i
nor in a moral Confideration, at the fame moral Acquirements
;
as is evident from the holy
Time, a Mafter and a Servant, a Judge and a Pri- Scriptures
".
foner, a Party and Witnefsj yet nothing hinders From what hath been ofFer'd on this Subjeb ic
why the fame Man may not be (for Example) at appears, that the JiisJS heretofore attributed too
home a Houfholder, a Senator in Parliament, an large EfFefts to their Regeneration^ by which the
Advocate in the Halls ofJuftice, and a Counfeller new Perfon of a Profelyte
of Jufticew^s impos'd on
at Court. In as much as thofe particular Offices a Gentile
j
as, when they affirm'd, that there was
do not require and engage the whole Man
j
but no Force remaining in his former Kindred
j
thac
may, at different Times, be all conveniently ad- he ought not to elteem, or ufe as Relations, his
miniftred
". And upon this Principle the wifer Brethren, Sifters, or Parents
j
nor his Children
Heathens undertook to defend Polytheifm^^ which begotten in his firfl: Condition
s.
The Caufe of
they knew well enough was contrary to Reafon
:
this Error was their abfurd Belief, that a new Soul
For, their Excufe was, they only conceiv'd fuch a was infus'd into the Profelyte.
Number of Perfons in the fame fupreme Being, XV. It may not be amifs, in the laft Place, to
as might anfwer the Variety of Operations obferve, that Men fometimes frame a kind of Sha-
which proceeded from his Eflence and Na- dows, or Images of moral
Perfons^ for the repre-
ture'
"".
fenting of them in Sport and
Jeft. Whence in
It's very plain from the Name and the Notion came to pafs, that the Term of Perfon hath been
oi Impofttion^ that when a Man enters on the Ca- peculiarly challeng'd by the Stage. The Eflence of
pacity of a new Perfon^ there is no natural Change -x feigned Perfon confifts inthis,that the Habit, Ge-
produc'd in him, no Generation of new natural fture,and Speech ofanotherrrfl/Pf/yo^
be handfome-
Qualities,no Augmentation of old ones
j
but what- ly exprefs'd
: Thus the whole Procedure bears only a
ever accrues to him from this Relation, is comprc- Countenance of Mirth, and whatever fuch afifti-
hended within the Sphere of moral Things. So tious A6tor fays or does, leaves no moral
EffeSi be-
when a Manis declar'd Conful, he is made ne'er the hind it, and is valu'd only according to the Dexte-
wifcr, nor when he lays down his Office, doth he rity and Artifice of the Performance : For which
lay down any of his Parts with it. Though fome Reafon we may, by the way, juftly wonder,
why
'
Cicero Off. Lib. i. Ch. xxx. We
mufi underfland, that
"we are by Nature invefied, as it were, with two PeiTons
'
or Capacities
; one common to Mankind, on account
of
our being Partakers
of Reafon, and
of
that Excellence by which we
furpafs the
Beafts ; the other proper to particular Men. A third is cafl upon us by Time or Chance : A fourth we
undertake
and accommodate to our pelves by our own Judgment.
Idemde Oratore. Lib\\.Ch.icf\y. Ijuftain threeVtx(oni at the fame Time
;
mine own, the Adverfary's, and the
Judge's,'
'' S E N E c. de Benef. Lib. iv. Ch. vii. There may be
fo
many Appellations
of
God, as there are Employments.
Maxim. Tyrids, Differt. xxiii. The Gods are one in Nature, though many in Name. But we,
fuch is our IgnO'
ranee, ajfign them different Titles, according to the different Helps and Favours which they
afford Mankind.
d
Purpura vendit
Cauffidicum, vendunt amethyftina ; convenit illis,
Et /irepitu
zs^'
facie majoris vivere cenfus, Juv, Sat. vii. ;?.
135, &c,
Vide Corn, Nep. Alcibiad. Ch. i.
f
Vide Exod. iii, iv. Deut. xxxiv. 9. 1 Sam. x.
6, 9. Matt. X. i. 19, 20.
Vtde Selden de
J.
N. cr G. Lib. ii. Ch. iv.
Mr. Barb. NOTES,
*
Our Author exprefles thefe Parts of an Army according to the Manner of the Romans, as Legio, Turma, Cohort,
Mampulus, S:c. to which we have no Terms that will exaftly anfwer, and therefore we are forced to tranflate them
thus.
See the Treatifes of Jujlus Lipjius upon this Matter.
Collegia is a Name given to the AlTemblies of fome particular Society of Men of one Trade or Calling in a City
or
Corporation,
and fuch were the Collegia, or Societies
of
Coachmen, Augurs, J.fculapius, or Health, Dendrophori, orTim-
^er- Merchants, &c. as we have at London, Companies, or Collegia of Mercers, Drapers, &c. Vide Mr. Daumat, Of
fubUck night. Lib. i. Tit. XV.
i. J
'
r
'
'J
' Mr.
Hertius
has treated at large of this, and cleared it by a great Number of Examples, in his Difcourfe, De
w
homine plures
fuftinente perfonas, which makes up a Part of the third Tome of his Commentaries, and fmallTrafts. Print-
ed at Traftkfon
on the Mein, A. D. 1700.
*
See Mr. Le
Clerc'j Bibliotheque Choijte ; i. e. Choice Library, Tom,
iii. Art, i.
C Peter
Of
the Origin
and the Vciriety
of
moral Entities. Bo o k
I.
lO
Peter
', BiHiop of
Alexandria,
approv'd of the
Baptifm
which Jthamftus,
when a little Boy, had
adminiilred to one of his
Play-fellows '.
But the Impofition
which
produceth true moral
Perrons, is allow'd no fuch Liberty
j
but ought
always to prefuppofe
fuch Qualities, as may contri-
bute to the folid Ufe and real Benefit of human
Life : And he that in
conftitutingPerfons hath not
a Regard to thefe Endowments,
is to be efteem'd
an extravagant
Buffoon, and a vain Tnfulter over
Mankind
*.
Thus Caligula might have made a
Con/ul o( the mofl wicked, or of the moll fenfelefs
Wretch in Rome,
provided the Man had been a
free Citizen, and could at leaft have perform'dthe
common and formal Part of that Office: But to
defign his Horfe Incitatus the fame Honour, was
a Pitch of Madnefs, and of infipid Raillery
:
nor
a lefs Impudence than when he
ff
t him up for a
Mafter of a Family, and gave him a Houfe and
Furniture
j
where there was good Entertainment
provided for Guefls invited in the Name of the
Beafl
^
. An equal Madnefs was it, as well as a
horrid Impiety, that many of the Anticnts, to
flatter their Princes, their Founders of States, and
other Worthies, rank'd them after their Death in
the Number of the Gods
'
. And what to think
of the Canonization amongft the modern Papifts,
no Man of Senfc is at a
Lofs.
XVI. As to Things
confider'd as they are the
Objeft of Law
"*
, there feems to be no Occafion
of ranking them under the Head o? moral Entities.
For, though iV/f are
conceiv'd as different Pcrfons,
upon account of their
diflFerent State or Office, yet
Things do not raife fuch diftinft Notions in us,
with reference to their Owners, whether ourfelves
or others, or whether the Propriety be yet uncer-
tain. When at firft fome Things fell under parti-
cular Right and Dominion, and others were left
exempt, we mufl not lanfy, that they themfelves
acquir'd any new Qualities} it feems rather, that
upon introducing this Propriety of Things, a moral
Quality arofe amongft Men, of which the Men
were the SubjeEls, and the Things only tlic Terms :
For, as during the primitive Communion of Goods,
any Man had a i^/^/j/ of applying to his proper Ufe,
what equally belong'd to all
>
fo, when once Ma-
ilers or Owners were
conftituted, there fprungup
a Right in each particular Mafter of difpofing how
he pleas'd of his own, and an Obligation in all
other Mafters to abftain from his PofTefTions. But
the Things themfelves obtain'd nothing hence, but
an extrinfical Denomination, as they make the Ob-
iect of luch a Right, and of fuch an Obligation.
So when certain Things are faid to be holy, or fa-
cred, no moral Qiiality of Holinefs inheres in the
Things ; only, an Obligation is laid upon Men to
treat them in llich a particular Manner : and whea
that Obligation ccafeth, they are fuppos'd to fall
again into promifcuous and ordinary Ufe. Yet if,
ftill, any Man will poiitively maintain, that there
are fome Things, as well as Perfons, which
fhould be call'd -moral, he muft take care fo to
explain himfelf, that he may be underftood to
attribute this Morality to the Things, not
for^
mally, as if it were inherent, but only objeli-vely,
as ir is terminated in them
'.
XVII. Thus much of thofe moralEntities which
are conceiv'd with Analogy to Subfiance. We are
now to enquire about thofe that are really and for-
mally Modes, and pafs in our Notion as fuch.
Alodes maybe conveniently enough divided into
''
Modes of JffeRion,
and Modes of Efllmation
:
According to the former, we fuppofe Perfonstohe
affefted in fuch and inch a Manner
j
according to
the latter, both Things and Perfons may be rated
and valu'd. The former fall under the Name of
^ialify, the latter of ^antity
;
if we take both
thole Terms in the moll extended Scnfe. ^lali-
ties, fo far as concerns our Bufincft, may be divid-
ed into formal and operative. For-mal ^alitics are
fuch as do not tend, nor are direfted towards any
A61 or Work, but agree and are join'd with the
Subject, in the Manner of pure and naked Forms:
whence we maylikewife call them
fimple Attributes.
Operative polities are either primitive, or deriva-
tive. By the primitive, 2. Thing is conceiv'd fit and
able for fuch anAt: They are divided into inter-
nal ', and external ', and maybe term'd moral
paf-
five ^alities. The derivative are thofe which
proceed from the primitivc,M\d. are the ' ^&them-
felves, as the former were the Poivers.
XVIII. Among ?noral Attributes, Titles have a
confiderable Place, which are apply'd for the Di-
llinftion of Perfons in civil Life, with Reference
to their State and their Elleem. They are chiefly
of two Sorts: Some direftly fignify the Degree of
the Rate and Value, which Perfons bear in com-
mon Account, together with the Qualities pecu-
liar to Men of that Rank
>
but the State itfelf
they only denote indireftly, and by the Bye, and
hit
r
Chap.
III. as it concurs to moral
xA^Hons.
hithisMothcr-in-Law andkill'd her, ^id
', account of not knowing
what
was to be done' or
T
ccvtO/UccIov v]/xc^v xaAAiw (iuKiUiTcti^ tortune
what to be avoided, which
Ignorance
he calls
/t-
had a
better Aim than I. Some diftinguifh thefe norance in Election^, or Ignorance
of Uni-vcrraJs
*"
two Species of Ignorance in this Manner, That for thefe every Man was oblig'd
to
know
Bu
what is done by the former fhall be faid to be done that Ignorance
of
Particulars is the Thincr
whici
out of
Ignorance, what by the latter, to be done by renders an Aftion capable of being
conftrued
invo-
one that is ignorant. Yet even in the latter Cafe, luntary. Thefe Particulars ai-e, who
what
about
no Murder, according to the ftrift and proper what, and in what, 'withwhat
Infirument
forzvhit
Senfe, is committed. For tho' that ill Affction Caufe, and by what Manner.
All thefe no Man
in
of Mind was in itfclf vicious, yet it contributed his Senfes can be ignorant of together
becau'fe
he
nothing to the Fact. With Reference to itsOri- is atleaft apprehcnfive ofhis own afting,
and there-
gin, Ignorance is divided into voluntary zndi invo- fore can refolve the firft
Qiieftion
{fVho?)
But
luntary. The former is by fome term'd confequent
'
in all the other Circumftances
Jcfnorance
mayin-
and vincible, the latter antecedent and invincible, tervene. Thus Perfons offend
who fay
'
what thev
The former, whether it be direftly afc^ed, or pro- ought not, not knowing
that what they have faid
cecds only from Idlenefs and Unattention, is when ought to be kept fecret. And the fame is the Cafe
a Man knows not that which he could, and ought
of a Man who intending to fhew his Friend
fome
to have known
:
the latter, when a Man knows not ^looting Engine, fhould let it go off,
and kill him.
fuchThings,as he bad neither Ability nor Obligation An Inftance of Ignorance
about what, and in what
to know. This invincible Ignorance IS cither fuch in it- (which are the fame Thing)
may be when a Man
felf^
andnot inits Caufe,ore\{thothin !t/elf,andinits kills his own Son, miftaking
him for his Enemy
Cau/e too. The former is, when in doing a Thing a Ignorance
of
the Inflrument is, fuppofe
aMan
fhould
Man is not able to overcome the Ignorance from throw
a pointed Spear at another, and kill him ta-
which it proceeds, and yet is in Fault for falling into king it to have had no Point.
For what
Caufe co'mes
that Ignorance. Thus frequently when a drunken to beconfider'd ir\ Ignorance, in fuch a Cafe as this
Mancommits a Sin, he does not know what he is do- Suppofc aMan fhould applv a Remedvto
another
ing, yet he is culpable for not knowing it. The latter with dcfign of preferving his Health, and the Re-
is, when a Man not only is ignorant of fuch Things medy fhould (againlt his Knowledge)
prove
mor-
as could not be known before the Action, but is tal. The lull Circumftance is,
?
wZ'^Z'
^<2w?fr-
as
alfo free from any Blame upon the Account of his
if a Man in teaching another fhould intend
only
falling into that Ignorance, or his continuing in
to give him a flight Blow, but fhould by
Accident
it. On this Point is obfervable what Ariflotle has defperately wound him \ The Rotnan
Lawyers
faid in his Ethicks, Book iii. Chap, i, ii. and what have treated under a peculiar Head
concernin<^
JV-
Euflathius has commented on the Place. Where he norance
of
the Law, ^.nAIgnorance
of the FaEl
*
^But
diftinguifhes between what is done by one being ig- they did not confider Ignorance fo much for
the
mrant, and what is done out
of
Ignorance. For In- Force and Ufe it had in moral Anions
as for
the
ftances of the former, he brings the Actions of a Influence it had on Matters of Right
and as it
drunken, or of an angry Perfon
;
for fuch Men, made for the keeping, or
'
acquiring,
or lofino-
of
tho' they often know not^ what they do, yet the
any legal Poffeffion or Qualification.
But their
Ignorance is not the Caule of their afting, but the numerous Reafonings about both Kinds
may be
Drunkennefs, or the Anger, of which 'twas in their reduc'd to this fhort Iffue, That
Ignorance
of
Power to decline the former, and to reftrain the the Law is, for the moft part, join'd
with fome
latter. He adds farther, that thofe Perfons cannot Degree of culpable Negligence'",
but lo-no-
be faid to do a Thing unwittingly, who fin upon ranee of theFacl is notj and that therefore
Equity
M-.Barb. notes.
I
Plutarch, who mentions this Sentence, in two Places of his Works of Morality, makes this to be the Speech of
the Step-Son, Ot)d" 'ara x.a.v.in
;
'twas not badly thrown. Dc anlmi tranquil,
p. 467. Ed. Wech.
'
This Divifion is not very neceflary, for only the laft fort of Ignorance is involuntary or invincible; for in Mat-
ters moral, volinitary comprehends not only what is formally confented to, but what preceeds Confent, if it be a
necellary Confequent of it. Tit'ius Obf. xxvii.
;. e. When we are ignorant which of two Things propos'd to us is moft advant.igeoiis, or with what View
we
mull acl; as for Example, when we prefer a profitable or agreeable Good before an'honeft one.
* Such is the ignoraacc of the Law of Nature, at leafl of its common Principles
; and the Ignorance of the Civil
Laws of the Government to which we belong : So that tho' we may kill or poifon another without any fuch Defi'in,
we can't innocently perfuade ourfelves thar Murder or Poifoning is allowable.
' There are fome other particular Circumftances, the Ignorance of which is as incxcufable as that of general Prin-
ciples. As tor Example, If one fhall fhoot off a Gun in a publick Place, and kill a Man, it will be no Excufe that
he thought no Man would pals that Way. becaufe he muft needs imagine that fuch Places are much frequented.
' Thus fays Ariftotle ;
yEichylus the Poet, being accufed for publiflnng t'he My/feries 0/ Venus Elufina, was acquitted, be-
caufe he knew not, that thofe Things which he had fpoken were to be liept fecret. For the Ignorance
of a Thing as to the
<S>uality, or what,
confijls not in being ignorant
of what is done, but
of
its being
of fuch a Nature, or having fuch atgluaUty.
''
Two other Circumftances may be added
;
as, i. The Time
;
for we may be ignorant whether a Day be holy or
not, a Feftival, or Working-day, ct'c. ^. The Place, whether it be coiifecrated or common.
See the
Digeft. Lib. xxii. Tit. vi. and Cod. Lib. i. Tit. xviii. fee alfo Mr. Daumat'i Civil Laws in their natural Or-
der, Part. i. Lib. i. Tit. xviii. $. i.
' Ignorance of Right (fay the Digefl. Lib. xxii. T;V. vi. e^. vii.) hinders not from preferving our juft Due, but is of
no Ule to acquire any Thing. As to Crimes, their Judgment is, that Ignorance of what is forbidden by the Law of
Nature,
or Nations, or by the revealed Law, is altogether inexcufable ;"but as to what is contrary to the Civil Laws,
Ignorance
or Error excufes fometimes, either wholly, or in part ; in which Cafe Men are confidered as having Means,
or not, to know the L.iw.
'u
"^1 ^*.^'" '^' becaufe the Law may, and ought to be clear and determinate, but Fafts are often very intricate,
lo th.it the
wifeft Men can't unfold them; and thereupon, in Matters of Fad, when Ignorance isgrofs, it can't be al-
ledged is a Realon
available. Ibid. Leg.ii,
v vi. <J' ix. . 5.
fee Cujas Obferv.
v. 39,
directs
Of
the Underjlanding
of
Man,
32
direfts us to interpret
the foiiner to the Man's
Prejudice, and the latter not.
XI. When not only a
Knowledge of the Truth
is wanting in the Und'erftunding, but a falfe Per-
fuafion has intruded into its room, which pafJes
itfelf for Truth, then we fay a Man has an erro-
neous Confciencc^ or that his Mind is ponelt by an
Error. This Error is (like Ignorance) either vin-
cible or invincible : The former is that which a
Man could and ought to have overcome, by ap-
plying fuch Diligence as is
'
morally poffible, or
as the common Condition of Humanity admits and
allows: The latter is fuch as a Mancould notvan-
quifh by all Diligence morally poffible. Where it
muft be obfer\'d, that fliould we approve of that
Saying of the Emperor Jntonimis^ Bookix. Chap,
xlii. IVhofoever fim^
docs in that decline from his
p-opos'd End^ and is certainly
deceived '
;
yet if the
Error were not infupcrable, the ill Actions pro-
ceeding from it cannot be exempted from the
Number of Sins properly fo caird,nor ought to be
pardon'd in Grofs by a promiicuous Indulgence
'.
XII. But it ought efpecially to be remark'd,
that Error h.is different Effects in Actions, which a
Man may undertake or omit as he pleafcs, or the
Exercife of which is left to his free Will
;
and in
fuch Ai:ions as are enjoin'd or forbidden him by
the Law or the Command of a Superior. In the
former kind of Actions, the Error is fuppos'd to in-
tercept our Conient : And thei-efore thofe Confe-
quences do not flow from it, v/hich are othcrwifc
apt to follow on fuch an Action as we have thus
confented to
j
efpecially if the Error did not fteal
on us thro' fupine Carelefsnefs and Negle<St. And
therefore in Bargains an Error about a Thing, or
about its Quality, upon Profpeft of which a Man
w;is induc'd to come to fuch an Agreement, ren-
ders the Bargain void. For in this Cafe the Man
is not conceiv'd to have agreed abfolutcly,but up-
on Suppofal of the Prcfence of fuch a Thing or
Qiiality, on which, as on a neceffiuy Condition,
his Confent was founded: and therefore the Thing
or Quality not appearing, the Confent is under-
ftood to be null and ineffectual. Which Point
fhall be difcufs'd more fully in its proper Place.
XIII. But the Cafe feemsto be very different in
neceffarv Actions, or in fuch as are commanded
or forbidden by a Superior. Where we mult firft
enquire, whether the Error arifes in the Theory,
or in the Practice
j that is, whether a Man enter-
tains a falfe Opinion concerning the Neceflity of
Book I.
fome A6tions, thinking thofe ought to be omitted
which fhould have been perform'd, or lice ver/a
or whether fome Error occurs in the very Exer-
cife of an Action, by Means of which the Action
is not applied lb rightly as it ought to have been.
The former Kind of Errors do not, in our
Judg-
ment, at all hinder the Imputation of an Action to
the Agent, according as it fliall appear to agree of
difagree with the Rules prefcnb'd him, bccauie
they muit upon all Accounts be efleem'd lupera-
blc : For he that would reltrain the Actions of an-
other by a Rule, ought at the fame Time to make
a fufficient Declaration of his A\^il], that it maybe
clearly known by the Perfon whom he is to oblige.
For otherwife 'tis the moft unjuit Thing in the
World to require Obedience to a Law, when either
the Law is unknown, or the Difcovery of itsSenfe
exceeds the Capacities of thole whom it aftects.
Therefore, if a Man errs in "Theory^ that is, if he
fanfy a Thing to be commanded which is really
forbidden, or, "vtce icrfa^ he is fuppos'd not to
have apply'd lufficient Diligence, and therefoiehe
cannot refulctobcar the Imputation of Faults com-
mitted upon fuch an Error. This Doctrine is by
fome Caiuilts thus explain'd in other Words: If
the Conlcience entertain a vincible Error about an
evil Thing, the Man fins, as well if he afts for it,
as if he aCts agiiinlt it : That is, if he has per-
fuaded himfelf that an A6tion was commanded,
which was indeed forbidden, or that an Action
was forbidden, which v/as indeed commanded, he
fins by performing the former, and by the forbeai-
ing the latter
>
bccaufc fuch a Performance and
fuch a Forbearance are repugnant to the Law, but
the Agent might and ought to have known the
Law, according to its true Import and
Significa-
tion: And yet
*
the fame Man has finn'd no lef%
if he has torborn an Aftion which was indeed
forbidden, but by himbeliev'd to be commanded
j
or if he has perform'd :ui Action really command-
ed, yet fuch as he imagin'd to be forbidden.
For
tho' in thefeCafcs there be no external Acts repug-
nant to the Law, yet becaufe the Man thinks his
falfe Notion and Conltruction of the Law to be
right, therefore the contrary Intention fhall be
imputed to him as Sin: For the evil Intention of
the Agent makes the Aftion appear evil, at leait
with Refpeft to the Agent himfelf From all
which it appears, that from an erroneous
fudg-
ment no AAion can proceed which may be im-
puted as good and right to the A6tor, and th;u:
'
Add. Aiiiaa Epiftet. Lib. i. Ch.\\\\\\. v
Ch. v. . 13.
Mr. Barb. NOTES.
For 'tis a Rule of the L.nw, Tli,it Ignor.ince of the Law hurts any M.nn, but of the Faft not.
T)tgeft. ibid.
'
See Ch. vii.
16. The Queftions about invincible I<;norance and F.rror, have been much debated in France, in or-
der to maintain the Rights of Coufcience in Matters of Religion, againft the .'Attempts ot fucli Teachers as are againll .i
Toleration, and are for profecuting all that differ from them
;
for which 'tis convenient that the Curious confult the Books.
It is certain, that when Men are arrived at the Height!) of Wickednefs, they (in not for iinninu's fake, but arc
ordinarily feduced by their Paflions, which on a fudden divert the Mind from the Thoughts of their Duty; but tho* a
Man confiders not the Sin formally in the Inftant of finning, he is not lefs to be blamed, becaufe his Ignorance rc-
fpefts Things which he might and ought to know; and (o the Maxim of M. Aiitonine, if underftood with the Re-
rtriftion bcforementioned, will rectify the Error of the philofophical Sin of the Jefuits. About which, fee Biblioth.
I'miverf. Tom. xv. In fine. Since we never refoive upon an Atlion, but upon the account of fome pofitivc Know-
ledge, and a fimple Deteft of Light rarely carries us to any Action, Ignorance and Error are often confounded in
Moralitv, and what is faid of the one, may be applied to the other.
*
Moreover a Man likewife fins as much in doing a good Action contrary to his Confciencc, as bv doing a Thin''
evil in itfelf, in following the Motions of an erroneous Confciejice. The Reafon is, becaufe in the firft Cafe he iV-
reftly and deliberately dlfobeys God, which is the moft aggravating Circumftance of Sin
; and befidcs, all the Ciood
that can be in the Adion, can't be imj)uted to the Agent, who could not but be feniible that he had no Defign to do it.
Whereas in the other Cafe, there is no formal Contempt ot the Authority of the Lawgiver
; nay, on the contrai^y, there is
aDclign to obey him; which fliews that the Action contains in it fome moral Goodnels, altho" in fome Refpefts it
may be accounted Evil, if the Eiror appears not unconquerable. See the Philofofhick Comment. &c. Tom. ii. Ch. yiii.
whea
Chap.
III. as it concurs to moral
Actions.
when a Man is fnljly perfuaded that fuch a Thing
is unjull
S
the Thing is unlawful for him to do,
fo long aS his Perfuafion fhall continue uncor-
reded.
Jcld. Lib. Ixvi. . 8. D.
of thefts.
XIV. But if a fpeculative Error be entertain'd
concerning a Thing indifferent
j that is, if a Man
33
neft Intention, tho' with an
inconfiderate Libera-
lity, conferred a Kindnefs on a wicked Perfon,
who will abufe it toward the
maintaining
of his
Difordcrsj he cannot at all boall of havincr
done a
good Aftion, yet he ihall be excus'd
from any
Share in the confequent WickednefTes, and
not
be reckon'd to have contributed any Thing
toward
their Commiffion. But when a Man has been par-
fhould be perfuaded that he ought to do, or to
omitfomewhat, which was indeed left free on both
Sides, he will only fin, if he ats contrary to what ticularly commanded to difcover and obferve pre-
this falfe Opinion fuggcils, upon the account of cifely the Objct, the Place, or Time of acting, it
the Pravity of his Intention, but will not fin, if he will be a hard Matter for him to efcape the Impu-
a61:s according to the Directions of his Error. For tation of thofe Effefts which fhall proceed from
the ill applied Action, unlefs he can demonftrate
his Error to have been morally infuperable and un-
avoidable. Thus if you give your Servant a llri6t
ror appears very harmlefs, which does not give Oc- Charge to wake you at fuch a certain Hour of the
cafion to fin. Yet it is plain, the Aftions under- Night, it will not ferve him for an Exxufe of his
taken upon the Motions of fuch an Error, cannot Default, to fay, that he niiftook in telling the
obtain thofe good Effcfts which otherwife follow Clock
;
yet if by any Cafualty the Clock went
indifferent Things are plac'd without the Bounds
f the Law
j
which cannot be tranfgrefs'd by
their Performance or Omiflion: And that Er-
the hke Inftances of Obedience to the Laws:
Thus, if a Legiflator had conflituted fuch a Re-
ward to thofe who comply'd with his Injunftions,
this Reward could nor be challeng'd by one,
who through Error and Miflake fhould have ob-
ferv'd fome indifferent Thing.', fanfying them to
be pofitively determined, and legally enafted.
XV. But 't!S much more uiual that an Error
fliould intervene in the Praftice and Exercife of
Aftions commanded by the Laws : As fuppofethe
true Objeft of the Aftion fhould be remov'd, and
another fubflituted in its Place
; or if we fhould
miflake the Time or Place of the Execution en-
join'd. Such Aftions, as they are not follow'dby
thofe EfFefts which are otherwife due to Aftions
rightly apply'd ; fo neither are they attended with
the EfFeifts proper to bad Aftions, becaufe the Er-
ror was not contrafted by any culpable Negli-
gence: Which fome Authors thus exprefs in other
Words, An intervening Error hinders the Aftion
from bging imputed on either fide, making it neither
good nor evil. fFbocver (fays Seneca Here.
fur. v.
1257.)
gave Error the Narne
of
Wickednefs? Thus,
tho' otherwife you would be freed from your Obli-
gation by paying a Man what you owe him, yet
fhould you pay him undefignedly, and by pure
Miftake, you will not indeed have committed a
Sin, but you will by no Means have cancell'd the
Obligation.
~'
Thus when a Man has, with an ho-
wrong, or was out of Order, the Servant fhall be
free from all Offence and Blame.
XVI. It frequently happens too, that an Error
intervenes in the Exercife of a bad Aftion, while
the Aftor mifles the Objeft at which he aim'd.
In which Cafe, the Malice oi the Aftor fhall con-
tinue the fame as if he had not mitlaken, but the
Aftion itfeif fhall be elfcem'd more orlefs heirious,
according as the Objeft is on which it cafually
lighted. Thus a Perion who intending to kill his
Enemy, accidentally kills another Man, fhall be
neverthelefs guilty of Murther. See Lib.xvui.
.
5.
D. of Injuries^ 13Lib. xiv . D. L. Corneliam de Sicariis^
(3 Grot, in Sparf.Florum ad h.L Yet the Murther
fhall receive more or lefs Aggravation, according
to the Dignity or Meannefs of the Man, who has
been fo unfortunately flain. Hitherto mufl be re-
ferr'd the Cafe of a Man's killing another outright,
whom he intended only to wound, or to hurt in
a lefs Degree
i
for here the Faft itielf mull be the
Rule to go by in Judgment : But when in the Ex-
ercife of a faulty Aftion, a Man by Miflake lights
on a lawful Objeft, fuch an Aftion will be no far-
ther evil, than as it flows from an ill Intention
in the Aftor; fo that this Error fhall hinder the
Faft from coming under the Name of the Vice
defign'd to be committed. And therefore that Say-
ing of Seneca^ of the Conjlancy
of
a wife Alan, Cb. vii.
will not hold, at leaft
'
in human Courts and
Mr. Barb. NOTES.
'Tis on this
'
ccount tli.nt the Roman L.iw has decreed, th.it he that takes away any Thing from another, think-
ing that he does it without the Confent ot the Owner, conTmits a Robbery, tho' afterward he find that the Proprie-
tor was willing he fhould take it and have it for his own ; but he that has as much as in him lies committed the
Robbery, c.in't be profecuted in Law as a Thief. The Law is this; If I againft the Will and Confent of the Own-
er, as I believe, do meddle with his Goods, tho' the Owner is willing 1 fhould, whether am I guilty of Theft !
And Pompon'ius fays, I am a Thief: yet it is true, that if I am willing he fhould have the \J(e of them, tho' he
know it not, he can't be impleaded as guilty of Theft.
Digefl.
Lib. xlvii. Tit. ii.
Of Thefts, Leg. xlvi. . %.
Indeed before God it is real Adultery; for, as the Author has obferved more than once before, and as he here-
after fpe.iks. Chap. vii.
$.4. an evil Intention renders the Aftion evil, which othei-wife is good and innocent, as to
the Matter, and in itfelt : tho' a good Intention is not fufficient to render an Aftion materially evil, or cood.
Whereas, on the contrary, if a Man defigns to do a good Aftion, and happens (thro' Mirtake) to do an ilfone,
there is no doubt but God will accept of that Intention, as if he had efFefted the Good that he propounded to him-
felt to do
;
and although it gives Place, by Accident, to fome Sin of another Nature, 'tis no lefs commendable
for
the Good which he would have done, unlefs the Execution of a pious Defign either become unprofitable, or be
hindred by the Change of certain Circumftances. So that the Maxim which our Author has laid down in the laft
Seftion, I mean. That eiery Aifion, in doing of
-which we rnay fall into an Error, can neither be imputed to us as Good,
nor E-jil: Tliis Maxim, I fay, had need be underftood with fome Reftriftions. Nor is it generally more true, that
thefe fort of Aftions muft always want, before human Judicatures, thofe Effefts which they would have, if they were
well applied.
As for Inftance, If a Man not knowing it, marries a Woman who hath a Husband already, or is a Re-
lation within
the Degrees forbidden, as he is no Adulterer or inceftuous Perfon, fuppofing that it be a real Error;
fo their Children
cannot be reputed BalVards, provided that both the Father and the Mother be under an invincible
Ignorance in
that Refpeft. This is the very Example that Mr. Hertius alledges here, and we may alfo confult his
Difcourfe ot a
Stippofed Marriage, Tom. i. of his Commentaries and fmall Woi-ks. Printed in 1700.
F Con-
34
Of
tie Will
of
Man,
Book L
Confideration
""j
'that
if
a Man lies with his own Sen. of Benefits, Lih.n.Ch. xix. ^
Lib.v. Ch. xiii.
mfe"fanfying
her to be amther's,
the Manflmll
be in the End. And compare Libanius Declani. xxxv.
anJdulterer,tho'
thelVomanhe noAdultevefs. Add.
f.
780.
of MorelUus's Edition.
*
Confult
alfothe new Letters ofMi'. Sa'^k, written upon the Occafion of his general Criticifing upon Mr. Mahn-
beurg's Hiftory of
Calvinifm, Lett. ix.
.
ii.
CHAP.
IV.
OftheWill
ofMan, as it
concurs in, or
confents to Mo ral Actions.
The
Contents
of every
Sedion of the fourth Chapter.
Certain Difpofitions of
the Bodyflir up the Will.
As alfo fame
Habits.
And Paffions.
Alfo Intemperance.
I.
Of
the AEls
of
the Will.
II.
Of
the Liberty
of
the Will.
in. that the Will
muft of Neceffity
be indifferent.,
i. e. not forced
to choofe
Good or
Evil.
IV. H01V the Will is inclined to good
things.,
and
to Goodnefs in general.
VI.
VII.
VIir.
IX. Anions
of
a mixt Nature.
X. Involuntary., and forced Anions.
THE
moft wife Creator
being pleas'd to
make Man an Animal
governable by
Laws, for this Purpofe
implanted a
Will in his Soul, as an internal Di-
reftrefsof
hisAftionsi
that theObjeas
being pro-
pos'd and known, this Power might, by anintnn-
fick
Principle, and without any phyfical Neceffi-
ty,
move itfelf towards them, and might choofe
that
which feem'd moil agreeable and convenient,
and rejeft that which appeared unfuitable and in-
commodious.
The Will is conccrn'd to govern
human
Aftions by the Adminiftration of two
'Faculties, by one of which it is faid to ^Qc fpon-
taneoufly^
and by the other
*
freely.
To Spontanie-
ty.y if we may fo fpeak, are attributed certain A6ts
and Motions, of which fomc are interior, com-
monly call'd
Eliciti, others exterior, generally
term'd
Imperati. The former are fuch A6ts as are
immediately
produced
by the Will, and termina-
ted in the lame Power. Some of thele are em-
ploy'd about the End, as Volition,
Intention,
Fruition >
others about the Means, as Confent,
Eleftion, and Ufe. Volition is that At of the
Will by which it is ftmply carried toward fome
End, without Regard had whether the End be
prefent or abfent j
or that Aft by which the End
is
barely approv'd of Others call this the Will of
fimple
Approbation, by which a Thing is under-
flood to agree with the Nature and Inclinations of
fome
Perfon, though he has not yet aftually and
effectually mov'd himfelf towards the producing or
obtaining t)f it. Intention (or Proarefis) is a De-
firc efficacious toward the obtaining
of
an End., or it
is an A6t of Will, by which it effeftually tends
toward an abfent End, and endeavours actually to
produce or to acquire it. This Aft being join'd
with the Hopes and the Attempts of procuring an
End, we may eafily conceive what ibrt of Things
it is employ'd about : and they, to be fure, muit
be Things pofTible in themfelves, and Things in
our Power ; as Ariflotle has more largely obl'erv'd.
Ethic . adNicom. Lib.ni.Ch.'iv. EkSiion
*
is concerned
only about thofe Things which are in our Power. E~
very Man purpofcth to do that alone which he imagines
''
himfelf able to compafs.
Again,L/^.vi. Ch.\\.jf^at
is already done., cannot be the ObjcU
of
our Choice and
Purfuit
;
for
no Man confults
of
what is paji, but
of
what is to come., and is changeable and contingent.
Whereas what is already done cannot be
altered
or re-
called.
And therefore Agatho well/ays. This alone is
bey fid the Power
of
God himfelf
to make that never to
have been done., which hath really been done. For it
enters into the very Definition of Intention or
nQj)xipiaic,
that it may be made with Reafon and
with Thought. Tho' there be many Degrees of In-
tention, with Reference to its different Height and
Force
;
yet as far as concerns the Occafions and Pur-
pofes of civil Life, 'tis fufficient to divide it into ple-
nary and femi-plenary. The former is that by which
the Will determines on any Thing after a full Ex-
Mr. Barb. NOTES.
See what is faid about this unprofitable and ill-defigned multiplying of Faculties in the fecond Note of the firft
Chapter
foregoing.
*
Mr.
Locke feems to have Reafon to believe^ That Liberty is nothing elfe but a Power properly appertain-
in'-' to
Agents, and not an Attribute or Modification of the Will, which is itfelf nothing but a Power. See his Phi-
lofophkal^EJfay
about the Under/landing, Lib.il. Ch. xxi. where this whole Matter about the Will, and Liberty in general,
is treated on at large. Mr. Le Clerc, in his Latin Tre.-itife about Spirits, Se,-f. i. Ch. iii. is of the fame Opinion
with Mr. Locke,"as to the Seat of the Will (as I may fpeak) but he elfwhere enters upon a more particular Mat-
ter of the Hypothefes of that great Philofopher, and (hews, that his Notions are neither exaft nor cle.ir. Sec his
Choifie Biblioth. Tom. xii. Art. iii.
f.
S3, e/c and Tom. xvii. Art. vi.
f.
236, 237.
The Author makes ufe of the School Diftinftion here, of AS^us Elian ; i.e. Afts fpringing up (as we m.-iy fay)
from the very Bottom of the Will; which being Terms not ufed in the Frertch Tongue, they are better exprefl'ed by,
Tht immediate Atls
of
the Will.
. ,
, . . .11
*
Our Author in all this (Quotation follows very unfitly fome Latm Tranllation, which had rcnJred the Gree';,
xfoaiffo-.?, Eleftion, infte.td of Deliber.ation,
Confultation, or Counfel.
^
^ __ r r r n-
'
This Writer bein" deceiv'd by the Latin Interpreter, tranflates, i<r 'ourai k> vsi^ i\ aurts, qut ex Jeje fieri
pojje tx-
ijiimavent; i.e. which he thinks may Le done of
themfelves ^
which bein" a Miftake, the E^li/I> Tr-inflator has truly a-
voided it, as I have done, by rendiing it, xvhich he believes himfelf able to e.xecme.
ammation
Chap.
IV. m it
concerns moral
Adlions,
q
t
amination of the Matter, and without being dri-
^ich a Place, and at fuch
a Time
We muft add
ven to It by the Violence of the Paffions.
The
ferther.
That tho' the
Reafon,"
which makes a
latter,
when due Deliberation has not been taken,
Thing defined or avoided , does
not
depend
upon
or when the Hurry of the Affeftions
has created
the Will, but upon the Condition of
the Objed
a Confufion and Diforder in the Reafon. Fru-
according
as it bears the Face of Good
or
Evil
\
ition ' is the Reft, or the Delight of the Will in
yet that Appetite, and that Averfion,
which
thus
the End now obtain'd and prefent to it. To which
follow
the Appearance of the Objea, are not
of
is oppos'd Repentance, or an Averfion
(common-
fo
much Force and Sway, but that there flilj re-
ly join'd with Shame or Grief) to
fomewhat
mains in the Will a Liberty,
whether or no ic
which we have before defign'd or affefted. Con-
^all determine itfelf to any external Aft about
feni
is our fimple Approbation of Means, as we
fuch an Objeft
j efpecially fince fuch an evil
judge them proper for our Work
:
And thefe Means,
Thing
may bear the Countenance
of Good, and
when they areplac'd within our Reach and Power,
confequently
be defireable, as long as it Ihall be
imply the two remaining Ads mentioned in our
fet in
Oppofition to a greater Evil.
And there-
firftDivifion
;
for Ekaion determines,
and
Ufe ap-
fore to refute that Notion oiHobbes^ De Homine
phes them to the compaffing of the End propos'd.
Cap.
xi.
. 2. that Appetite and Averfion necelTarily
Thofe Afts are call'd Imperati^ or enjoin'd, which
follow
our
Pie-conception of fome Pleafure, or of
are perform'd by other human Faculties
upon the
fome
Uneafinefs hkcly to proceed from the Ob-
Motion and Appointment of the Will. jeftj no room being thus left for Free-will
we
II. Liberty is a Faculty of the Will, by which,
muft
carefully
diftinguifti the Volition of fimple
all Requifites of afting being given, it may out of Approbation,
from efFeaual
Intention or
ulo-
many propos'd Objefts choofe one or more, and
aioian , of which the latter does not fo
necTf-
rejeft the reft
>
or It one only Objea be propos'd,
farily
depend on particular
Obieas
In the
I'^f Wh'J' ^-"^,^f"^'J,'^>
.^y'l"' o[."ot
Words following this Afl-ertion,
he applies a verj
do It. What we call the Requifites of aaing,
idle Piece of Nicety,
while he obferves
ThZ
W^f^Pfl
r^n J^^'^^'r'-^r
;
""^^
-^hen'wcfayaManbl^frcePrmofdoingthis'ortbl
r' n' I \t-
?'?'"'''"
.^1
V^^-
^^^f. 'I
""' '^^^^ ^^""^y^
"^ mderftand:t Lh
LconditioZ
conceiv d as a dift.na Thing, which being added
Ifhepleafes,
for ^tisabfurdtofaythataMan
bafrc
to the other Requifites, we immediately proceed
Will
of
doing Ms or that, whether he milor no For
to Aa.on; and therefore thole Requifites, menti-
no Body is foftupid as not to apprehend this Con-
ondm the Definition of L;^.r/;; do not include
trad.aion: And 'tis extream foolifh to add the
that Share which the Man h.mielf bears in the
veiy fame Thing which the Propofition
aflerted
A6tion, but are contra-diftinguifti'd to it. But
as a Condition to it. To fay that a Man mav
more particularly, we call ' theF
j^ f choo-
freely will the doing of a Thing if he will, is the
fingone or more out of many Objeas Liberty of
fame thing as to fay, Peter runs if he runs:
And
Speaficatton.ox o? Conlrartety and the Faculty con-
who would ever give this Claufe the Name of a
cern d in the Admiffion or Rejeaion of one only
Condition ? From what has been faid it likewife
Objea, Liberty oi Contradiaion.ovUhtxty
of
Ex-
appears, how we are to judge of thofe
Notions
xL, Ti , r M r J J o
laiddownbyMonfieurLeGra^inhisInftitutions
^0^ Liberty is fuppos d to fuperadd to Sponta-
of Philofophy, Parfm. Art. v. as if it were impof-
neoufiiefs, firft an Indifference of Aas as to their
fible for a Man not to defire what he clearly and
Exercifej fo that the Will is not oblig'd necelTa-
diftinaiy perceives to be good
; and as if a Man
nly to exert one of its Aas, as to defire or refufe:
finn'd only upon this Account, in not havine a
*''^'l?
'"
S^"^""^'
^^ ^^ impoffible but it fhould
clear and diftina Perception of Evil
'
affea Good, and refufe Evil, as/ch, yet in Refe-
HI. But the chief Affeaion of the Will,
and
rence to any particular Objca propos'd, it may
what feems immediately to flow from its Nature
determine on which Side it pleales, tho' perhaps it
is an intrinftcal Indifference, upon the
Account of
may feem to have a greater Propenfion toward the
which it is not reftrain'd to any certain,
fix'd and
one than toward the other. Another Thing that
unalterable way of aaing
j
and which cannot be
Liberty iu^ex^dds to the Notion oi Spontaneoufnefs,
entirely extirpated by the Force of any
external
is the Freedom
of Determination; fo that the Will
Means. And this Indifference we are the more
may, upon an internal Impulle and Motion, exert
firmly to affert and maintain, becaufe,
upon the
either ot its Aas of wiihmg or loathing, juft in
Removal of it, all the Morality
'
of human
M-. Barb. NOTES.
This Term (FrKimn or Enjoyment) is very improper (as any Man may obferve) bec.iufe the Notion of It which
he here lays down, is the EfFeft of Fruition,
and not Fruition itfelf. It is true, that the Latin v/ovd Fruitio comes fome-
thing near it; but it is very hard to find a word in French (or any other modern Languaoc) fit to exprefs the Moralifts
Kotion upon which thefe Divifions are built,
^
^
r
*
See Chup v. . 5
following.
This Diftinftion does not appear to be very necefTary. The Liberty of Contrariety Implies no more than a double Aft
otthe Liberty of Contradiftion. As for Example, If a Man is to choofe,
whether he fhM read Greek ot Hebrew, he con-
fults with himfelf, I. Whether he (liall read Greek- or no. and refolves in the Negative. Then, i. Whether he fhall
CA iH'TT->'
""' '*"'*
f''Oo' the firft. Thts Inftance h taken oHt
of
Mr. Le Clerc's Latin Difcourfe of
Spirit!, Sefl. i.
* T.h"istofay, Altho' we can't but be fenfible of fuch Impreflfions as particular Objefts make upon us, yet we are not
necellanly c.irned to fearch for them, or avoid them; but a Man may bv Reafon deny himfelf the Pleafure which the
Apprehenlion of it may flatter us with, and, on the contrary, expofe hiinfelf to that Grief and Uneafinefs, from which
he might be exempted without thofe Confiderations, which have induced him to undergo them. See Note 5. upon Ch. v.
5. 1 3. following.
'^
1 w^
'^^ *""""'
*^'^='P"='' ^'^i-
3^- ^"'
4.
and Chap.y.
. 13. following.
We may
add to thefe Quotations another Saying of the fame Epiaetus ; AurW a-p.ipiV.4>5 i yt>iTiu, rtfin- i y.MT.,
Ko Man n a Thief or a Tyrant
of
his own Wilt. See
Gataker's Notes Upon Marc. Antoninus, Lib. xi,
J, 36. where the Em-
peror quotes the Words of the fame Philofopher,
F 2
Aftions
36
Of
the Will
of
Man,
Book I.
Aftions
is inevitably overthrown. Sojirrian on E-
pEletm^
Lib. i. Ch.xvii. What can overcome an Ap-
petite?
Another Appetite. JVhat can conquer aDeftre
or anAverfion?
Another Defire^
or another Averjion.
Tou will
fay.
He that threatens me 'with Death com
by Fate. For thus Proclus (ad tiitiaum) divides A-
theills into three Ranks and Orders
>
two of which
he makes thofe ivho deny GOD the Care
of
human
ASliom and Affairs >
and thofe ':xho attribute
fich
a Care to GOD, as impojeth an abfolute Necef-
pelsme. I deny it; 'tis not the terrible Propofal which
fity
on all Events, utterly depriving Men
of
their
lays the Force upon you, but'tisyour oivn Choice idoich
Freedom and Choice. So alio Sahift
the Philofo-
inctines you rather to the Commijfion offuch
a Deed,
pher fpeaks in his Book De DUs ^
Mundo: To at-
than to the Dcfire
of
Death. In this Cafe therefore,
as well as in all others, nothing compelPd you but your
own Opinion; that is, nothing overcame your Will
hut your Will. Idem Lib. i. Ch. xxix. The Will is
not conquerable by any Thing but by itfelf.
Add. Sim-
plic. ad Epilet. Ch. i.
p.
22. Ofwhich wicked De-
fign thofe Men are in a great meafure guilty, who
tribute Injufiice, or
Luft,
and JVantonnefs to the over-
ruling Influence of
Fate , is to make ourfelves good,
and the Divine Natures wicked. Again, in Plautus
(Julular.iv. io.)\vhcn one (zys, Ibelieve this wasthe
II 'ill
of
the Gods, for
otherwife I am certain it could
never have come to pafs.
Another anfwers
him
merrily, And I, for my part, believe, 'tis the
Will
fanfy fome llrange Kind of phyfical Predetermina-
of
the Gods, that I fliould
take you, and hang
you
tion in human Deeds, by which the Motion in it-
up for a Rafcal.
felfj and as it is a natural Being, is fo determin'd by
the firliCaufe, that it cannot be done in any other
Manna-
j
tho' it afterwards receive its Morality
from the fecondCaufe. Nor are they in a lefs Fault,
who from the Divine Prefcience would derive an ab-
folute Neceflity on all our Proceedings. For tho'
this Attribute of God cannot be deceiv'd, yet that
it does not take away the Indifference of the Will,
may be eafily underftood , if we either clear the
Word Prefcience from the
Imperfeftion which it
fecms to imply, as do all other Terms taken from
iV. For the right Underllanding of this Indiffe-
rence of the Will, fomewhat ought to be premis'd
concerning the iSlaturc o^ Good in general : Now
tho' Good by many
'
of the Philolophers is con-
fider'd abfolutely, fo that every Being really exi-
llent may be pronounc'd Good -, yet we without
regardmg this Signification, which we judge to
be very uielefs, will only conlider Good, as it de-
notes Refpeft to others, and as it is (aid to be
Good to one, ox for
one. According to which
Senfe the Nature of Good
'
fcems to confill in
human Things, and applied to the Divine Nature that Aptitude, by which one Thing is difpos'd to
(fincein God there canbe noSuccefTion of Time)
or if we fay, that the Divine Concurrence does in
fuch a Manner accompany fecond Caufes, as ifill
to leave them the Power of afting in the way ori-
ginally alTign'd them by their Creator, not deba-
ling them with Reference to moral Acbions from
principal into meerly inftmmental Cauics. Add.
Lucia?!, Minoe, SJupit. Confut. Anton, le GrandInfi.
Philofoph. Cart. p'.8. Ch.xvii, xviii. How prejudi-
cial fuch Notions are to a State or Kingdom, Gro-
benefit, preferve, or compleat another
; becauie
this Aptitude, depends either upon the Nature of
the Things themlclves, or inch Properties as they
have naturally, or byVirtue of human Indullry ; and
therefore this Good, to which we may give the
Name of natural , is firm and uniform , and has
no Dependance on the erroneous and various
Opinions of Men. But becaufe Good does not ex-
cite the voluntary Appetite of Man, unlefs it be
known, at leail under a confus'd Notion
; and be-
titisxi well aware, when he obferves, Obferv. de caufe Knowledge arifing from Scnfe, gives but a
Do^at. Reip. Nox. That thofe
who utterly difcird
the DoSrine
of
Free-will, can hardly avoid making
GO D the Author
of
all Wickednefs ;
an Attempt
which Plato
himfelf
declared ought not to be born
with in a Commonwealth ; De Repub. Lib. ii.
Toiv
K!tKMV oi/\>C ccrla. Oil ^nleiv TO alrixt a AA' a'
ToV S-go'i.
Wc ought to
affi.x
any other
Caufe of
E\n\,
but never to refer it to GOD. To the fiime purpofe
Suetonius fpeaks well when he makes Tiberius {Lib.
Ixix.) aContemner of all Religion, fay, ^uodomnia
fato agi crederet, for believing the World to be guided
grofs Reprefcntation of the genuine Natures and
Confequence of Things , fo that the Underftand-
ing is often clouded with Error, and diforder'd
by
the violent Noifcs of Senfe and Paflion
> hence it
comes to pais, that many Men inveil things falfly
with the Name and Notion of Good, and this is
what we call imaginary Good. And farther, every
particular Perlbn, as he underftands a Tiling to
make for his Profit , his Prefervation, or his Per-
feftion, loves anddefires it
;
and, on the contrary,
what he conceives to be Evil for him, he hates and
Mr. Barb. NOTES.
The whole Sentence oi Plato, of which our Author cites only the Lift P.-irt, is very emphatic.il ; God, liecatife lie
is good, can't he the Caufe of
ail Things, as' fome ajjert, hut is only the Caiije
of fome few Things among Men
;
and no
Caufe of
7nany
;
for good Things are much feu'er than evil among us, and none can Le the Caufe of
good Things but Cod ; hut we
muft
feek out fome other Caufe of
Evils than him. Thefe Words are but a little before the Place where tliat Philofopher deli-
vers the Words which Grofias refers to,
xaxav -j alnov, 6cc. We mujl with all Zeal oppofe them who
aJJ'ert, That God, who
is good, is the Caufe of
an'j evil: Nor
muft
it be endured in any well-governed City, that any Manwhatfoever, either young or
old, no not
fo
much as a Poet by way
of
Ftclion, fliould hut lightly, much lefs
plainly, either ffeak, or hear any fuch Things,
as are neither pious, convenient, nor confonant in themfelves to be mention'd,
when fpoken.
*
All the Metaphyficians.
According to the Definition which Mr. Loch gives of Good ( in his Philofphical Effay upon the Human Underftand-
ing. Lib. ii. Ch. xx. . 2.) every Thing is fo called, which is proper to produce and increale Pleafure in us, or to lef-
fen and fhorten any Grief; or is able to procure or preferve us in the PoU'cffion of any other Good, or a Freedom
from any Evil. And, on the contrary, every Tiling is accounted Evil^ which is proper to produce or increafe Grief
in us, or lelTen any Pleafure
;
or is able to caufe any Evil to us, or deprive us of any Good. Tliis Definition, which
refpefts the Eft'ecl chiefly, thai Things good or evil work upon our Spirits, is confcquently more natural than that of
our Author, which refers to the Difpofitions and Qualities of tlie Objctls, as to the Effect which they produce, with
relation to the Conftitution of our Nature in general, not diftinftly exprclFing tlic Senle of Pleafure or P.iin, vvhicliin
all Languages, and in tl'.e Opinion of all Men, are comprehended under the Notion of Good and Evil. In fine, Tho'
the Pliilofophers diftinguifh ibmetimes between agreeable and profitable, and in fome Cafes thefe two Things maybe
oppofed one to the otlier, yet 'tis certain that every real Good is both agreeable and profitable, as every real Evil
is difagreeable and difadvantageous, if not at prefent, yet at leaft in the Confequcnts, and at the End ofa certain Time,
Set i\'ete 5. of the following Page.
3 avoids.
Chap.
IV.
as it concerns moral
Adtions.
avoids.
But as it is not requifite to the Nature of
Good,
and to its Power of moving the Appetite,
that it fhould be confider'd precifely as Good only
for the Perfon defiring, and abftrafting from the
Advantage of others
j
efpecially fince upon ac-
count of the Society and Conjundtion of Men,
the Good of others may redound to our Benefit
and Uie; lb amongft Mankind there is fo fair an
Agreement about the general Nature of Good,
and its chief Parts and Species, that barely on the
Score of their being divided about feme Particu-
lars, there's no manner of Reafon either why we
fhould deny the univerfal, and unfhaken, and
uniform Notions of Good, or why, in a State of
natural Liberty, we fliould make it depend on the
bare Opinion of every private Man, in a State of
Government on the fole Judgment of the fupreme
Magiibate, as the only proper Meafures and Rules
for Its Determination. Add. D. Cumberland, De
L. N. iii. where he refutes Hobbes's Notions of
Good, (Jc. Ch. i. . to. As for the moral Good
which appears in human Anions, it fhall be difcufs'd
by and by in its proper Place.
From the foregoing Obfervations this manifeft-
ly appears to be the Nature of the Will, that it is
always defirous
'
ot Good in general, and always
averle to Evil in general : For it implies an open
Contradiftion,
*
not to incline towards that which
feems agreeable, and to incline to that which feems
difagreeable to us. And therefore in this general
Inclination of the Will there can be no Indiffe-
rence admitted, as if it could (with the Appetite
of fimplc Approbation) fometimes defire Good
and fometimes Evil. But they are the particular
Goods and
>
Evils, which give room for the In-
difference of the Wills of particular Men, who at
different Times, and upon different Occafions,
are very various in their Scents and Purfuits. And
there is this evident Reafon why it fhould be fo,
becaufe there are fcarce any Goods or Evils which
appear to a Man in their native Colours, and
without fuffering any Mixtures, but commonly
they are blended and ihufHed together ; Good is
adulterated with Evil, and Evil is fweetned with
''
Good} to which, if we add the flrange Incli-
nation which we find to fome good Things in
particular Perfons, and how all Men have not the
Ability to diftinguifh folid and durable Enjoy-
ments, from thofe which are
'
only painted and
37
tranfitoryj we fhall fee how
there muft needs a-
rife hence an infinite Variety in
the Wills and In-
clinations of Men; and how all
purfue
what they
think their own good, but in different
Paths and
by different Means. Befides, many
Men do not
know what Things are good for them, and
there-
fore do not defire them
; many more prefer
the
fair Face and Semblance of Evil to real and fubftan-
tial Good, and lb rcjed what they ought to de-
fire, and defire what they ought to rejedt. To
which purpofe
Ariflotlc well obferves, Ethic, ad
Nicom. Lib.'m. Cb.vi. Th-xt to be defireable by the
Will, /imply and properly [peaking, which is truly
Good, but that/o be
dcfir
cable by every particular Man
which he imagines
fo.
What Gunther writes to Li'
gurinus may be here applied,
Lib.m.'ver.z'is).
Tanlum
falfa
loquendo
Falkre nemo
potefi : verifub imagine
falfum
Influit, Sfmtim deceptas occupat aures.
When Falfhood bare and undifguis'd
appears.
It never can deceive : but when it wears
The Garb of Truth, it cheats the heedlefs Ears.
Thus then in almoft every Thing and every
Aftion
many Species of Good and Evil, both real
and apparent, croud themfelves into our Thoughts,
and when thefe have for fome time variouily agi-
tated the Mind, and driven it one while to favour
one, and one while another, at lall the Will by an
intrinCcal Force determines itfclf to the embra-
cing of one Objcd, and difcarding the reft. And an
Action perform'd in this Mannei, is call'd fponta-
neous or voluntary, which
Ariftotle thus defines,
Ejhu. ad Nicom. Lib. ni. Ch.m.
Jo Uiaiov H^eav
av
direct, a f,
dp^h ^ ajoTcfi,
e^oVi ra xaB'
ixasa d* o;s r\ ir^^ii. T'hat is to be ejleemed
fpon-
taneous,the Principle
of
which is in the
Perfon ailing.^
who likewife imderftands the Particulars in which the
AUion
confifts. Euftratius comments on this Place
to this purpole
: Both thefe Conditions are necejjary
to the conflituting a fpovtaneous AElion, that the
Principle be in the Aitor, and that the Aclor know
the Particulars. For he that acts out
of Ignorance
has the Principle
of
aSling in
himfelf; and he that
knows the Particulars, may yet al by the Conpul-
fionof
others. And therefore ncitherof
thefe Condi-
tions by itfelf can make a Thing properly
voluntary.
Mr. Barb. NOfES.
'
This is wliat is implied by that common Maxim, That all Men natxrally and unrnoveably defire the'ir own
Happ'mefs
for true Happinefs conlifts not only in the Enjoyment of all good Things, of which they are cipable^ but in a Free-
dom from all Evil ; the leaft Pain being fufficient to mar our greatell Pleafure.
'
The Quotations Vv'hich are annexe(5 by the Author a little lower {viz.. at the End of the Paragraph in the
Englifli
Tranflation, and are noted by a,b,c) are more properly to be put in here, and efpecially the lall of them. I (hall
add, upon this Occafion, a PalTage out of the Emperor Marc. Antoninus, Uuc,
vz
^l^'"'
'Vi,&c. Is it not a cruel Thine to
hinder Men jrom
furfuing Things, -which they believe to be ufefiii and agreeable to them! Lib. vi.
. xxvii. See Gataker's
Notes upon the Place, where he has gathered feveral Sentences out of anticivt Writers to the fame Purpofe.
' Such are all thofe that concern tlus Life.
*
Every Objetft (lays this Author in \\ii Abridgment
of
the Duties
of a Man and Citizen, Lib. i. Ch. i. . ii.) makes
oifferent Imprellions, as it works upon Man in different Places : As for Example, Some work upon him by way of
Eftecm, or according to the great Value he has for himfelf Other affeift the Senles with Pleafure; and move him by
Selt-love,
which engages him upon Self-prefervation. He looks upon the firfb as honeft and convenient; the
fceond, as luitable; and the laft, as profitable. Every one of thefe Goods in particular draws him with more or lefs
Violence,
according as the Imprellions, which it makes upon the Heart, are more or lefs ftrong. See Note 3. of
the
foregoing Page.
' Mr. Locke in his Phil.
Ejfay of
Hwman Underfianding, Lib. ii. Ch. xxi.
. 58. fpcaks well to this Purpofe ; The
prefent Jiiigment
of
Good or Evil, -juhich -we make, is alzfays right. Indeed, Things cor.jidcred as we atlually enjoy them,
are what they
fecm to be,
Jo
that in this Cafe, Good apparent and real are the
fame thing;
for Grief and Pleafure being
efteem-
ed fo
as we
feel them, and no more ; the Good or Evil frefcnt is really no greater than it appears : and, by Consequent,
if
fVery
one
0}
our
AcTions be rcfpeiled in itfelf, without any regard. to its Confequences, ive can never miftake in our Choice
of
Good, but
muft always injaUtbly adhere to the better Part. Compare thefe Words with what goes before and follows^
where that great
Philofopher clears this Matter with much Soliditv and Exadncfs.
.,-!
V. But
g
Of
the mil
of
Man,
Book I.
V Rt it
doesnotalwavs
falloutthat
theMind of
Conftimtions, the
Will fometimes feems un-
A'^^nTiST^qmB^^^^^^
able to hinder their
Exiftence,
or thexr brealang
tf,n^^^^oi'^lt^a:^'^l
without any confide- out into Adion, yet it may
prov.de fo fa,, as to
to difable its
Powers,
As the Manner does no
And thus /-W d Ipwe
,
.
^^^^ ^^
jlways cut the Sea * -
eve" nnd^F|^-u
^Sdlthe
Cam
State, they might yet
Gale, but
fomctmies
oppos d by
furious winas,
^
,
bv the Laws,
if rightly fram'd and
he hardly holds the Helm,
and
fomaimcs being
"^
lupp"
"V
"=
^
'^
J^
,
^
^^
-
j f
violentl/ftaken
outof his
S=Y;"'!|SS'"i
hTtlt, ,,f
CVS
othershaveJclL'd
he is obhg'd to
commit his
Veffl to the
Rage of
^'
';^_^
^^^,.^, Manners
and Inclinations
theTempelt.
i,u :,, /ifrhefeveral Aees of Life:
Thus, for Example,
Among the Things
then
which a^^^^^^^^^
"f^ d Men are
fSlently
iuclinM to Comouiifs,
^^l^'-^^rXi^^
'
SSMns
of their
NerghSours." A5d.
^^t^l^rf^htNatur^oftheClin^eand
'
^-/Sg^:
inclines the Willve-
ol the Soil, as Lucm. Ui. vni. r. 566.
fpealcs,
^^^^',i^,romeparticular
Adions, is the frequent
Emollif
gentes dementia
caeli,
Repetition and Cuftom ot thofe
Aftions
;
whence
The Heavens fweet
Clemency
it comes to pafs that they are
undertaken very free-
1 ne
Heavenb iwcct v^icm
j
r
Difpatch,
and that when the
Softens the
Tempers
of the Men.
ly -d
-^l^^g'^^Vents^tfelf/the
Mind feems, by a
And Herodot Calliop It is the fettled
Appointment
kind of Magnetifm, to be drawn towards it
*
.
And
fflSr L/^^^
breedfoft
Men, and thefe Inclinations being join'd with an exceeding
hatt
flThlMIhouU
never be famous for
the
Defire and Dexterity ot ad.ng pais conrimonly
ExJif^/^r/z^rFrL,
and for
the Vigour of
the
under the Name of Habjts, which, as they are
iSS/
To which
zddCharron
de la Sagejje,
concern'd about
moralJclms,
either good or e-
TihVch^Xn )from the
Temperature
of Humours
vil, are call'd either Virtues or Vices. There s
LibA Ch^^n.) ti om t'le i empeiai
no Reafon why we fhould tire ourfelves to reckon
The'^DTt^tSHr^^^^^^^
u
fhefeaccorLgtotheirfaUTaleandNumber,
partS
PerfonsTfrom the
Conformation
of thofe fince moft Authors who have hitherto profeffedly
Sai^i which the S^ul
employs i
treated of moral
Ph.lofophy, have fimfied the
Dude?' .^d from the hke CauL
^
Concerning
mam Part of their Bufinels and of their Science
Swhurhkmuft be m general aflerted,
That none
difcharg'd, by explaining only the eleven Words
of Them asX
bebn^g to the
Produdion of a that ftand for fo many
Virtues. It will fufhce o
mo al A'aTon al-e of ff great Force and Vehe-
obferve in general, that thofe Difpofitions of the
mence as to ender k
impoflible for the Will to
Mind are Virtues by
wh.ch a Man is inclm d to
uk^ the contr"rv Side
^
And tho'
'
as to fome
Adions making for the
Prefervation
of himfelf,
paicicular
rpiJ^e^s'arifing
from the
Difference
and of human Society,
and that thofe on the
'
Add. Hobbi de Ho?mne. Ch. xiii. 8c Bacon De Augment. Scknt. Lib. iv. Ch. i.
tton, mayattaiv.
Mr. Barb.
NOTES.
'
A little Ci>e
-indDili''ence(adds
this Author elfewheie) feldom fnils of taming, and confidei-ably
amending thef=
intuial Diflofitons
iu 1 fon etimes it doth not peffeftl/ fucceed, it at leaft prevents the Comm.iLon o^. f"ch out-
. d Aa as r
puninwble in the civtl Judicatory, and the Difficuky
which we find ,n conquenng thefe kmd of In-
clinations, i^ abun'damly
recompenfed bj the HoAour confequent upon fuch a Vflory. The Duty of
a Man and Cm-
*'"'stfrJ;.'fwods
fi-nlfy no more than this, as Charpenuer has very well tranflated them
;
/M. my Of.nion. that all
V.t!:d:Zsl:ter\%aldVfe.,that.^
not fuffer us to doubt that this is Socrates's Meaning. So that thefe Words are nothmg to the Puipol. ot our Authoi, w no
be
nl deceived by the Latm Tranflation, thought tty fignified, 1, my Opinion that all Vmuesmay be
'^^fh^Z't...
hlCclTp xiii. of Tome i. of Mr. B^y/.'sAnfwer t"o the d^eftions of a Provincial, where you 11
hnd fome cur ous
PtfTaees abou't tie Power of the Conftitution. But if we refleft ferioufly upon this Matter, we muft acknowledge
fh\tlofe over whom Nature has fuch an abfolute Command, are commonfy hich Men as will take l.ttle or no Pams
o conquer
tIeiilncUnations, or have taken no proper Methods to do it. Thefe depraved Inclmations are a kmd of
naturaSemper,
yet not altogether incurable, as 0r. very well obferyes who alleges
^""'^^le Example to th.s
Pupot ir that of 6.c.^r, wto freely confeded, that he w.as naturally
inclined to thofe Vices which a Phyfiogno-
^Xmaed 1 in, as guilty of, but that he conquered them by the AlMance of Reaion :
0..r. s Word are e^
.r LSri Tmntur laemd] V..
Such Perfonsas are faU
to be by Nature pafflonr.te,
meraful,
env,ous, ortheUkeare
TZ"ebrfom e^^^^^^ ^f
he Mmd, but are curJble ; as Socrates i.>./,
^'he.
Zopyrus, who profeffed h,mfilf
to
ir/w. Z'7L3-'^y
tlA^ure ofh.s
Face, had ,n a ,rea, Ajfemhly
loaded hnn wnh manyVuesJor Mheu,as
luMahyaUthereft-,
bit Socrates cleared h.m of
any Miftake. by faymgthathe
had once fuch
Incl.nat.ons.buthe had
tdii^neaatvyaii,imn.ji,<^
r ^
n <,
(-t
xxxvii See a fo the fame Author concerning f<irc. Chap. v.
mafiered them perfectly by hit Reajon, Tufc.
i^uaslt i.j&. iv. u. xxxvu. occ .
A,hr fiipak-t in Tn<: Abridpment
^
We may add. Or tf
tt beahjent.n
hopes for_ it with very great Exfeflatm ;
as oui Author
Ipeaks m h.s Abridgment
of the Dutiti of a Man und Clt\:.eni
&.c. Lib. i. Ch. i.
J. 5j
'3-
conr
Chap. IV. as it concurs to moral
Adions.
contrary
are Vices, which addit us to Aftions
deftruftive
of oui-felvcs, and of the Community
to
which we belong. And here Mr. Hobbes muil
fall
under Cenfure for that Allertion in his Book
DeHomine^ Ch.y^m. . p. where he declares, that^
except in civil TJfe^
there can he no common Meafure
found
out applicable to Virtues and Vices^ and that,
confequently
,
in a State
of
Nature there can be no
fuch
Meafure ejiablifl:''d^ by whicb^ as by a Standard^
thofe
'things ivhich ive call Virtues and Vices may be
fettled
and determined. For the Definition which
we but now fet down, will reach even to a natu-
ral State : and whatever Things are enjoin'd as
Virtues in civil Communities, ought to agree to
that Definition} and if any Things fhould be or-
dain'd contrary to it, they ought to be reckon'd
ablurd and unreafonable Commands.
The Diverfity which appears in the Laws of fe-
veral different Communities' ,does not hinder, but
that there may be Ibme univcrfal and uniform De-
finition of the Virtues. For this Diverfity either
is concern'd about fuch Things as are plac'd with-
out the Sphere of natural Laws, or it arifes from
hence. That what is really a Precept of the Law of
Nature, is in one Place inverted with the farther
Force of a civil Law, and in other Places not} or
laftly, it is an Evidence, that fome Legiflators, in
framing their Edifts, were not befiiended by good
Reafon. Of which we fliall have more to fay by
and by \
Farther, tho' Vices and ill Manners confirm'd
by long Ule and Habit, feem to pafs into a kind
of fecond Nature, fo as not to be without great
Difiiculty refilled, as Calpurnius Placets fpeaks,
Declam. ii. f-Vhen Modejly bath once lofi its Influ-
ence^ no Ruin^ no Horror appears deform d to
Minds bent upon Wickednefs; and Lucian againft
an unlearned Man, J Dog that is accujlomcd to eat
Tfipes, can hardly be brought
off
from it, (Add. Ba-
con's EJays, Ch. xxxvii) yet Aftions proceeding
from them ought neverthelefs to be reputed volun-
tary. And altho' Aftions which precede any Ha-
bit, and by which it is introduc'd, are undertaken
with a fuller Intention, and with a more urgent
Endeavour, than thofe which are pcrform'd after
the Habit has been contratcd, when as it were
without ftaying for the Command of the Will,
the other Faculties rufii fwiftly upon the Objeft ;
yet neither the Goodneis norPravityof theAftions
feem upon this Account to be at all diminifh'd.
For 'twould be a Thing of very ill Confequence,
if a good Alion were therefore to be reckon'd
Icfs good, becaufe it has been often repeated, or if
a Man were to be efteem'd lefs a Sinnci-, becaufe
39
he had f^^equently finn'd.
EfpecialK-,
fince every
Man IS the Caufe of his
own
obtainin<T
a Habit
or of his afting fo fuddenly
and
expeditioufly
yf-
riftotk has an Obfervation very clofe
to
this pur-
pofe in his Ethicks to Nicom Lib. iii.
Ch. viii.
il<Hi. Tup /j,iv yap
sresl^icriv avr' ap;^5
pi^i^^Qjt.,
TgA8; WQ/.o( ia/LAZv,
ei^Tii TO xa9'
hxTcc- T
?^i
y'^^f^^->
^'^^? ^ ccfpccgtSv. aAA' oTl i(p
l>c8o-(oi. ^iions and Habits arc not
fpontaneous
in
the
fame Manner-^
for as to our JSiions we are Ma-
flers
of
them
from the Beginning to the End,
becaufe
we undcrjland all the
Circumftances that belong to
them
:
but
of
Habits the beginning only is properly in
our Power, continual
Additions being
beyond our
Knowledge or Prevention,
juft
as it happens in the
Increafe
of Diftempers. But
'becaufe we had original-
ly the Power
of
doing
fo,
or
otherwife,
therefore the
Habits
likewife are to 'be conftrued as
fpontaneous, up-
on account
of
the Principle whence they
fpring. On
which Place
Eufiratius thus defcants
} H^e have a.
Command only over the Beginnings
cf
Habits, not o-
ver their
Increafe or their End. For the
Progrefs
and Improvement
of
them is unperceiv'd
and unre-
garded, while they rife and advance by
fiknt Degrees;
.whence it happens, that
fome Men run
deeper now
and then_ into
Wickcdnefs and Vice than they
intend-
ed
\
This may be
feen particularly in
Drunkennefs
and Uncleannefs, in which Men
fometimes go];i<r
on
freely and
heedlefly, as
if
it were
left to our
Pkafure
whether wefoould get a Habit or no, by a Continu-
ance
of
bad Praaice, contrast a Habit
before they are
aware. Nor is it in Vices only that the
Additions
and Augmentations are
undifcover"
d,
but in Virtues
likewife the Advances are made by
fuch fecret Steps
that a Man mayfooner obferve his own
Proficiency
than he can know how he came by it.
''.
VIL Thofe Motions of the Mind
which they
call PafTions or Affeftions, chiefly excited
by the
Appearances of Good and Evil, have
likewife
a
great Force in driving the Will violently
to fome
certain A61 ions, befides their ill Influence
on the
Judgment, which they frequently
cloud
and ob-
fcure
\ How many thefe are, by wliat
Means
they are either rais'd or allay'd, and
what Ufe
and Service they have in Life, is moft
excellently
fliewn by Des Cartes
'
and his
Follower
Le
Grand'; to whom maybe added Mr.
Hobbes
"*.
It is enough to our Defign, if we only
remark,
that however violent the Aftei:ions may
prove, they
can never quite extinguifh the Force of
our Will.
Pindar in liis Olymp. Od. vii. ver.
55.
fays,
'<
^ (p^imv, A troubled Mind -betrays into Millake the wifeff Headi
b
Cartes de
P.iffion. .50.
^ J
j j
<^.
t Le Grand.
Inft.
Phil. Cartef.
f.
7.
Ch. i.v.
A
Leviath. Ch. vi. cr de Hom'.ne, Ch. xii.
Mr. Bare. NOTES.
'
Sec what I have faid in my Preface, . 3.
'
See Book viii. Chap. i.
The natural Confequence of this is, that we nuifl ever omit, and avoid, whatevef has the leaft Tendency in the
World to engage us in an ill Cuftom. See what I have faid iji my Treatife of Games, Lib. ii Ch iii . 2
*
See the Author's Abridgment of the Duties
of a Man and Citiz.en, Lib. i. Ch. i. . xiii. 'and what he' ihy; in the
loUowing
Chapter, .13.
'
But
.Q Of
the Will
of
Man,\^. \^. BookI.^
But
thiit M^^ of
^^^^ "weakeji Souls may obtain
'
an ert rheir Force
j
and unlcfs thcfe are diligently
abfolute
Command over their
*
Pafions, if
they
ufe a kept under, the avW<tl oi^ion or Confent certain-
Jufficient
Diligence in managing and direSling them, as
]y
follows, when the Power of the Soul, which
Des
Cartes has prov'd
'.
Ovid's Medea put a' was conflituted for the governing and rellraining
Cheat upon herfelf, when {he faid, of the AfFeftions, idly lets go the Reins, and per-
, ,
,
EtWic. Nkom. Lib. a Ch. ii. ^ Plato, Minoe. Add. Plin. Lib. xiv. Ch. xxii. Arijloph. Vefp. Drunkennefs is all
Mif-
ehief and
all Terror : It tears down Gates and Doors, and defies Ofpofition. And then jou pay for it doubly the next Mof-ii-
ig> in
y""" Poi^ket and in your Head.
f^
Manil. Aftron. Lib, \.zz6. Ardeficit vitio vitium, virefque tninifirat
Bacchus, c? in
flamma fisvas exfufcitat iras.
One Vice adds Fewel to another's Fire,
And Bacchus makes their Fury blaze the higher.
Mr. Creech.
Mr. Barb. NOTES.
*
Our Author nlight have obfervcd, that Ariftotle contradifts himfelf, for elfewhere he thus fpeaks, -^ciMxt^Tiptf <S,
&c. It is harder to hearGriefi, than to ahfiain from Pleafure, Lib.Wi. Ch.x'n. See alfo the Beginning of Chap, xv and Lib.
vii. Ch. vii. where he maint.iins, that Intemperance is more voluntary and fliametul than the Tranfports of An-rer.
Muretus endeavours to prove the Truth of the firft of thefe contradiftorv Propofitions in his pofthumous
Comments,
printed at Ingolftadt, 1601, but his Reafons are very vifeak
; and I don't obferve that he fpeaks any Thing about thofe
Places that I fhall quote prefently, to reconcile them with that he was treating of. He had a good Opportunity, and
I doubt not but he might have prevented fo palpable a Contradiftion. All that can be (aid for Arifiotle is, that after
he had advanced fuch a Paradox, he thought it ncceflary to maintain his Propofition, and forgetting himfelf, reafon'J
at length from the Light of common Senfe and Experience; for the Pliilofophers hold this as a conftant M.ixini, That
he that yields to Pleafure is more to blame than he that is overcome vjith Grief, becaufe 'tis eafier to conquer the
firfi
than the
laft. Ariftotle
does but repeat what his Mafter Plato aflerted before him. A &. NJj i ^onsv., 6cc. Ath. Shall we
jay that he is worfi who is conquered by Grief, or by Pleafure ? Cl. He jcems to me worfe who is conquered by Pleafure, for
Tve all agree, that he who is conquered by Pleafure is fiiamefully baffled by himfelf, but the former is vanquifiied by grief. To
this we may add the Authority of the Imperial Philofopher Marcus Antoninus, Lib. ii. Ch. x. where he thus fpeaks:
Theophraftus, in his Comparifion of
Crimes, follozving the comm.on Opinion, determines as a great Philofiophcr, That thofe
which come from Luft, are greater than thofe that proceed from Anger
;
for thofe that are moved by Anger feem to
aft againft Reafon, contrary to their Purpofe, and with a fecret Remorfe
;
but they that follow their Lufts, and are
conquered by their Pleafure, appear more intemperate, and efieminate in their Faults. So that it is with great Rea-
fon and Truth, which is an Honour to Philofophy, that he adds. The Crime that is done with Pleafiure, is gre.>.ter and
more
funifijable, than that tvhith is committed with Sorrow and Grief. Indeed he that is angry refembles a Man, who
having received an Offence, is provoked by Grief to revenge himfelf, whereas the Voluptuary is moved by his own
P.a(fion to do an Injuftice for his own Satisfaftion. See further what is faid on Chap. vi. . 14.
Note 4.
*
This Author elfewhere joins thofe fort of Vices, which deprive us of the Vis of our Reafon,
cither for a Time,
or for the reft of our Life. But, to fpeak truly, the Effeft of thofe Vices, as well as Drunkennels, is not (b much
to incline the Will to certain Things, as entirely to dertroy the Principle of human .'Vdioiis, becaufe in tl;at a Man
knows not what he does. Titius
Obf. xxxvii. upon Pufendorf
0/ ?Wi' Duty
of a Man and Citi~eii, Chap. i.
J.
15.
' See what is related in the Univerfial Library, concerning the Inhabitants oi Si.a/i, Tom. x. p. 519,
'J G out
42
0/
tie trill
of
Man,
Book
t.
out of a
petulant Humour, has been pulling off
the
Roof.
Plautus
'
has a
menyjell to this pur-
pofej
fVim (fays he) ^vould be too cheap at the Price
it now brings^
if
a drunken Man might do whatever
he
pleased, without being caWd to an Account.
Yet in indifferent Actions, which are left to e-
very Man's Pleafure to performer omit, Drunken-
nefs is allow'd this Favour, that the Effcft which
would have follow'd any fuch Aftion, had it been
'
deliberately
perform'd, fhall now be utterly in-
valid, fince the overtaken Pcrfon afted with much
Difadvantagc.
And thofe Caufes which we have hitherto
reckon'd up, are the moft conflderable among fuch
as impofe a kind of phyfical Biafs and Tendency
on the Will. That which morally inclines it moft,
or at leaft, ought to incline it, is Obligation : And
yet this, how great foever, neither takes away
the Will's intrinfick Liberty, nor renders theAe-
tion voluntary, tho' the Lulls and Paffions may
ftrive vehemently to cppofe it. Hither may be
referr'd that Sentence of ^?"i/?o//f,
czroTTor to, a-
x-daix <pivai, Siv ^ cpg^jo9ar.i,
'?"
abfurd to call
thofe Tthings involuntary, lijhich we ought to defire
and to purfue. Ethic. Nicom. XiZ'. iii. Ch.m.
We fay. Obligations ought to incline the ff^ill-y
for fuch is the perverfe Difpofition of human
Minds, that frequently the very forbidding of a
Thing, raifes a Delire of doing, or of enjoying it
*
,
as Ovid AniK)r. iii.
4.
fpeaks,
Nitimur in vetiltimfemper, cupimufque negata.
^licquid fervatur, cupimus rnagis
i
ipfaque fiirem
Cura vocat.
-
'Juvat inconceffa "voluptas.
Cut peiccare licet, peccat minus : Ipfapotefias
Semina ncquitlte languidiora facit.
We court the more what Men the lefs will grant
>
Warm when deny'd, and fiercer by Rcftraint.
What's cloiely kept, improves in ourBeliefj
To hoard the Gold is to invite the Thief
Forbidden Ple;ifures have a quicker Tafte.
They that have Freedom ufe it leaft
j
and fo
The Power of 111 doth the Defign o'erthroW.
Sir Charles Sidley.
Which Unhappinefs, if we confider its clofer and
nearer Caufes, may be referr'd, partly to the vici-
ous Curiofity of Mortals, who admire every
Thing that they ai-e Strangers to (which Opinion
is ftrongly confirm'd by the HanTinefs of the E-
dift, and by the Care and Trouble of Obedience)
and partly to the Hatred and Obftinacy which we
bear towards the Forbidder, whence we difdaiii
that our Liberty ftiould be abridg'd by a Perfon
who looks fo ill in our Efteem
;
whereas, on the
contrary, it's the Nature of Love to make usv/il-
ling to comply with the Commands and Deiires
of the Party we affeft.
IX. It is Eirther obfervable. That fometimes
upon the Approach of extraordinary Dangers, and
fuch as are fuppos'd to exceed the common
Strength and Firmnefs of human Minds, the Will
is fo vehemently urg'd and preis'd, that it gives
Confent to fomewhat, which had it been free from
that Neceffity, it would have utterly abhorr'd.
Aflions of this Kind have theNameof?ai;y/, being
partly voluntary, and partly involuntary. Thus
far they are to be efteem'd voluntary, in as much
as their Principle is in the Agent, who is acquaint-
ed with the Nature and Circumftances of the
Thing he is going about : And in as much as the
Will for the prefent Time and Neceffity, inclines
toward them as toward a lefTer Evil, or toward
one Part of an Evil, when otherwife a greater or
an entire Evil muft be undergone : And this lefTer
or partial Evil turns into a kind of Good, when
both it and the Evil compar'd with it, cannot be
both avoided together. Arifiotle Ethic, ad Nicem.
Lib. v. Ch. vii. fays, A lefj'er Evil,
if
it be compafd
with a greater, may be efleeni'd a kind
of
Good. So
^iin6lil. Inftit. vii. Ch. iv. In comparing EvilSy
that which appears Ughtcfl, mufl pafs for
Good.
A-
riftot. Ethic, iii. i. Simply and abfolutely fpeaking.^
no Man in his Wits willingly throws away his owa
Goods, but
for
the Security or Prefervation
of
bim-
felf
and others. Such Anions then are to be account-
ed mixt, tho" they approach nearer to voluntary than
to involuntary.
But the ftme Aftions are likewife in fome De-
gree involuntary, becaufc the Will fccms to be
driven on them contrary to its Inclinations, and
would never undertake them, if the impending
Evil were by any other ^Jeans poflibly to be e-
fcap'd. For which Reafon they have this Qiiali-
ty in common with involuntary A6lions, that the
moral Effects and Confequences attending Actions
meerly voluntary, do in thefe, in a great Mea-
fure, if not totally, fail
'.
For tho' fometimes
a Man may have fo ftrait an Obligation laid up-
on him, that even upon the Threats and Appre-
'
jixluLir. iv. X. 10.
A/r. Barr. notes.
*
If we will make a more cuvions and exaft Diftinaion of the Effcfts of Drunkennefs, wc muft obferve how a Thing
inay be imputed to a Man which is done in his Wine, according; to the feveral Degrees of Drunkenncfs, viz. The one
moderate, which does not hinder a Man's aftini; freely, and with Deliberation; the other ftrips him entirely of the Ufe
of his Reafon. This laft Sort, if it be alfo involuntary in the Original, that is to fay, if a Man falls not into it by his
own Fault, brings forth Aftions altogether involuntary, and confequently furnifhcs him with a fuflicient E.xcufe; but
if Drunkcnnefs be voluntary in its P'rinciplc, then we muft diftinguifh Aftions indifferent from Actions unlawful.
As tothefirft. If a Man, for Example, make a Contraft, that hinders the Effefts of an Imputation, becaufe thofe fort
of Aiftihns require a particular Knowledge of what is done, and the Fault which went before them, and from which
they derive their Original, is not fufficient to make it of Force. See Lil/. iii. Ch. vi. . 5.
But it is not the fame in
unlawful Aaions ; foi^if a Man be in an Eftate, from whence 'tis his Fault if he fall, becaufe he might and ought to
hinder it, his perfed Drunkennefs will not excufe iiim from the Crimes which he has committed thro' Excefs of
Wine. And it he puts himfelf into that Coiidition on purpofe to execute fome ill Defign, he delerves a double Pu-
nifhment. Titius Ohferv. xxxviii.
*
See Montagne's
HJf^y,
Lib. ii. Ch. xv. />. 451, &c. Edit. Fol. At Paris, 16^7.
' The Author fpeaks nothing here of good Aftions, or indifferent, but contents himfelf to fpcak of ill ones only,'
Mixt good Alions are accounted for notliing ; and every one may fee the Reafon. Indiflerent Aftions done in the fame
M.inner, can no more be imputed to the Agent, for tho' there is a kind of Will, it is not fufficient to produce an
Obligation. The
Injufticc of the Autlior of Violence, rendring him incapable of acquiring any Right by that Acfion,
which is not fully voluntary, and confequcntly laying no Obligation upon hinij who never confentcd, but with Re-
gret, Tims Ohfeirv.x]. See lil/. in. Ch. yi.
. 10.
I henfions
Chap. IV.
as it concerns
moral
A6lions.
42
henfions of Death, the moft terrible of natural fpeaks, Ethic. adNkom. iii
i ^
Thofe Thims Teem
Evils, '
he ought not to recede from it
>
yet to be involuntary^'which arc'
dole
either
upon Force or
where this does not exprefly appear, it is not eafi- tipon
Ignorance. An Aaion
cannot
be
(aid to have
ly prefum'd and fuppos'd, as being too Iharp and been performed
involuntarily out
of hnorince
unkalt
rigorous for the Condition of Humanity
: And befolloiv'd ivith Sorrow and
Repentance
'
Now a
where there is no fuch fevere Obligation impos'd, Man is properly fiid to be compelVd,
when
by the
It would be downright Folly not to come off as Forceof aftrongcr
extrinfical
Power
he is
broueht
cheaply as we can, and not to luffer as fmall a to apply his Limbs
otherwife than he would lo
as
Share of Evil as wc may compound for. And to exprefs his Avcrfiition and DifTcnt bv minifcft
therefore many Things, which
'
would have de- Signs, and elpccially bv corporal
Refinance and
ferv'd Reprehenfion, had they been undertaken Reluftancy
As
if {ionic
Jrifiotle'sE^^mvhs)
the
without luch a Neceffity, when they are done fi^md,
orMenfuperiortous'inPo'wer
llmdd vio-
under the Urgency of fo hard a Cafe, are com- lently carry us any where
againfi our ConLt
Tullv
mended by all fair and equitable Judges
;
'
other in his fecondBook
oi Invention,
Lib ii Ch xxxii
Things delerve Pity rather than Revenge
;
others gives
anlnflance alter this
Manr.cr
Tlie Rhodians
again are for the fame Reafon, either entirely,
or had a Law, that whatever be.alid
VefTcl Ihould ac
for the moft part
^
cxcus'd, and in others
the any time be found in their
Harbour, it Ihould be
Odium and Fault of the Aftion is devolv'd upon condemn'd as Prize, and expos'd
publicklv to Sale
the Perfon ' who reduced him to that unhappy
Now the Quellion is,
Whether
a Veflil of this
Extremity
S
the Man who perform'd the Deed be- kind, being driven into their
Ports by a Tempeft
ing declar'd innocent. Arijlotle difcourfes well on ought
neverthelefs to fuffer the common Penalty
>
this Point', Ethic. adNicom.Ub.m. C\i.\. For
thefe 'Twas upon this Topick, that the Friends of the
hndofjaions^i^'sht^ Menarefometimes commended., ravidi'd
Lucretia
'
comforted her under her deep
whenfor theJakeofgreat and honejiThings^tbe\
have Affl:cT:ion, by turning all the Guilt on the vile
fiiftain'dfome Indecency or Hardfloip. To
fo)ne Things, Author of the Crime, telling her, Thzi the Mind
tho' we allow no
Praife, yet we grant a Pardon, when only properly
ftmfd, and not the Body : and that there
a Man has done what he ought not, upon the
fear ofE- could be no Fault where there was no Deliberation or
vils exceeding human Nature, and not tolerable by Defign.
mortal Strength. Jnd there arefome Things perhaps. This Reludancv in Civil Courts is prefum'd to
which no Man can before"dor compeWdto commit, but have been us'd in ilich Actions or Paflions as are
ought rather to endure the utmofi Extremities, and not vulgarly thought to be willingly
perform'd
or
Death
itfclf. Add. Eujirat. ad loc. But I queftion undergone, and where all Signs of an aftual Con-
whether it were proper (efpecially for a Chriltian fent are wanting
; whence arolc the Term of in-
BilTiop) to give this Example of a ml^t A6lion, terprctative ReluSiancy.
Familiarity with another Man's IFife, though m it- Thus, whereas by the
JewifJo Law a Virain
is
felffoulandfinful,yetceafcthtobefo,
if undertaken fuppos'd to have fuffcr'd
Raviftiment if Ihe loil
on the Account of killing a Tyrant.
her Honour in the Field, without
WitnelTes- vet
X. Laltly, fince to make an Aftion voluntary,
Philo the '^ew
'"
denies the Favour of this Law to
there is requir'd not only that the Principle ofMo- reach a Maid, who admitted a Debauch willin'^Iy
tion be in the Agent, or that the Agent addrefs tho' in a Solitude: As neither can the fame Law
himfelt to work by the Impulfe of his own Will, hurt a Maid in the City, who in the like
Danger
but hkewife that he knows what he is doing
j
upon either could not cry out, or cried to no Purpde
the want of both, or of either of thefe Conditions, and without Relief
'
the Aftion is rendered involuntary, as Arijktle
A forced Thing may be fo either in
itfelf, and
* Liv. Lib. i. Ch. Iviii.
*>
De Legib. Special.
Mr. Barb. NOTES.
'
See Lib. ii. Ch. vi. 2. follow! njr.
' As for Example. When a Woman, or Maid, flays the Man that makes an Attempt
upon her Chaftitv See Lib fi
Ch,\.
. It. toUowing.
'^
'
i-'". !,
' Such is the Cafe of a Woman who, in a Famine, is forc'd to eat her own Child, as it happened in the Sie^e of
y:f""\^'- ^^^frf^''
'^'''- V". de Bell. Jud. Ch. viii. and as it befel the feven
EuglifimJ/oi which otu Author
^ As when a Woman or Maid, flays herfelf to avoid the Lofs of her Chaftity, with which fte is threatned by an
extravagant Man whow.
1
lat.sfv h.s Lufts at any Rate. See I;i. ii. C^. iv.
J.
,9. l^llowin., where Mr. if.m/refers u"
to what -..e Author fpeaks L,( u.Ch. v.
. ,,. of an Husband who flew his Wife's Gall.^nt, or his Wife, when he
took tnen, m the Heat of then- Luft. But this is the Effeft of a furious Anger, and Defire of Revenge, whidi oaaht to
be referred to
. 7.
above, and not to m. Aft.ons, fuch as our Author calls them. 1 fay the fame ot^n Example whicli
Uv.Henms gives of a Woman, that poifoned her Husband and Son, becaufe they had killed a Son of hers bv a for
mer Husband. See Vale,: Max. I;i. viii. Ch. i. in the End, and ^ul. Cell. Lib.xU.Ch
7
^
rJ^'!.l'l^'/''"''''," ^A'^- ^f- -^^'i "P'T- T'''.'
^"
Application, not very proper here, out of Jujiin, of the Pho-
fn f 'h/"'"
''^^^"!['=1^' ^'?"'''^
V-''"''
^""'''' ^'''"' ""'^ Children, went and robbed the Temple of Dehhos.
>
^'^''^"
'f'^'
"P" " ^5 -^
Thmg not to be excufed altogether
;
though
they that committed it were lefs
v;orthy of Blame, than thole who had brought them to tins Cafe of befpair. Fo? fo he fpeaks, I Si IV ^irPho!
Tt,f!'lllr!'^
^^^'^
"''""'J'Ti
"
T" 'K'-f
"'""'
"(
''"
^^"''h'.
Tt
tl^e Thebans,
byu'hom they vjere compelled to
this ^ecejjity,
were more detefied than they. Lib. vni. Ch. i.
^
/ /
a Sabl> t"'^'"r
'"'^'"'"'''
1*'""^
withyZm;, another Bilhop more famous,
who fell upon n loofe Thought about
?her cone..
^
r^r"'c''
"'
r"'
^
Tr.'-''
^''^^^^')'- ^"'l M''- -B-^y^c's Dictionary
under the Head ^.y^.. See fur-
UDon de TmI"^ A.
".
'"'"' ^^'"''
"P""
''^= Account of which fome Evil in itfelf is committed, what is faid
upon the
tollowing
Chap.
.9. Note 2.
^r^ fi
^'
'"' ^' '" ^''-"' '"
''^''^g'"Sj
about the beginning Kote ,-.
^^n 1-W\'^l'
^";'-",'^'J nt "^e ">" immediate Force upon Lucretia, as when a Woman defends herfelf, as much as fhe
finod? nrn r!' ^
,'
T
.^^^'^-
^''' ^^' "' ^''"^'
^"V
Otherwife than fuch are, who rcfolve to cafl their
UrRe,,K ,
'
f'^-V"^
Perifliing. She refilled his Threa.nings of Death; but when Sexttu threatned to expof;
t. r^
'p?
"'"^
eternal D.fgrace.
fl^e d.dwhat he wiflied, and fiew'herfelf. So that this Example
does not weUaJr e
to this Place, where he is treating of mut Aaions. See Mr. BayleV Dictionary
.
^
G Z
gf
Of
moral Anions in general, &c.
Book I.
44
not
in its Catifes,
or elfe both
in itfelf and in its
Caufe.
The firfl: is, When a Perfon remains in
fuch
aState at prefenr, as to be
unable to repel the
offer'd
Violence,
and yet was in a Fault for get-
im^ into fuch a State.
Of this Kind was the Rape
ofZ)zW^,
Jacob's
Daughter'!
for the Virgin
ought not to
have
wander'd among
Strangers.
The latter is,
"When the Perfon has, not by his
own
Fault,
been brought into thofe
Streights,
a
Genefis
xxxiv.
which now occafion the
Compulfion of him to any
Faft. By the not being his own Fault, wc mean,
if he has done nothing but according to the Laws of
Prudence and of his Duty. For if a Man performs
the Office cnjoin'd him,
or ufes his Right any o-
ther way, and afts not rafhly or inconiideratcly,
whatever Violence
over-powers him, he v^'ill have
no Guilt imputed to him, and no Sin to anfwer
for.
CHAP.
V.
OfMoRALAcTioNsin
general,
and of their
Application to the
Agent, or
their
Aptnefs to be imputed.
The
Contents
of every
Seftion of the fifth Chapter.
i. What a moral
AUion is.
II. Its Matter.
,
^ /
III. Its Form,
where ive treat
of
a moral Lauje.
IV. A moral J5lion confidefd
in itfelf
is a pofi-
tive Entity.
V. the Caufe or Ground why a Hjing may be tm-
puted^ or not.
VI. Ihings not to be imputed to a Man, are Things
necejfary.
HAV
I NG, in
Purfuance of our Defign,
examined and
explained the Will and the
Underfl:anding,as
the
Principles whence
human Aftions
obtain the Privilege of
beintr ranked in a different
Clafs from the Opera-
tions of Brutes, the next thing
which we are con-
cern'd for, is the general
Difquifition
of moral Ac-
tions, fince in difcovering
their Reditude, or Pra-
vity, the Science we are now
engaged
in is chiefly
employ'd.
Moral Aftions
then,
are the -voluntary
Deeds
of
Men confider'd
in common Life.,
as they in-
clude the
Imputation
of
their Confequences
andEffeEls.
We call thofe
voluntary
Deeds,
which in luch a
Manner
depend on human Will as on a fi-ee Caufe,
that without
its
Determination
(proceeding from
its
'
internal Afts drawn forth by the previous
Knowledge of the
Underftanding)
they would never
have been
perforra'dj
and which therefore, as to
their being done or not done, muft be referr'd to
the Power of Man.
And thefe Aftions are here
confider'd, not as they are bare
Motions produc'd
by fome Power
according
to the natural Conftitu-
tion ofThings, but as they
proceed from the Deter-
mination of the Will ; a Faculty
difpos'd to em-
brace either Part of two
contradiftory
Choices. For
a voluntary
Aftion contains fomething
material and
fomething/om/ >
the firfl is nothing elfe but the
VII. 'The Operations
of
our I'egetable Faculties
.
VIII. Things impoffible.
I X
.
Things compeird., where meer Execution is treated
of.
X. Things done through Ignorance.
XI. Things doncy or feen
in a Dream.
XII. E-vils to come.
XIII. But evil ASlions., proceeding from
an Habit, mufl
certainly be imputed.
XIV. How other Mens Actions may be imputed to us.
Motion ofa Power exifting by Nature, or its Ex-
ercife confider'd barely by itfelf
j
the other is the
Dependence of that Motion or Exercife on the
Determination of the Will, as on a Caufe that is
truly free, and afts by its own Refolution. The
Exercife confider'd feparately and by itfelf, is, for
Diflinftion iai'.e, rather call'd, an AHion
of
the
Will, or of the willing Power, in a Man, than a
voluntary Action.
We may Eirther confider the AHion
'
of
the
Will, either in itfelf, and abfolutely, as it is a phy-
fical Motion, undertaken upon the previous In-
junftion of the Will, or elfe reflexively, as the Ef-
fefts of it may be imputed to the Aftor. Now
voluntary Anions, as they comprehend this Refle-
xion, are, by a fpecial Appropriation of the Word,
call'd human Actions. And becaufe from thefe
Aftions, as they are perform'd well or ///, as they
are agreeable or repugnant to their Rule, the
Law, one is faid to be a good or an
/"//
moral Man
(the Inclinations of the Mind refulting from fre-
quency of afting, being likewife term'd Morals
)
hence it comes to pafs that moral Anions fcem only
another Name for human.
II. The EfTence of moral Aftions,
'
accord-
ing to the lafl Way of confidering them, may be
divided into two Parts or Notions, ^Material
iVfr. Barb. NOTES on .
i.
The
Ori-inal is,
AfftbtnEUMs, which is better .-endied, Immedtate
Afl^
,^''f.-'-
^ ^'^^
P[^"^. "
Ch
The
Oi-i"in.Uis
Mho
Volmtatu ;
which Exp.effion, tho' 'tis ufed .n all the Editions and his hUm^ms
rJl ri.dla-v vet 'tis a plain Miftake of the Author, contrary
both to his own Diftinftion, and the
PaT-Cf his
iifcouke
fo^ he Lys pofitively. When moral Acl,o>. .ncMc \r,. &c. The 5/,/7; Tranflator wa.
ot" this.
On .
2.
'
That is to fay. As they arc
voluntary Aftions, whofc Effefts may be imputed unto Men.
apter.
of the V-
following
not aware
and
G
H A p. III.
OJ
moral Anions in
general
, &c.
and a Formal. The material Part, or the Matter ing
himfelf down a Precipice,
the Piper is aCcufd as
of a
moral Aftion, is of a very wide Extent
:
Such the Per/on ivho had caused
his
Death
AClub
of
yoiin<r
may be firll any phyfical Motion,
whether it be
Pcrfons, ivho had freo^tient
Meetings
and Entertam-
of the locomotive Faculty
j
or of the lenfitive ments, one day made an Agreement
to [up
toietherU
Appetite} or of the external
,
or of the internal the Sea-fide
-,
07ie
of
the Society
bein^ahfent
the others
Senfesi or of the Underltanding,
fo far as con- ivrote his Name upon the Stone Table
whkh
they had
cerns the Exerciie of
Apprehenfion. For the Aft reared: The young Man's Father at his
Return
front
of Judgment depends fo much on the Quality
which appears in the ObjecEt, that it is not capa-
ble of the Dircci:ion of the Will, tho' in forming
of that Judgment, our Free-will and our Induftry
'
are allow'd fome Influence and Power. The
Aft of the Will it fclf may likewife be the Matter
of a moral Deed, if we confider it in its natural
Conditionj or as it is precifely taken, for anEfFe6t
produc'd by a phyfical Power, as
fuch. So like-
a long Voyage^ landing in this Place ^ and
reading
the
Infeription on the Stone
^
took it
for his
Son's
Monument^ and hang'
d himfelf for Grief. The Com-
pany is hereupon impeaclfd as
acceffbry to his Death.
Laltly, the Admiflions or
Receptions of another
Man's Deeds, as Hir as my Default
contributed
to
their Produftion, may be the Matter of
my own
moral Aftions. Thus a Rape is partly
imputed to
the Woman, if it appear that ihe ralhly
ventur'd
wiie may be the Privation of any
phyfical Motion,
into fuch a Place, where flie might have exnefted
which a Man might have produc'd either in it felf,
to meet with fuch violent Treatment
or in Its Caufe
:
For a Man may render himfelf
III. The Formality of a moral Aftion
confifts
obnoxious toPunilliment, as well by Omifllons as in the Imputativenef of it, if we may fo fpeak bv
by Commiflions. As alfo the Inclinations of the which the EfFeft of a voluntary Aftion may be
natural Powers toward certain Objefts (acquir'd
imputed to the Agent, or eftecm'd as fomething
by the voluntary Aftions that have already pafs'd)
properly belonging to him, whether he himfel
at Icalt io far as they are Spurs and Incentives to phyfically produc'd that EfFeft, or whether he
atting. Nor are my own Motions and Habits, caufed it to be produc'd by others. And from this
or the Privations of either , alone the material
Parts of my moral Aftionsj but the fame Moti-
ons and Habits or Privations proceeding
immedi-
diately from others
,
provided they could or
ought to have been direfted by my Will. Thus
the Spartan Inamorato''s
were to
"
fufFcr for the
Faults committed by their Minions
"
. Nay,
Formality of the Aftion, the Agent likewife has
a Share in the Denomination of Morality, being
call'd a moral Caufe. Whence we may eaflly
underftand, that the Ratio Formalis of a moral
Caufe, in Striftnefs and Propriety of Speech, con-
fifb in Imputation,
confider'd with Reference to
the Perfon in whom it terminates
i
and that there-
,, ^ r
J
r-Cr,,'
"',"''
<-"^^>-">^"'" wuuiu iL Lcmunacesi anu mat tnere-
the Operations of Brutes, of \^cgetables, and of fore fuch a Caufe can be nothing elfe but a volun-
inanimate Things, may furnilli out the Matter of
my moral Aftions, when my Will ihould have
guided their Proceedings. Thus even in the Law
of God, a Mii'chief done by a goring Ox is im-
puted to the Owner, in cafe he knew before-hand
that the Beaft was faulty this way
''
. Thus a
Vine-drefTer is refponfible, if; through his NegH-
tary Agent, to whom the .Effeft is, or mufl be
imputed, upon account of his being either whol-
ly or partly the Author of it
; and that therefore,
whether it be Good or Evil, both are to be reckon'd
as owing to him
, and he is hable to give an Ac-
count for both. Thus one Man is the moral
Caufe of Hurt in another Man, whether he has
1 ' ,?.,.&":""*'"-&"
v^au.v, ui iiuiu iij auuuici j.viun wnetner ne nas
gence, the Vine has fpent all its fruitful Strength made his Head fwell by Blows of the Fift, or whe-
and Vigour in fending out numerous and unnecef- ther he has broke it with a Club, or
whether he
lary Suckers. Thus the Damages by Fire are re- has fet Dogs or Murderers upon him. Thus Anah
pairable by the Perfons who occafion'd itj and was the moral Caufe 'of Mules, he being record-
Waftes caufed by the breaking in of the Sea, or edinG^^^/^xxxvi. v. z^. to have firft found them
of Rivers
,
are to be made good by him who has out, or to have join'd the Mare and the AlTes to^e-
either broke down, or neglefted
to keep up the ther for their ProducT:ion. So Jacob was the mmnl
Banks.
Canadian
'
has propos'd two Declama- Caufe of the diiFerent Colours in Laban's
Sheep
tion Lemmas much to our prcfentPurpofe.
A Chap.xxx. v.
^j.
And thvs
Lyfm (Orat. contra
Piper had play d a Phrygian Ayre to a Man ivho ims Ayorat
)
pleading againft an Informer, upon
whofe
opring Sacrifice
;
the Man running Mad, and throiv-
Accufations many Perfons had been
executed, calls
Lib.% M.Tu. IS. Ch.x^i. V.Exod. XXI.
^q.
'^
Inft.Orat. Lib.lCh.x. andLih.nl Ch.su.
^^
Mr.^AK^. NOTE Son %.\\.
* If we will find tlie Authoi-'s Meaning, we muft remember what he has fald, C^. iii .^
.
'
7,,'',"'
T
"
""'
""^J",
"^^''' '
""S-^S^
others to do a certain Thing, or hinder him from it, or contribute to-
wavdsthcbegettmg a ccrt.i.n Hab.t, or prevent it, he is refponfible for that which he did not properly do, and in which
he was gmlty of nothing Dut pure Negligence or Want o/Acling, which is yet looked pon\as a real Aftion in refpec"
to the moral EtTec^ Th.s relpeds all them who are charged with the Management of others. See . 14. following
,
Sec Mmn s ( arwus H,fiory L,b. n,. Ch. x. and Mr. Pen^onms's Comment on it. But that Example feems to be ill chof^n
"?/
r'Y'^
'""V^
'';.''' "'"^'^
=>,''!=
'^"""0"ly to be had. It is poffible that this being fo unlike our Opinions and C.rtoms
^vhth^ T
''.S;''''5''^"'i^
,
F'- they pretended, that this Love, To dear and conftant, h.-,d nothing but
^^at n .as honeft m it, and feryed tomflame thole young Men who were the Objefts of it with the Love of Virtue, tho'
m
InZ ''ffTT^'^'\
'"' ''" '"f-imous Converfation, chiefly among the Crcehs. See Potter's Ant,c,umes
of
Greece. Thefe
inamo, ato s bemg then,
as JElmn fpeaks, Ue conttnual Guardians
of thofe they loved, 'tis no wonder th.it they were to an-
iwer tor their lienaviour.
j
j
^
;
On
.3.
-ind fn l.f
"-^''
^^\^
""r
^7-
'" ^'"'
T''"'
"^'''"'t *''-'' Iduwc.vt was the firft that caufed AfTes and Horfes to couple together.
Tot He ;mH?'T ll'
[P''i'"S.
the Original of Mules.
o^Q'
is the Name of a People, and fo ought to be tranflated.
nl'i- cl ^^
'
l'";
"'
^"S'''
'S--""ft
the :^minns, as Mr. B.r/,^ has fully proved in his
Hierozokon, Part C
^w.
.
o.xxi.
However, had the Thing in itf elf been true, this Author might better have p-ilTed over this Example.
him
4<J
Of
moral Adlions in genetal^ &c.
So alfo
Book I.
him the manifefi
Caufe of
their Death.
Ovid.
Heroid. Epifi.
ii.
147.
Phyllida Demophoon leto dedit, hofpes amantem-j
Ilk neci caufam
prabuit., ipfci
manum.
Poor Phyllis dy'd, by him fhe lov'd opprefs'd
}
The trueft Miilrefs, by the fiilfeft Guefl::
He was the cruel Caufe of all her Woe;
But her own
Hand perform'dthe fatal Blow.
Mr. Pole Y.
Yet it does not always happen, that a Man who
has barely given Occafion to the Fad of another
Man, Ihould be
'
reputed the moral Caufe of that
Fa61: : and therefore the Sentence pronounc'd by
Pifo, which tofr^ fpeaks of, was cxtream fool-
ilh as well as cruel, when ordering a Soldier to be
led to Execution, upon Sufpicion of whofe Mur-
der another Soldier had before fufFer'd Death, he
gave his Reafon in thefc Words
',
I order you to he
executed
for
being the Caufe of
the Condemnation
of
your Fellow Soldier. There feems no great Neceffity
that welTiould here, with the Author of the Trea-
tife De Principiis
Jufti
^
Decori% diftinguifh be-
tween a moral Caufe by it
felf,
and a moral Caufe
by Occident. For a Caufe by Accident is a Term of
vaft Obfcurity, and very likely to create and en-
courage vain Difputcs : And befides, if we cannot
rightly impute the Ef?ct of an Aftion to a Man,
we cannot upon any Account,
call him a moral
Caufe by Accident, tho' he
contributed never fo
much to the material Part of the Aftion. Yet
thus far we mull plainly
acknowledge , that in
weighing and rating the Greatnefs of the Imputa-
tion, it is a very important Query, whether the
Aftion proceeded from fuch a Perfon as the Prin-
cipal, or as the Acceflbry? as Hkewile, whether
the Agent diredly intended fuch an Effeft, or
whether it proceeded from his Inadvertency, or
any other concomitant Reafon ? For if the lalt
of thefe Cafes appear true, the Confequence will
be, that the Aftion fhall not be imputed to the
Perfon, as if committed againlt the Laws of
Ju-
ftice, but againft thofe of Prudence and Fore-fight
;
and that therefore he fhall not be reckon'd to have
afted wickedly, but only rafhly or unadvifedly. It
will not be amiis to examine more clofcly wha: the
above-mentioned Author lays down in the i'ame
place. Firft, therefore, he eltabliilies this as a Max-
im, Whatever is Evil in its oivn Nature^
fo that it can
never be
changed into Good^ yet may by Accident
follow
upon the Exercife^ or upon the Defence
of
my Right,
without my incurring the Guilt
of
Sin ; and therefore I
amnot
obliged to decline the Ufe of
-my
juft
Right in
fuch
Cafes. Grotius likewife
'^
propofes a Rule much to
the fame Purpofe, in his Third Book'', but judi-
cioufly tempers it with ' a good Reftriftion.
But
our Author proceeds : A Sin is
faid to follow by
Accident upon another free Acl,^ when upon the
Ufe
of
aThing., to which Ihave a Right
,
fome EffeSlfollozvs,
which 1 have otherwife no Right to produce. For an
Inftance in this Cafe may be alledg'd what Divines
call Scandal or Offence taken-, concerning
which
they tell us. That a Man ought not to omit
an
honeft, a pious, or a due Aft, though a wicked
Perfon lliould take never fo much Offence at it>
and this Rule they confirm by the Authority
of
our Saviour. But now this very Example
might
have taught our Author to lay afide his Term of
Caufa per Accidens -, fince even in that reftrain'd
Scnfe it would be little lefs than Impiety to call
him the Caul'e of Evil, who is the Spring and Foun-
tain of all Good. We ought rather to fay. That a
Manwho exerts a good and necelTary Aftion, is by
no means the Caufe of Sin in another Man, who
fhall thence take Occafion of offending. Thus we
commonly fay. He who ufes his own Right, does
no body any Wrong. But he further adds. Since
every Man has a Right
of
prcfcrviKg bis Health., it is
lawful., for the Recovery
of
Health., to make
ufe of
a 7?ie-
dicinal Potion., thd" upon the taking
of
this Potionfliould
follow Diftrutlion (for fame little time) or Drunken-
nefs., or {voluntary) Pollution., or Abortion
'
(in cafe
both the Mother and the Fatus mull othcrwife infal-
libly periih) and that therefore the Perfon who takes
the Medicine is only the Caufe of fuch Effefts by
Velthwjfen, Pag. i6i.
>
Ch. i. 5. 4. and Ch, xi.
. 9.
Mr. Barb. NOTES.
*
Hemuft (as our Author r^c:\ks'\n\\is Elements
of
:heUniverfalCivil
Law,
p. 5,4.)
either do, ornegleft todo fomctliing that
he was oblii^edto, otherwife another Man's Aftion has fo necellary a Connexion with what lie hinifeit does or neglefts, tliat
it cannot otlierwife liappen. Further, we muft confider how far he, that gave the Occafion, might know tlie Effect tiiac
would follow upon it, and that it is not necedary that he (hould certainly know it, 'tis fufficient that there was fome Probabi-
lity. I will explain this by an Example : If I leave a Piftol charged, or fome other dangerous Weapon, upon a Table, in a
Room where every body has Liberty to come, 1 am not lure that a Child, or any other Perfon will come, who, not know-
ing the Danger of the Weapon, will run the Hazard of killing or hurting himfeU, by meddling with it out of Curioiity
; ne-
verthelefs, becaufe theThing is pollible, I might fear fuch aThing might happen, and I am certainly to anfwer for it.The fame
mav be faid concerning the Good of which we have given Occafion. As it can't be attributed to us, if we were the Caufe of
it w'ithout our Knowledge, and had no fuch direft Defign, fo on the other fide, 'tis not ncceiTiry tliat v,'e be fure ot the Suc-
cefs of what we undertake for another's Advantage ; 'tis fufficient, that we had Reafon to believe it
;
for tho' the EfFcft was
notobtain'd, the Intention is very commendable at all times ; as, on the contrary, the Neglect is not altogether excufable,
although it luckilv had no ill Confequence.
'
iencM's Words are {De Ira. Lih.i. Ch.x\\.) Te duel jtileo, quia caufa damnationis ccmmUitam fiii/li.
*
This Rule (according to Gro/ij) takes place in the juft Defence of a Man's felf, which this Autlior explains in ano-
ther place. Andfoit does alfo when we labour after the Recovery of what belongs to us; for if we can recover the full Va-
lue, we haveaRiLjht to take it, nevertlielefs, upon Condition that we return the Over-plus, if any be. So alfo we may
cannonade a ShipYull of PiiMtes, or an Houfe full of Thieves, altho' we know there are fome Children, Women, or other
innocent Perfons in it, who are in Danger of being involved in the Ruin ot thofe that deferve it, lii. ih. Ch.'i
.4. Knm.i.
'
He further adds, in the fame place. Num. ii. That thofe Things that a Man hath an indifputable Right to do, are not to
beallowedhimtodoinallRefpecfs. Love to our Neighbour often hinders us from ufing that Right, and obliges us like-
wife to avoid thofe Things which do, or may happen, contrary to our Intention, at leaft, it the Advantage we aim at be not
sreater than the Damage which may juftly be feared ;
or if there be an equal Probability ofBenefit and Damage, or the Hope
of the Benefit be not better grounded than the Fear of Damage; but this muft be left to every Man's Juds;mcnt and Prudence.
But this ought only to be obferved. That where there is a Doubt, we ought to incline to that Side, tliat is more lavouvablc to
another than to ourfelves, asthe fureft Part. See what follows, and C^. .xi.
J.?,
ofthe lame Book. Sec alio what has been
faid above, Ch. in.
.7.
*
See Book vi. Ch. ii. . 6. following. '
Accident
Chap.
V.
Of
moral Aclioiis in general,
(Sec.
Accident.
On
wliich Doftrine wc only oblervc,
that it
had been much jildner to have laid, that
thofe
Effects are not co be accounted Sins in the
Cafes here
mention'd. Neither do all the Exam-
ples brought by the fame Author to illuftrate the
Kwral Caajc per
fe,
or that which is truly and pro-
perly fuch, rightly hold. Fora Criminal, as he fpeaksj
whoii tofuffar,
iho'hego on to the Place
of
Execution,
and afcend
the Ladder, cannot meerly upon this Ac-
count be call'd the moral Caufe of his own Death,
47
that whatever neither
in itfelf,
nor In its Caufc,
was in a Man's Povv-er and
DifpoiiU,
cannot be
rightly imputed' to him
'
. Nor is it any Breach
of this Rule, that fometimes a Man is
obH"'d to
perform a Buiinefs depending
on
Chance^
and
confequently not in his Power. For this
Cafe
can
never happen, unlefs the Man voluntarily
takes on
himfclf fuch an Obligation
^
. Thus much there-
fore is in the Man's Power, to bind himfelf to re-
of his own Death, pair a Damage, proceeding from Caufes not capa-
bccaufeif
he had refus'd to go wiUingly, he had ble of human Dirction. I o conclude then, that
been
dragg'd
along by the publick Officers. And an A.ftion or Faft fhould be imputed, it is fuffici-
yct there Is no Reafon why one Man who drinks ent that it was not involuntary, acccording to our
immoderately,
or another who waftes his Strength Difcomfe in the preceeding Chapter, . lo. and
in
honeii and
neceffiiry Labours , may not be re-
puted the moral Caufe of their own untimely
Deaths ; tho' the former Perfon fins, and the latter
notj and tho' neither, properly fpeaking, can be
caird a
Murtherer.
But ilich a one wc fhould
rightly call the vtoral Caufe of
his own Death, who
is therefore
condemn'd, becaufc he would not de-
clare fuch Matters as might demonilratc his own
Innocency.
IV. It mufl be farther obferv'd, that this Impu-
taiivenefs which we have made the Formale of a
moral A6tion, bears the Nature o? apofttive Form,
from which, as from the Spring and Root, all the
Affections, Properties, and Confequences of fuch
an Aftion refult. And therefore a moral Aftion
may be call'd a Pofitive
Being (at lead in the Order
oi Morals, if not ahvays in the Order o^ Naturals)
whether the Matter of it be a phyfical Morion, or the
Privation of a phyfical Motion. For to conffitute
a politive Being in Morality, 'tis fufficient that we
conceive
fomething in it, from which there arife
true Affedions of the fame Kind
>
fince as a Non
Ens can have no Affeftions, fo whatever has cer-
tain and pofitive Afteftions cannot upon any Ac-
count be Itil'd a meet Non Ens.
V. Now, that a moral Adtion fhould belong, or
iliould be imputed to any Man (in which we have
alTcrted the ratio formalis of it to confiil) there can
be no other Reafon or Caufe , but that the Man
had Power and Ability to do it, or not to do it
;
to perform or omit it. And this is ib manifeff a
Truth, that the mofl: ignorant and unskilful Mor-
tals, when they are accus'd of any Omiffion, or
ofanyFaft, think they cannot bring a fairer Ex-
cufe, than to (;ty in the firft Cafe, 'That they could
not do it, and in the other, that they could not help
it. So that It is to be effablifh'd as a prime Maxim
in Morals, That a Man is accountable for thofe Ac-
tions, the Performance, or the Forbearance of which
were both in his Power : Or (what comes to the
fame thing) that every Action dirigible by a mo-
ral Rule, which a Man is able to do, or not to do,
that it was fubjeft to the Guidance of our Will.
But to make an Omiffion truly imputable, 'tis re-
quifite that there have been both Power and Op-
portunity for Performance, which Conditions of
Power and Opportunity feem to conclude thefe
four Things,
Firfi, That the Obje6t be ready at
hand. Secondly, That we have" a comm.odious
Place, where we may neither be hindred by others,
nor fuffer any Evil from them upon our a6ting.
thirdly. That we have a convenient Time, in
which we are not call'd to the Difcharge of more
necefl-iry Duties, and which is equally feafonable
for thole v'ho are to concur with us in the Ac-
tion. And,
Laflly, That our natural Powers ad-
miniff:er fufficient Strength for the Bufinefs, When
any one of thefe Conditions is wanting without the
Fault of the Man, it would be molt abfurd and
unjult to lay the OmiOion of any- thing to his
Charge. Cicero de Invent. Lib. i. Ch.xxvii. Occafion
or Opportunity is a Part
of
Time im.plying a Conve-
nience
of
doing a thing, or not doing it. See Cartes
of the Palllons. Art.
144, 145-, 145.
VL Thus much being premis'd in general, it
will be worth our while to confider moie diftinft-
ly and in particular, what Things may be imputed
to a Man, which proceed from a phyfical Necef-
fity, or from any Caufe placed beyond the Di-
rc(Stion of Men. And therefore 'tis a finiple
'
Pra6tice they tell us of the Kings o't Mexico, that
at the Commencement of their Reign they us'd to
promife their Subjects, that they'd take Care the
Sun fhould rife and fet at due Times ; that Rain
fhould fall as often as there was Occafion
;
and
that the Land lliould bring forth Fruit. Neither
can it be imputed to Man, that natural Caufes
produce this and no other Effect, or that they
produce it in this and no other wayj as for In
-
Itance, that the Fire warms, and not cools us.
Yet thus ii:ideed the EfFefts of natural Caufes fur-
nifh large Matter for Imputation, as their a6tive
I'orce IS drav/n out, or confirm'd by Man, ap-
plying Actives to Paffives, or exciting their
may be imputed to him : And, on the contr.ary, internal Strength by proper Means. On which
Mr. Barb. NO TE S on Chap.
V.
. v-
Culfam autem nullameffe, cum id, quod ab hom'tne
pmftarl
non potuerit, evenent. Cicer. Tufcul. QiicEft. Lib. iii. Ch. xvi.
^
See what is laid Lib. v. Ch. ix. followiiijj. Sometimes alfo we miift anfwei- for an accidental Miiciwnce without eng.-iging
mit, bec.-iulc we li.ive net;Ieacd to do aThin;^ which wc were obliged to do^ altho' the Negleft itfcif did not contribute
at all to the unforcfeea Accident. See Lib.iu.Ch.i. 5.6. Note ^. 3.a6.Lib.\. Ch. v. . 3. following.
NOTES on Ch^^.Y.^.Yi.
This Author ought to have mention'd theHiftori.in who relates thisFaft. Mr. Titius {Obferv.^-.)
relates a favour-
able Explication, which a certain Perfon (viz. Kreh'iTreMKe De Lir.o' Lapid. Part.l.Clafsll. Se^.u. .J.) gives of this
rromile.
According to him it is the Eiieft of great Wifdom, a"nd thefe orood Kings would have Men underftanJ
r.o more by it than this: That a Prince by his good Laws, and by the Prudence and
Jnftice of
his Government, caninfome mea-
jure fo order the Stars and Elements, that they Jhail promote the good
of his Subjects Upon this Foot their Aflertion, as ab..
Jiirdas
It may
fccm at firft Sight, is not altogether without Ground, and proves, that even the ^wenV.j Princes arc Icfs
barbarous than many
European.
Account
48
O/'
moral Actions in general, &:c.
Book L
Account
a
Plenty of Fruit is imputed to the Hu{-
bandman,
iaafmuch as his diligent Culture ob-
raia'd it trom the Earth : Thus the Damage of
Fire is imnutcd to him that kindled it
;
and thus
the
varied'Colour of Labarfs Lambs may be im-
puted to the Subtilty of his Shepherd Jacob ^ A
natural Effeft may be farther imputed to a Man
as he has mov'd the fupream Caufe and Director of
all Thing's to determine
'
fuch an Effeft. Thus
xhtT'lrrce Tears Drought m\^-\x. be imputed zo Elia-s^.
As m fabulous Story a long Drought is laid to
have ceas'd on the Prayers of ALaciis
^
.
Thus too,
the Death of the Men who fell in the Peftilence ^,
might in lome mcafure be imputed to David^ tho'
not to the Degree of a Murther.
VII. Neither may we impute to a Man the
Aftions and the Effefl-s of vegetative Faculties
which appear in his Body, as they anfe from his
Birth, or from other Caulcs beyond his Difpofal.
Yet thus much is in a Man's Power, to fupply
thofe Faculties with convenient or with unfuitable
Object?, which may either maintain and cherilli,
or weaken and extinguifh their Force
j
as alfo to
diflort and abufe their proper Organs. Thus he
to whom Nature has given a large, a found, and
an able Body, is liable to no Imputation of Merit
on that Score. But to corre6l aweak Conftitution
by Indultry and Exercife, and to increafe the na-
tural Powers, gives juft Occalion for Commenda-
tion
>
and, on the contrary, to break ordeftroy
the fame Powers by Idlenefs and Petulancy, turns
to a juft Shame and Reproach.
Hence no Man can be fairly reprehended for
a weak, or a tender, or a diminutive Body
j
for
diftorted, or for maim'd Limbs, or for want of
Strength
,
provided that none of thofe Infirmities
were contracted by this Default.
'
Jrijiotle talks
very pertinently to this purpofe. Ethic, ad Nicom.
Lib. i'li. Ch. v'li. Qu /uo^ou ci^s oil v -^v^i Kccxixi,
&c.
"
Not only Faults of the Mind (fays he) are
*'
Voluntary, but thofe of the Body too in fome
"
Perlbns, whom we therefore difcommend. For
"
we do not blame thofe that are naturally deform-
"
cd, but thofe who are grown fo by neglect of
*'
Exercife, and by a carelefs way of Life. And
*'
the Cafe is the fame as to any Meannefs or Un-
"
fightlinefs ariling from Diftempcrs, or from the
*'
maiming of any Part of the Body. For Men will
*'
not reproach, but rather pity his Blindnefs who
*'
had it from Nature, or from a Diftemper, or from
*'
an honourable Wound: But he will jultly fall
"
under univcrlal Scorn or Cenfurc who has loll his
"
Eyes by Drunkennefs, or by any other kind of
"
Intemperance." Plutarch dc jf:idie-f2d.Poet.Cpezks
to the lame Purpofe : Ulylles doth not upbraid
Therfites iiith his Lamencfs^his Baldnefs^ orhis Crook-
hack^ but ivith his Scurrility and Impudence. Thus
the wife Poet filently derides thofe who areafham'd
of Lamenefs, Blindnefs, or the like Defeats
>
it be-
ing his Judgment, that nothing can be Blame- vv^or-
thy v%-hich is not vicious, and fiothing vicious the
Caufe of which is in Fortune, not in ourfelves.
Js
thofe vjho
brufi
or jirike Cloaths touch not the Body,
fo
thofe ivho cenfure others
for
their ImperfeSlions
of
Birth or
of
Fortune, 'vainly andfooliflily firike the out-
ivard Parts, but never reach the Soul, nor thofe Blc-
mifies
ivhich really deferve Reprchenfon and Correc
tion. Ibid. Add. Sympof
Lib. ii. Qu.i.' Yet it was
not without Reafon, that among the antient G<?aZf,
as lyZ/VT^o relates, Z-/^. iv. The young Men were
fin'
d
for
exceeding the Aleafure of
their Girdle: Becaufe they
took it tor granted, that fuch a large Paunch, at fuch
early Years, could proceed from nothmg elfe but
Lazinefs and Gormandizing. So Hiys Nichol. Da-
mafcen. de Mor. Gent. The Iberians
ufc aGirdleof a,
certain Mcafure, and ivhoevcr
fiffers himfelf to groia
beyond thofe Bounds, is look'd upon as highly infamous.
The fame may be laid of the other Faculties
which Nature, and not our own free Pleafure,
has implanted in us ;
as that a Man has fharp or
heavy Parts, quick or dull Senfes, a firm or a de-
ceitful Memory
;
unlefs thefe natural Abilites
have been improv'd or impair'd by the Man him-
felf Hither muft be referr'd that Obfervation of
Ariftotle in his Ethicks
%
Many Things according to
our Nature we do andfuffer, which we are truly con-
fcious
of,
andyet which cannot be calVd Voluntary or
Involuntary : as to grow old, and to die. Thele
Things therefore are not proper Matter ofImputa-
tion. Neither can the getting of wicked Children
be imputed to Parents, provided they have not en-
courag'd them in their Vices by ill Education.
Whence the witty Turn oi Vindex will not hold in
ftrift Truth, when he faid. That NeroV Mother was
jujlly put to Death by her Son, for bringing
fuch a
Monfltr
into the World
^
j .
VIII. It's evident likewifc. That thofe Things
cannot be imputed, which exceed our Strength,
either as to the Hindrance or the Performance
of
them : Provided that this Inability has not been of
our own finful
'
Procurement. On which Foun-
dation are built thofe common Maxims,
That
Impoffibilities are incapable of Obligation
-
j
That no Man can be conceiv'd to have enjoin'd
impofliblc Duties in a Law >
and that therefore
if any fuch
^
Thing occur in a Statute, or a Co-
Apollodor. Lib. iii. Cli. \\
^ I Sam. xxiv. ij,
17.
=>
Gen. xxx.
57.
>
i Kings xvii. i. James v. 17.
t
Lib. V. Cli. X.
f
Ph'iiojl. A^iWon. Lib. v. Ch. x.
'We muft cxpl.iin the Words ot our Author, who fays only. Ad eum effeHum
detennmandiim, f. e. to determine that
Effeft; for it appears by the following Examples, and by the Nature of the Thing, that he treats here not only of the Ex-
illcnce of the EfFeft, but alfo of its Non-exiftence and Difcontinuancc.
NOTES on . viT.
'
Plutarch's Greek is, 'O spiri'T!!? iJsA> t5 'Ci'vositii, i ^uXoi, a
^/x(>'o?, s y-vfrci, a>i. ijcfiTojtAi;fl(^ ^we^iiritt 1
O^T<a; "OiAijf^ xct)ays>.K x ai"^iv<i|/!v4 sot ^^uXiryiTiy, Tv^>.iT/,irn', XTt ifixTct v,'/sim^~ ri /n i^ :, nn tti^fa to
^q V
S'ua-yiniot^ ovja i^'.^rsc,^ ji'^ tos cJtilo? iv)iivrra.i xifacj y^ otKJiJTAf?, 'f "^v^^ J\^ v S-tfyuvntnif zefi T ^A<jdfi;c iTxiDBaffse>'i etoutuecy^ tc^
otiiiui. Plut.
p. ;5.
Ed. Wech. Tom. ii.
'
The Greek is, T-in yuc i/i/irifcc c*
^ly-f
atrtxToijai, i^i^/i reiS.-o* 'srsxt. \
NOTES on . viu.
'
In this
1.1ft Cafe we may lawfully be treated in the fame Manner as if we were in a State of atf ing. Otherv.ife,
as foon as any Obligation we are under becomes in the leaft punifliable, or incommodious, w-e fhall find a Way to
avoid it, by putting ourfelves on purpofe into a Condition un.ible to fulfil it.
*
ImpoJJibilwm nulla oiligatlo ejl. Digeft. Lib. 1. tit. 17.
'
See Lib. iii. Ch. yii. . 2, c/c following.
^
venant
C H A p. V.
O/"moral Adiions in general,
Sec.
49
venant,
ora/F///,
it is either to be efteem'd as that the
fulfiUingof the
Law is
mpoj(J!bU^andyet that
null, or elfe a more commodious Interpretation of that Impojjibtlity does not injure
the Liberty
of the
it is to be found out
*. To this Purpofe we meet ^ill. For "tis equally i'npojfible
for a particular
Man
with a pleafing Paflage in Hcvodottis
*'
j
he tells us, to obey GodV Command in all
Things
and
for a
that when 1'hcmiflocles
defir'd a Supply of Money Multitude to
abfiainfrom all manner
of Lyinj^,-
^^^
from the Inhabitants oi Andros^ fupported by the he is as able to preferve him
elffrom each
particular
two ftrong Goddcfles Perfuafwn
and
NeceffUy, ^5t
of
Sin, as the particular Citizens are to keep
them-
the Jndrians oppos'd him with two ftronger God- fel-vespurefrotn Lies ; andyet this is never likely to hap-
defles, Poverty -isA Impoffibility
.
But here it mud />f/w //j^/For/rf'. Which Dolnnc,cs it is applied
to
be carefully obferv'd, that it is one Thing to be Theological Points, we leave to be difcufs'd by
the
phyfically, and another Thing to be morally impof- proper Profeflbrs. But if it keep with in the Bounds
fible. The former ImpofTibility lays an Obllacle, of human Courts, it does not apoear
why this
which binds up the Will in fuch a Manner, that fhould not rather be admitted, than that Afiertion
either it cannot break out into Aftion, or elfe that ofGrotius
'^^
where, fpeaking of thcle Sins which
it iTiall lofe all its Labours and Endeavours. But fomc call Sins
of
daily Incur/ton, he fays, It may
a moral Impoffibility lays no Impediment furpaf- 'well be doubted whether
fuch as thefe may rightly and
ling the aftive Power which inheres in the Will, properly be called Sins, becaufe, though ivc arc at Li-
but on the contrary arifes wholly from the Will berty as to the doing each Particular, yet we
feem to
itfclf And in this Manner, we lay, 'tis impofli- lofe that Liberty, -when we confider them in general.
ble that all Men Ihould confpire together in deli- For how can thefe Failures, taken colleftively,
c-
vering down a Lie to Pofterity, without any Pro- fcape the Nature of Sin, when at the fame time
fpeft of Advantage: Or that any Man fhould lead each Particular of them is acknowledg'd to be fin-
si Life of fuch exadlHohnefs and Circumfpedion
"*,
ful? Tho' indeed fuch fmall Slips are in human
as not to offend (at leaft through the Precipitancy Cognizance fcarce look'd upon as punifhable.
of his Paffions) in fome fmaller Inftance of Duty. IX. Neither canthofeThmgs be imputed which
Hence the Author of the Treatife Dc Principiis a Man does or fuffers
'
upon CompuUion : For
fufli 13 Decori " infers, That a Lcgiflator cannot in- they will belong, in moral Eltimation, to him who
deed enjoin what is phyfically irnpofjible, but he may offers the Force, and he that recciv'd or executed
exaEl Obedience to Things which include a moral Im- them is look'd upon only as anObjeft oranlnlbu-
pojjibility. Becaufe in this he commands nothing con- menr. 'Tis a Rule with Dionyftus Halicarnaff'aus
trary to the Liberty
of
the Will, fince all the
Diffi-
'
That every Thing which is involuntary deferves Ex-
culty
of
obeying arifes from the Will itfelf. Thus''tis cufes. And Cicero ''argues with good Reafon,
not impnffible for any Manto frame a Lie gratis; and when he fays.
If
we are obliged
to pardon
thofe who
if
not
for
any Man,thennotfor
the whole Multitude -j hurt us out
of
Ignorance, we are not bound to thank
and yet His certain that the whole Multitude will not thofe who
benefit us out
of
Necefjity. Now Com-
do
fb.
In thefame
Manner every Man has the Power pullion is fuppos'd to be apply 'd, not only when
offpeaking Truth, and confequefitly a whole Society the Principle of Motion is in another Man, who
or Community; and yet 'tis
-moft
certain, that a Com- by Force bends the Members of a Perfon, to fome
ip.onweaUh will never be
fo
happy, as to have all its Ation or Suffering, of which the Perfon by
Members ab/iain from falfe
Speeches
: yet this
Impof- ftruggling and refifting, expreffes his Abhorrence
j
fbility does not take away the Liberty
of
particular but Ukewife, when a Man, by the Peril of Death
Men, or excufe
them from finning. Thus too we
fay.^
or of any
'
other extream Evil, is put upon the
'
Ov'id. de Pont. Lib. i. EI.
7.
.Nulla poteut'ia vires
Prsjlandi, ne quid peccet amicus, habet.
So fai' c.\n no Decrees of Power extend.
To purge all Frailty from a mortal Friend.
&liintTdiin. Infl. Lib. vi. Ch. iii. We ufually reckon it inhuman to upbraid a Man with his ill Tortune; either
becaufe it
cones without his Fault, or becaufs it may be the Cenfurer's Turn to
fiiffer next.
*>
Uran.
'
I'elthuyfe/i,
p. 174,
<
Lib. li. Ch. XX. .19.
ii^. i.
f
De Invent. Lib.LCh.xxx.
Mr. Barb. NO TE S on . vtii.
*
Mr. Hertius alledges here the Encomium which Valerius Paterculus gives Scipio /EmilianHs, viz.. That in all his Life
he never did fpeak or think any Thing, bu: what was commendable. Lib. i. Ch. xii.
NOTES on .p.
^ Our Author here fpeaks of the Extremity that one is reduced to by tlic immediate Violence of a Perfon, who will
force us to futfer, or do fome thing. But he ought alfo to have fet down wiiat a Man is conftrained to do by otlier
Circumftances, which are not lefs preding, and no lefs exclude ail Imputation. In a word, we ou'^ht to reduce to
this Head all the Eft'efts o( NecefTity in general, of which we fliall elfewhere fee the Benefit, Lib. iC. Chab. vi. where
the Padagcs in the Margin may refer to the Cafes of Neceflity, whicli are omitted.
'
Which he may fuffer in that very Inftant, as this Author adds, in his Abridgment
of
the Duties
of
a Man and Ci.
tiz.en. Lib. \. Cha^. i.
J,
z^.
H Execution
5<^
Oj
moral A61:ions in general, &c. Book
L
Execution
of 'fome Enormity to which he is c-
therwife
exceedingly averfej
yet fo that he fhall
not be the Author of the Deed, but the other Per-
fon who compeird him to it. Examples of the
former kin^ are,
when a Man by Superiority of
Strength violently
thrufts another upon athirdPer-
fon, or ftrikes him with a forcible Bend of the o-
ther Man's Hand : Or when any one commits a
violent Rape upon a Woman that did not provoke
his Lewdnefs by her own Fault. Her Body in-
deed, in this Cafe fufFers Difhonour, but the Ble-
mijh doth not reach her Soul. 7'he Bodyisfiaiti'd^
hut the Mind is pure, fays Lucretia in Livy, Lib. i.
Ch.
f8.
See Hen. Stephens's elegant Difcouife on
that Story in his Jpolog. for Herodot. Ch.xv. But
a Nymph will not have the Benefit of this Inter-
pretation, when with a faint Refiftancefhe lets her
Ring be ftolen off from her
*
digitus male pertinax,
as Horace calls it. An Inftance of the latter Com-
pulfion may be when a Sergeant, or a Guards-
man is commanded to kill a Manwhom he knows
innocent, under Pain of being immediately kill'd
himfelf upon Refual: For he can by no Means lie
under an Imputation in this Cafe, fince nothing is
enjoin'd him but the bare Execution, which in it-
felf is agreeable enough to hisPerfonandCharafter,
and ought not to be refus'd upon the Hazard of
lofing his Life : Efpecially fince tho' he threw a-
way himfelf, he could not by that Means fave the
other innocent Party.Yet it muft be confefs'd,that
the bare Execution of fome Acts is fo very foul and
deteftable, that it is a generous Bravery for a Man
rather to die, than to apply his Body to fuch O-
perations, tho' if committed, the Fault of them
would not light on himfelf, but on others. To
which Cafe the Paflage of Arijlotle relates, above-
cited: An Inftance of it may be, Suppofe a Man
ihould be commanded to commit a Rape on his
own Mother, which Faft, in Oedipus, tho' com-
Xenophtn. Cvropxd. Lib. ili. / take all thofe Thing! which
Men tdmm'it thro' Mipke, to he done agalnfl their Inclina.
tion
andDejign. Euripid. Hippol. Coronat. ver. 1354. Tour
Ignorance and Error cleanfe the Deed from Jinful Stain.
Mr. Barb.
NOTES.
'tis in the Original, Prefent or Future, which is a plain Miftake, and ought to be correfted thus, Prefent or Pafi,
for that a future Crime be imputed by way of Retrofpeftion, upon the account of fome Aftion, which it is necelfa-
rily confequent upon, that Aftion nnift neceflarily be produced. This is fo true, that the Author himfelt, in his Ele-
ments
of
Univerfal Civil Law, P. 568,
from whence thefe Words are copied, exprefles himfelf exaftly lo. Neither
the Englilj Tranflator nor Mr. Hertius were aware of this Miftake, which quire fpoils the Senfe.
'
Retnotum
eft,
quod ultra quam fatis eft,
fetitur, hoc modo : eiuod
ft
non P. Scipio Cor.ieliam filiam Tderio Graccho
tollocaffet, atque ex el duos Cracchos procreajfet, tanti feduiones natt non effent ;
qu.ne hoc incommodiim Scipioni afcribendum
videtHr. Cicero de Invent. Lib. i. Ch. xlix. See alfo the Thought of Vindex above,
J. 7.
,
5
*'
fome
C H A p. V.
Of
moral Adlions in
general,
&cc.
53
"
fome
Perturbation
of Mind." And the Empe-
ror
JntoniuHS
frequently advanceth the like Doc-
trine
^ But
Jrijiotle hath in many Places refuted
this
Opinion. As when
''
he recites the following
Argument of Socrates ', defign'd to prove, that
it wai not in our Po^ver whether ive ivould be good or
bad:
"
Becaufe, fuppofing we Ihould ask anyone,
*'
whether he had rather be juftor unjuH:, no Man
*'
would choofe Injufticej whence it fhould ap-
"
pear, that if fome Men are wicked, they are not
"
wicked of their own Accord, and confequently
*'
none are of their own Accord good." In Con-
futation of which ^r//?o//6' hath us'd thefc Reafons
>
"
That it would be abfurd for a
Lawgiver to
*'
enjoin good Aftions, and to forbid and to pu-
"
niih Evil, unlefs both were
i(p' t\jun-y
in our
"
Poz^er : And that otherwife there would be no
*'
manner of Caufe why Virtue fliould meet with
"
Praife, or Vice with Difgrace and Reproach.
In another Work
"
he handles the Point more at
laroe, and with good Reafon
'
rejefts that com-
mon Argument of the Stoicks, All defire and
fol-
lozo ivhat appears good to them ; but now no Man is
Mafter of
his oTon Fancy^ but the Ends he purfues
appear to him
juft^
according as he is inclined
and
dfpos'd.
For in fpight of this Objeftion, the Un-
derilanding of what is juft, and what unjuft, muft
be acknowledg'd both to be in the Power of Man,
and to be attainable without much Difficulty or
Labour
**.
In the flime Place Ariflotk well ob-
fcrves, that as Ignorance contraded by our own
Fault doth not render
an Aftion involuntary, fo
neither can an ill Habit, or
a Mind corrupted by
Frequency of finning * .
"If (fays he) a Man,
"
not out of Ignorance,
does
Things
which
"
may denominate him unjufl:,
he is
voluntari-
"
ly, unjuil} but he cannot, at his
Will and
"
Pleafuic, turn from unjuft to juft
again
(but
this we are to underftand
J
,
either in a
compound
Senfe,
/".
e. that he cannot be jult and
unjuft
at
the fame Timej orelfe in this Meaning,
that
the
bare Will cannot prefently abolilh a confirm'd
Dillemper of the Mind
;
tho' by long and
carneft
Endeavour it may be overcome) "
no more than
"
a fick Man can be found again when he plea-
"
ferh, tho' his Sicknefs, perhaps, was voluntary,
"
occallon'd either by his intemperate
Way of
"
Life, or by his Difobedience to the Orders of
"
his Phyfician: Such a Perfon at firft had it in-
"
deed in his Power not to be fick
j
but when he
"
hath once negleted his Health, it is not in his
"
Power to reltore it : In the fame Manner, as
one, who hath thrown a Stone out of his Hand,
cannot recover it again, though at firft he had
the Power of throwing or not throwing it.
Thus the unjult and the intemperate,
at fiift
"
might have been otherwife, and therefo.e were
"
voluntarily fuch, but being once under thofe
"
Conditions, they are not at Liberty to be with-
"
out them; that is, before they have rciorra'd
"
and correfted themfelves ^
".
It may not be amifs to caft an Eye upon what
the
(C
(C
a
Lih.'xs. .3.
ii^.vii. .2i, 62. tib^yM,
.14.
C/;. vii.
^
Vid Euflrat. ail loc.
Lib. xi. .18.
> Magn, Moral. Lit. I, Ch. is.
Ethic.
Lib. In.
Mr. Barb. NOTES on . xiir.
_
*
SaiKfuSTi); jip;), ix. tp' iyM yfi/<^ to a-m^uiiii iitat it (pnuXnc,' ii
y^
tk,
(fio""", wTi;V^I antic Zy, ^Tariset ui /SsAoiTo o!km^
thai, ao'tx.^, iSug ccv AfysiTo tkh uotr-i'M
(TSAov a? 1 (fci-j>iOi TiHi unv, ix, ix-Lmii tl)i<ra cpiuXoi a^t S%'ao
on isfi (rtrx^Mst, Magn. Moral. Lib.'i. Ch.ix. We mny obfei've, that there is fomething of Truth in this Notion, viz.
That ordinarily Men do not fin for nothing, nor do any ill Thing purely and fimply for Evil-doin". 'Tis a common
Maxim ufed by Sahift, Men are wicked
for Rewards, take away them, and [carce any Man will do Evil, Orat. 2. de Re-
pub. Ordinan. See ii^.iii. Ch.'i. .\. Note i,. following, and iii. viii. Cb.\\\. .xix. Note 1,2. The lli^e. of this Prin-
ciple is to make us merciful to our Neighbours Faults, a Confequence which the Emperor Antoninus draws from moft
t the foregoing Places; but when we deal with our felves, as we never are fevere to our own Faults, let us turn the
Balance, and always fay, as Max. Tyriiis, though a Platonift, expreflTes himfelf pitiiily and in a few Words. Ex-na-m ij
y-'^X.^ntlcc
To underftand this 'DiR.inEHon of perfe/1 and imperfeH Obligation, fee C^*?/. vii. of this Bw^-, .7.
and.BM*iii. C*.iv.
. 3,
Sec. See alfo what has been faid before, Ch. \. . 19. concerning Pouer.
*
To this we may refer a Law of Seleiicui, commanding, ThMwhofoever of
hts Subjeffs happening to be indifpos'd, JJiould
drink pure Wine, unlefs upon the Advice
of
a Phyfician, if
he^recover'd, fliould fiifer Death, for
exceeding the Bounds
of
Tempe-
rance without exprefs (jrJers. Which Penalty was, no doubt, unreafonably fevere. JEHan.inV.H.Lib.'n.Ch.\x\\n. But
the learned Dr. Betitley is of Opinion, that all the Laws which pafs under the Name of Seleucus, and of which we find divers
Trai'inents in Authors, are all forged. See his Englijlt Dijcourfe on Phalaris, p. 535.
and Novell, de Repub. des Lett, by
M\\Benmrd, June 1699.
Art. v.
, , r^r r ,
5
The Author will treat of them Li^. viii. C^. v. . iii. There is a curious .icademick Dilcourfe upon this Subjeft, among
his more choice
acadamickDiflertationS (which I iTiall fometimes quote)
printed at Lunden h\ Sweden, An7io
\(>t^,
and re-
printed MArijfierdam,
under the Title of Anaietla PoUtica, i. c Politick
Fragments, fome Years fince, if I miftake not.
*
This is the Effeft of all Laws obligatory, for as for the Laws of fimple Fermiflion, of which we fhall fpeak A'o/e i.
. I';, the Effcft is to give a moral Right, or Power, to have certain Things
certainly and lawfully, or to do and require
certain Aftions of another, if we judge it convenient. SeeChap. i. . 19. 20.
aforegomg.
*
This Author 'Tivcs the general De'tinition of the Inftitutes, which properly relpefts Payments, or all other Engage-
ments which Men enter into of their own
Accord, with Relation to another; for thus it runs, Obligatio
efi Juris
vincu-
lum quo mcefitate alrmgsmur alicHJus rei folvendi, fecimdum nojlmcivitatisjura, InJIitut.Lib.w. Tit.
14.
princ.
Now,
1
Chap.
VI.
Of
Law in general
^i
Now,
altho' there are many other Things pofe; may put himfelf
under fucli a Condition ag
which
have an Influence on the Will, in bending that it Ihall be unlawful for him afterwards to re-
towards
one fide rather than the contrary, yet Ob- cede.
ligation hath this peculiar Force beyond them all, Now a Man is fuppos'd to have
chan?'d his
that whereas they only prefs the Will with a kind Will, not only when he exprclly declares
his pre-
of natural Vv'eight or Load, on the Removal of fent Dillike of his former Choice, but
likewife
which it returns of its own Accord to its former when he hath done any Thing inconfillent
with
Indifference , Obligation afFeds the Will in a mo- his preceding Refolution. And from this Princi-
ral Way, aadinfpires it inwardly with fuch a par- pie maybe deduc'd the greateft Part of what the
ticiilar Scnfe, as compels it to palsCenfure itfeifon Civilians deliver concerning Repentance, or the al-
its own Actions, and to judge itfelf worthy of fuf- tering of a Purpofe. For, if we enquire after the
fering Evil, if it proceed not according to the general and ultimate Caufe, why to repent of l
Rule prefcnb'd. And hence alone we may under- Defign fhould in fome A^s be lawful, in others
fland howfufficient the Strength of the Obligation not, we fhall find it to be no other but this, that
is to the bending and inclining the Will
j
fince fome Afts are attended with an external Bond,
there's nothing but the Thoughts of that Good or which forbids any Change of Purpofe once de-
Evil
*
which our A6tions may bring on ourfelves clar'd; whereas in the reft, the Will is left to the
or others, that can lay any Necefllty of llich a Exercife of its intrinfick Liberty. The former
Performance, or of fucn an Omiflion, upon the Cafe ufually happens, when, upon Suppofition of
Mind of Man whilft in Debate about future Con- a Change in one Man's Refolution, fome other Man
cernsj fuppofing that the Will is allow'd its pro- would be highly injur'd and' prejudic'd, and fo
per Liberty, and that fuch A6lions are to be exert- Occafion would be adminiftred to the breaking off
ed, as may be properly imputed to the Agent. And of all Society and Commerce amongft Men. And
in this Rcfped: chiefly. Obligation differs from therefore from a Signification of the Will, this
downright Compulfion, that altho' both do ulti- other Man is faid to obtain a Right, by Means of
mately reprefent fome Objet of Fear, yet Com- which he isnowimpower'd to make the promifing
pulfion only fhakes the, Will with an external Party fland to his Word, and upon Default may
Force, and drives it on to the Choice of an un- profecute him by Force, either fuch as he himfelf
grateful Thing, by the bare Senfe of approaching can exert, or fuch as proceeds from the fupreani
an imminet Danger : whereas Obligation doth far- Ruler, according as the Perfons Uvc, either in a
ther engage the Perfon to acknowledge, that the State of Nature or of civil Society. Therefore,
Evil denounc'dagainfl theTranfgreffionof fuch or when upon Declaration madeofmy Will, another
llich a Rule, doth not undefervedly fall upon him, Man doth not obtain a Right over me, I am then
fince byobferving the Rule he might have declin'd at Liberty to repent of what I have done. And
and efcap'd it.
fuch a Right over us is then not obtain'd, when
VL As to Man's being capable of receiving 0^- the Sovereign, under whofe Pov/er we Hve, hath
ligation, one Reafon how he comes to be fo is, be- not given another Man Authority to require and
caufe he is endu'd with Will, which can turn to exaft that from us, which we have fignify'd
either Side, and fo guide itfelf by a moral Rule
;
as our Intention'. And hence it appears why
unhke thofe other Beings which by fome intrinfi- pofitive Laws may be repeal'd by him that en-
cal Conflraiht are determin'd to one and the fame adted them
}
becaufe they do not convey to
Wayof afting. Whence it follows, that fo far as the Subjects any fuch Right upon the Legiflator,
no Neceflity is interpos'd by any external Princi- by Virtue of which they may demand and require
pie, Man mufl: be conceiv'd to be perfelly free, their Continuance. Tho' fome Commonwealths
and to have a Power of doing all thofe Things have endeavour'd to preferve the Perpetuity of
which fill within the Sphere of his natural Strength their Laws, by obhging the Members to declare
and Ability. Nay, when he hath once determin'd upon Oath, that they will not confent to their Al-
and refolv'd with himfelf, or when he hath once teration. Nay, tho' at the End of the Statute
made any Choice, yet in the Determination, Re- or Ordinance a Claufe fhould be affix'd^ pronoun-
folution, or Choice, confider'd purely as they cing all Decrees that may hereafter be made con-
proceed from the Will, there is no fuch Force, trary to this, to be null and void, yet fuch a
but that he may, at his Plealure, rightly change Claufe cannot hinder the altering or reverfing of
or relinquifh them : unlefs there intervene fome a Law by which no Man has obtain'd a Right,
outward Reflraint, forbidding any Alteration of For 'tis abfurd that a former Decree fliould difan-
the Will, when once fettl'd and declar'dj for a nul a latter; fince abfolute Povt'er cannot bind
Man upon once fignifying his Will and Pur- and reflrain itfelf; and fince that which is in its
M-. Barb. A^O iTjE
5"
o. V.
* This is the Opinion oi Jii^o^ Cumberland, whofe Words our Author tranfcribes. Another EngUJIjrfian, in a Work
which we hoped would have been turned into French, embraces the fame Notion. According to him, the Duty or Ob-
ligation ot a Man can be nothing elfe but a Reafon and Motive propounded after an agreeable Manner, and nece/Tarily
ueteVimnin^* hmi to
r\'\nrttf* nnH rwe^xpv nilf" M liiti^i. *-^f" '^^ifirr ko^ni-o .innt-Vi.il- . -ir^A U -1. n atCt^n nf \^^tt\ra ^111 h*. nn
Other than a great
'
by afting after an
looked into with , ., ,,... .., ..
in hisWoT). DelaRep. des Lettres, April 1700.
.,
^
Mr.^WL^. NOTES on %.v\.
It IS a Rule of the Ro>j Lawyers, Kemo
poteft mutare confdium fuiim in dter'ms injuriam,
i.e. lYo Man can change
his P-irpoJe to another's Prejudice. Digeft. Lib. 1. Tit.xvii. De diverfis Reg. Juris. Leg. Ix.\v.
We ihall
hereafter
treat of feyeral Cafes ia which 'tis lawful for a Man to change his Defigns and Intentions. See
<hiny i(&. in. Chap, yi^ vii.
own
Of
Law in general.
62
own
Nature
fubjea to change '
cannot be made
fix'd and
irrevocable . The
Jthenians in Thu-
cydidcs
=, laid up a thouPand
Talents in the Cita-
del, denouncing a
capital Penalty againft him
who fhould either
decree or perfuade the em-
ploying that IVIoney to any Uie, except in Cafe
the City were
attack'd by a hoftile Fleet
:
And
yet upon the Revolt of the Inhabitants o? Chios,
their Fears engag'd them to repeal that Decree ^
WhenPrinces
'^
add exprefly in fome of their Con-
ilitutions, that altho' they fhould hereafter order
any Thing to the contrary in a particular E-
dia, yet the
Magiftrates and Judges
fhall noto-
bey or regard any fuch
Command, this Addition
doth by no Means amount fo high, as to prove
they may not abrogate fuch Conllitutions, but ra-
ther lliews, that the latter Orders are not ferious,
or that they dropt from them unawares. And
fometimes by this fubtil Artifice they cut off and
prevent the
Importunities of fawcy
Petitioners,
whom perhaps it would not be fafe for them abfo-
lutcly to deny
''.
But there's need of diftinguifliing very nicely
between the pofitive Law itl'elf, and that Right
which it occafions to be obtain'd.
The Law itfelf
may be difannull'd by the Author, but the Right
acquired by Virtue of that Law,
whilft in Force,
mufl: ftill remain : For, together
with a Law, to
take away all its precedent Effects, would be a high
Piece of Injuftice: ForExample,
'Suppofeitwere
a Law in any State, that as a
'
Man difpos'd of
his Pojfeffions
by Will,
fo
the Bight to them fiouU
fland. It would be very fair, in this Cafe, for the
Sovereign to retrench this Liberty of Teftaraents,
and to order that for the future all thefe Inheri-
tances fhall pafs to the Heirs at Law. Yet it
would be unreafonable to take away from Perfons
what fell to them by Will, whilft the former Law
was in Life and Vigour. And by the fame Rule
we mayjudge of that Ationof Pope ^oKi/rtCf? VIII.
when, out of Hatred to Philip the Fair, King of
France, he recall'd all the Indulgences which his
Predcceffors had granted to the French Nation;
which Harry Stephens hath fo juftly ridicul'd in
his pleafant Apology for Herodotus
'.
We muft take Care likewife to diftinguifli the
other Afts of Sovereigns from their Laws, left any
fhould imagine that all their juft Donations, Alie-
nations, or Compadts,
may be retrafted by them-
BooK
I.
upon thefe felves, or
%
by their SuccefTors. For
Ads a Right' is obtain'd by other Men, which
ought not to be taken from them againft their
Confent. Hence it appears, that when a Man rc-
nounceth his Right, it is not ncceflary to add ex-
prefly, that neither he nor his Heirs will do here-
after any Thing contrary to that Renunciation}
and that if they do attempt any fuch Matter, it
fhall be efteem'd void. For, fince in Deeds of
this Nature a Man plainly declares his receding
from his Right to any Thing, and profeffeth to
tranflate it on another Perfon,it would be evident,
without that additional Claufe, that he cannot
(with any Force or Effeft) afterwards difpofe of
that Thing, having no longer any Right or Title
to it. And for the lame Reafon, becaufe
whilft
the Teftator lives,, no Man hath obtain'd a Right
by Virtue of his Teftament, he may fairly alter it,
even tho' he had ftrengtlten'd it withaClauIe, de-
claring all Wills that fhould hereafter be made to
be invalid. I"or this indeed carries Grounds e-
nough to make us prefume the latter Will did not
proceed from his ferious 'Intentions
;
yet if that
very Clauie be revok'd in that latter Will, the for-
mer will be of no Virtue or Efficacy. And fo in
Deeds and Inftraments of Conveyances and other
Contrafts, if aDifpute arife about any Point,
'
that/
which bears the latter Date fhall take Place of that
which was made firft.
VII. From what has been faid, we may like-
wife gather the Reafc n why a Man cannot be ob-
lig'd to himfelf, or why he cannot enter into any
Agreement or Promife purely diiedted to his own
Perfon, no other Party being concern'd with
him. For he who obtains a Right by any Obli-
gation, may fairly wave that Right, when by fb
doing he injures not a third Man. But now in this
Cafe the obliged and the obliging Party, or he
that owes the Right, and he that obtains it,
are
one and the fime. Therefore fhould a Man never
fo much refolve to oblige himfelf, yet the Obli-
gation would be in vain, fince he could excule
himfelf from Performance at his Pleafure: And he
that can difpenfe with himfelf in this Manner
is aftually free. Befides, fuch an Obligation
could be of no manner of Ufe ; becaufe when a
Man gives or denies any Thing to himfelf, he nei-
ther gets by the Performance, nor lofeth by the
Omiilion
f.
=
Vide Cicero, ad Attic. Lib. iii. Ep. xxiii.
^
Lib. ii. Ch. xxiv. Ed. Oxon.
p.
98.
' Ibid. Lib. viii. Ch. xv.
p. ^yG.
<
Vid. Cod. Lib. v. Tit. viii.
/;'
ex refcrifto
nuftis. petamur.
e
Cap. xl.
<"
Add. Senec. de Benef. Lib. v. Ch. vii, &c.
Mr. Barb. NOTES on .vx.
If Kinns were infallible, as they would in the Cafe before us always take proper Meafures, and command nothing but
what is foi-^the "reat Advant.ige of the State, we misiht believe that whatever Laws and Orders they make, ought never to
be altered; but^'fuice the contrary is evident by Expe~iience, it is as abfurd, as prejudicial to a Society, to affirm. That what
isoncerefolved and eftablilhed, in what Manner foever it is done, fhould always continue in Force, wliatever Inconveni-
ences may .irifc from it The antient Kings of Per/w, whofe Laws were looked upon as unalterable, found thcmfelves
often obli-ed to hinder their Effeft bv fome latter Edifts, (See y?/;. viii. 8, &c.) and the Princes who m all Times have
afted upon this Principle, altho" clofely, muft eafily obfcrve the bad Confequences of it, if they were careful to do their
Duty, unlefs they were intoxicated with a good Opinion of themfelves, and pufled up with a falfe Notion of Grandeur.
*
See Mr. Hfr//s's Difcourfe, entitled, De Le^c, ClaufuU, ut m abrogariunquam polfit.mumta, i.e.
Of a Lawjirengthen-
ed with a Claiifi,
that itfliall not be repealed, which is the firft of his third Tome of fmall Trafts and Comments.
s
So in the Civil Law, new Laws and new Conftitutions have no Force but for the future, they meddle not with what's
paft- as thefe Words import, Le^es o" Confiitutiones futaris certiim eft
dare formam
negottis
,
non ad fatla pnttrita revoca-
ri. Cod. Lib. i. Tit.xiv. De Legib.cj;' Conftitut. PrincipHm, Leg. yi'i. See
Mr.DAUMAT's Civil Laws according to the Or-
der of Nature. Tu. i./. i, . 13, ere. of the Preliminaries.
, ,- ^ . T
,
-
'
It is a Law of the xii. Tables, Ut cjuifque legnfet fus ret, itajusefto,
i.e. As every Ma bequeaths his Goods, let Right be.
itut Lib. ii, Tit.xxii. De LegeFaUid. inthe Besiniiing. See alfo Di^f/?. Lib.l. Tit.xs'i. fieverber.Significat.Les. cxx.
Inft
'
See Lib. viii. Cb. x. following.
See Lib, v. Cha}.)S.\U .6.
%
But
Chap.
VI. Of
Law in general
6^
But
whereas it is fometimes faid, that a Man is cede from it. And that fuch
is
the Nature of Mani
obliged
to
preferve himfelf
' ,
the Meaning^ of every one's Obfervation may
inform
him
this IS no more,
ligation,
inherent in every Man,
but that the Exercife of that Ob
is terminated
iiTa Man's own Perfon , but it hath likewife a re-
ference to God, the Author of natural Law, as to
him who hath a Right of requiring the Perfor-
mance of that Obligation, and of punilliing its
Neglect : And therefore a Man is fo far bound
to confult his own Prefervation, as he is a Servant
of God, and a part of human Society, to which
by the Divine Command he ought to fliew him-
felf a ufeful Member. In the fame manner as a
Mailer may rightly puniOi his Servant, and a So-
vereign his Subjeft, who hath render'd himfelf
unfit to difcharge his proper Labours and Em-
ployments. Neither is this Maxim, that a Perfon
cannot oblige himfelf^
confin'd to lingle Men, but
extends to whole Bodies and Societies
'.
As for
that which fome Authors urge about a Man's
fwearing to himfelf. That he will, forlnftance,
refrain from this or that Enormity to which his
evil Appetites incline him, this Obligation bears
IX. Obligations are laid on
human
Minds
pro-
perly by a Superior^ that is, by fuch
an
One as not
only hath fufficient Strength to
denounce
fome
Evil againfl: us upon Non-compliance,
but
hath
likewife juft Reafon to require the
retrenching
of
our Free-wills by his own Pleafure.
For
when
any one is endued with thefe
Qiialifications,
fo
foon as he ihall command any thing,
and fhall
firther fignify the good and evil
Confcquent
on
Obedience and Dilobedience,
there
mull
needs
arife in the rational Faculty,
a Fear mix'd
with
Reverence, the former proceeding
from his Power
the latter from the Conlideration
of fuch
other
Reafons, as without that Motive
of Fear,
and
barely by way of Counfel, ought to prevail on
us to embrace the Command.
Hence
we con-
ceive, that the Right of impofing
Obligations
on
another, or, which comes to the lame Thine,
the
g^
Right of commanding another, and of prefcribing
Laws, doth not arife barely from Strength, or from
the fuperior Excellency of Nature
'
. Strength
the Nature of a Foiv^ the exafting of which ap- indeed, may of it felf fo far bend me contrary to
pertains to Almighty Go d\ my Inclinations, as to make me choofe rather for
VIII. Another Reafon why, fince the Will of a while, to obey another's Will, than to venture
Man is capable of conforming to a Rule, fuch a
Rule may be prefcrib'd to it, and an Obligation
laid on it thus to conform, is, becanfe he Hands
under the Command of a fuperior Power. Thefe
two Conditions put together, render Men liable
to Obligations
,
proceeding from eternal Princi-
ples. For when the Powers of any Agent are fo
the Experience of his Force
: But this Inducement
ceafech, when once the Fear is over, and I fhall
then have no Reafon why I fhould not aft rather
according to my own Pleafure,
than
according to
his. And where a Man can bring no other Argu-
ment for my Compliance to his Orders,
but Fo'rce
and Violence, nothing hinders,
but that if Ijud^e
tied up by Nature to an uniform way of afting, it expedient for my Affairs, I may tiy
all Means to
as that it cannot by its inward Motion ileer a dif-
ferent Courfe, the A6tion thus produc'd is rather
fhyfical than moral., and arifeth rather from Ne-
cefilty than from Obligation. And, on the other
hand, where a Perfon acknowledgeth no Superior,
there can be no effential Principle apt to reilrain
his inward Liberty. And, altho' fuch an one
ihould never fo exactly obferve a certain Method
of proceeding, and conftantly refrain from fome
kinds of Aftions, yet this would not be taken for
the Effeft of any Obligation, but of his own free
Pleafure. It follows then, that he alone is capa-
ble of Obligation, who
'
can have Knowledge
of a Rule prefcrib'd him, and hath a Will intrin-
fically free, able to fteer contrary ways
>
which
Willrnuft, however, when a Rule is enjoin'd it
repel the Violence, and to affert
and vindicate my
own Liberty
=
.
X. It may not be improper
here, to examine
that Affertion of Mr. Hobbes.,
which he hath laid
his Book
,
De Give '',
and which runs
m down
thus, in the
Engliflo Improvement of his Leviathan.
"
. The Right
of
Nature^ whereby
GODreigneth
over Men., and
punifieth thofe who break his Laws., is
to be derived.,
not
from his Creating them., as
if
he re-
quired
Obedience as
of
Gratitude
for his
Benefits, but
fro'M his irrefiflible Power. The
Argument with
which he defends this Notion is carried on to this
Purpofe
:
"
All Right over others being either by
"
Nature, or by Compait, that Right may be faid
"
to be granted by Nature,
which Nature doth
''
not idkQtm^y." Nowfeeing all Men., by Nature.,
by a Superior, be fenfible that it ought not to re- had a Right to all Things., they had a Right every one
*
Com. Fdden .id Grot. Lib. ii. Ch. xiii. . i.
>>
Ch.xv.
. 5. P. 187.
Mr. Barb. NOTES, on . vir, viii, and ix.
'
That is to fay, Tl1.1t Man is the Objeft of the Duties that refpeft himfelf, but not the Foundation of them
and
il
he is obliged to pteferve himfelf (foi- Example) or improve himfelf, he is not the Caufe of it himfelf altogether, as
if he could lay an Obligation upon himfelf, but becaufe God will have him do fo. See Lik ii. Chat), iv. . ?6.
This is, becaufe thefe Bodies are looked upon as a fingle moral Perfon. See v.'hat is faid above, Chat>.i..
13.
'
Theie Words ought to be added, acknowledging a Superior, can and the Author himfelf has not omitted them in iiis
Abridgment of the Duties
of
a Man and Citizen, Lib. i. Ch. ii.
j. 4. where the reft of this Sentence is found Word for Word.
I All the Power of obliging an intelligent Creature, as Man, is founded upon the Ability and Will which he hath to
make himfelf happy, or lefs miferable, thSn he would be, if he difobeyed. IfMan were fuch a Creature, that he mufl
necellanly
be unhappy, or that it were impodible that his Mifery could be increafed or diminidied, God might force
mm
indeed to at after fuch or fuch a Manner, but he could not properly oblige him to it {Gaflrellinhis Extras
of the
^'f
^.f:
"f
^^(ters.) It were alfo in vain for an intelligent Being to pretend to fubjeft another's Aftions to a certain
Kule it It be not in his Power to reward his Obedience, and punilhhis Difobedience, and that by fome Good or Evil,
Which is not the natur.tl Effeft or Produce of the Aftion itfelf, for that which is naturally profitable, or unprofitable,
works ot
ufelf
without the Help of any Law. Mr. Lock's Phdof.
EJfay,
f.
418.
jj^^"^*''^'"- '^Jelph. M.ib coailus qui fnum officium facit, crc He that doth his Duty out of Fear of Punidimcnt, will
lure to take
care whilft he is under Apprehenfion of bein? difcover'd : but upon the Hopes of Privacy and Security,
he
never fails
to give a Loofe to his old Inclinations,
'
.of
(J4
Of
Law in general.
Book
I.
p/"
them to reiga ever all the rejl. But becaufe this
Right could net be obtain'd by Force, it concern' d the
Safety of
every one, laying afide
that Right, to
fet
uf
Men nuith [overeign Authority , by common Con-
fent to rule and defend them : Whereas
if
there had
been any Man
of
Power irrefiflible,
there had been
no Reafon -why he fwuld not by that Power have
ruVd and defended both himfclf
and them, according
to his own Difcretion. To thofe therefore, ivhofe
Power is irreftftible , the Dominion
of
all Men ad-
hereth naturally by their Excellence
of
Power
j
and
confequently it is from
that Power , that the King-
dom over Men, and the Right
of affliSling them at
his Pleafure , belongs naturally to Almighty GOD,
not as Creator and Gracious, but as Omnipotent.
Now in this Difcourfe there are feveral Things
that deferve to be cenfur'd. For, in the firfl: Place,
it may be queltion'd, whether or no thofe two
Exprefllons, JRight
of
Sovereignity (upon account
of Strength) is granted by Nature , and, A Right
of,
&c. !S not taken by Nature, hang very well to-
gether. Becaufe in moft Cafes, my not taking
away a thing is by no means an Argument, that I
therefore grant it. And fince, not to be taken away,
and to be granted, are different Things
;
fuch a
Right may icem to be granted by fome other Prin-
ciple than Nature, tho' Nature doth not take it
away. Befides, that Maxim, All Men by Nature
had a Right to all Things
,
ought to be interpret-
ed with great Caution. By Right , he means the
Liberty which every Man hath of ufmg his natu-
tural Faculties according to Reafon. Therefore
his Principle, in a found Senfe, will amount to no
more than this> By Nature, that is, upon the Re-
moval of all Law , every Man may fairly ufe his
natural Strength againfh thofe whom his Reafon
inftrufts him thus to deal with, for the lake of his
own Prefervation. But it doth not hence follow,
that barely by natural Strength an Obligation,
properly fo call'd, may be laid on another : For to
co7npel and to oblige, arc very different Matters
j
and
tho' natural Strength be fufficient for the former,
yet the latter cannot be perform'd by that Superi-
ority alone. For, even according to Mr. Hobbcs's
own Notion, as one Man hath a Right oi compel-
ling others, fo thofe others have a Right of refijl-
ing him. But now Obligation cannot ftand with
a Right of refilling
;
becaufe it prefuppoth fuch
Rcafons as inwardly affefting Mens Coni'ciences,
make them conclude, by the Judgment of their
own Mind, that they cannot honcftly,
and there-
fore rightly refill. And though it be irrational, to
contend violently againfl: a fuperior Strength , and
by that means to draw upon ourfelvcs
^
greater
Mifchieftj yet there remains in us a Right of try-
ing all Ways, either to drive off the Force, by the
dexterous Application of other Force, or to elude
it by Subterfuge and Efcape : But neither can this
Right confiil with that Obligation which is pre-
cifely fo term'd, and which Grotius commonly op-
pofeth to Extrinftcal
'.
So that , on the whole
Matter, by bare Force, not the Right of Refifl-
ance, but only the Exercife of it, is extinguifh'd.
We may explain the Point by the Cafe of Brutes,
with which we Men live in a lawlefs State : Now
thofe ofthem which wecan mafter by our Strength,
we lay hold on , and employ in our Service
} but
if any of them efcape our Power, we are not
apt
to complain of any Injury receiv'd from
them.
Nor can it be here replied, that Brutes are not
ca-
pable of Obligation ; and that therefore they
can-
not be riid and engag'd any other Way, than
by
Strength : For Mr. Plobbes himfclf acknowledgeth,
,
That a Captive in War , although
capable of
Obligation, yet is under none, whililheis reflrain'd
only by natural Bonds, and before the Interpofi-
tion of any Faith, or Compact; and that there-
fore, fuch an one may give his Conqueror
the
flip, or may affault him violently
;
fo foon as he
finds Opportunity. Seneca de Ira. Lib. ii. Ch. xi.
Nature hath
fo
ordefd Things, that be
whofe Great-
nefs depends on the Fear
of
others, is not without
Fear himfelf. Were we difpos'd to be tedious,
we
might farther fhew, that this Maxim of Mr. Hobbes
is meer Abfurdity and Nonfenfe, if applied to
God Almighty. For how can Nature be faid to
h^vt granted any thing to God : Since Nature is
cither God himfelf, or, at lead, the Work of
God ? For thefe Reafons therefore, and becaufe
it feems unworthy of the Divine Goodnefs,
we
conclude, that the Right of Commanding,
or the
Sovereignty of God, as it denotes the Virtue of
imprinting Obligations on IMens Minds, is not to
be deriv'd from the bare Confideration of his Om-
nipotence.
Neither do thofe Arguments, brought by
"Mr. Hobbes from Scripture, prove the Truth of his
Pofition. When God fecms to have Recourfeto
his Abfolute Power, about the Calamities fent on
Job, we cannot hence infer, that he hath no Right
over his Creatures, but what arifcth from that
Power only.
Job
himfelf, at the beginning of his
Sufferings, made a true Declaration, by what
Right God had deprived him of his Goods, and
of his Children : The Lord gave (fays he) and the
Lord bath taken away : That is, why may not he re-
call at his Pleafure, thofe Things which he gave upon
the fame free Account ? But when his Grief had fo
far prevail'd on his P^eafon, as to make him enter
into Expoftulation with Heaven, then God, to re-
prefs the Infolence of the Complaint , alledg'd
his
Power, fince the Sufferer had now neglcfted to
confider the other Rcafons ofthe Divine Sovereign-
ty and Command. And thus we commonly
deal
with obltinate and retiaftory Subjects
> when they
rcfufe to hear ourReafons^we iliew t hem ourStrength,
to make them underftand not only their Sin , but
their Folly too in oppofing our Dominion. In the
fame Manner, if a Perfon complains of the Mif-
fortunes of good Men, and the Profpcrity of the
\\de.r)eClve, Ch.'u
.j.
^
De Give, Ch. viii.
J.
2.
'
Add. Senec. ad Polyb. Ch. xxix.
Mr.^AKH. NOTE Son^.x.
But this external Obli<i.-ltion impofes alfo, accoi-ding to Grotius, a NeceUity of not rcfifting. All the Difference is
this, Th.it the internal Obligation has refpecl: to Right, properly fo call'J, by \'irtiie of which \\ c ad according to
Reafon, and agreeable to the Light of Confcicnce, whereas an external Right, which produces an external Obliga-
tion, i.nports no more than Impunty to him that ufes this Right, and hinders not but that he may do Evil in the CJfe
of it, altho' in this laft Cafe he can't refift lawfully. Grotius, among other Inftances, gives an Example of the ill
Treatment which a Prifoner of War receives from a Conqueror, and a Subjcft from his I'rince. See De Jur. Bell, c/
Pacts Prolegom,
J.
41. and Lih. i. Ch.'iy,
J. 3.
and L;^. iii. C^. vii. . 6,7.
wicked
Chap.
VI.
Of
Law in general.
(5^
Wicked,
when he perfifts deaf to the genuine /tons
of
Cowards-,
(derivedfr^m G D
h'rmfelf^ and
Caufes
of that
Proceeding, in the lall: Place, we^ reaching even to brute
Creatures;
for even
among
fi
confound
him with Divine Omnipotence: As if thefe. Nature gives larger
Privileges
and Portions to
\ye
fhould fay, 7m that
fanfy
your
felf
injur'd, go the Strongtbanto the t-Veak. Livy
hath
exprcfs'd the
and try
your Strength againft GOD
for
Satisfaclion. Notion more concifely, Omnia
fortium
ejje
that the
Nor is it a better Inference cif JVlr. Hobbes^ when IVorld was made
for the Bold and the
Strong.
Calli-
he fays, that the Obligation of paying Obedience cks (in Plato'sGorgias) purfuesthe fame
Argument:
to God is incumbent on Men, upon Account In the firft place, he lays down this
Suppofition
of their
Weaknefs. For this only could rriake it a That Nature and Law are many times contrary
to
piece of Folly in us, not to redeem our felves by each other: He inftanceth in the Cafe of Injury;
obeying,
from fome greater Evil: But it doth not to receive which is by Nature the moft bale
and
at ail take away our Right of defiving, and of en- vile,
'
as the Treatment
of
a Slave, not
of
a
free Sub-
deavouring, by all Means, to efcape the fuperior jecl; yet to do an Injury is much worfe in the Con-
Strength which thus opprefieth us. But fuch a ftrution of the Law. He obferves it to havebeen
Right is utterly excluded by every true Obligation, the Policy of Law-givers to encourage this latter
Nor is this Confequence good,
Of
two Omnipo- Notion, fo to order the ufeful Engines of Praife
tents, neither can oblige the other^ therefore Men are and Difpraife, as to hinder others from growing too
obli^d to GOD, only becaufe they are not Omnipotent
;
powerful for them
;
well knowing, that they were
were the Antecedent never fo unqueftion'd. Not otherwife
*
an unequal Match for the Multitude.
to fay, that the Fanfy of two Omnipotent Beings
'
Noiv Nature
herfelf {(ays. he) as I imagine,
Jhews
is
+ an impoffible Suppofition. Neither did our it to bejufi and right, that the Good and the Strong
Saviour intend to aflert his Right againft Saul hy foouldhave, in every thing, a larger Share than the
that Argument, It is hard
for
thee to kick againft the Bad and the Weak. And therefore, whereas Xerxes
Pricks ; but rather to reprove the Boldnefs and Va- and Darius had both made ufe of this Pretence,
the
nity of .y^^a/'s Defign. Nor was that mighty Con- former againft the Grm^wi-, the latter againft the
vert afterwards in\ii&dhy JnaniasintoihtChriftian Scythians
; he fays they did all this accordiitg to the
Faith, barely by being inform'd how much above Law
of
Nature. He complains that the rigid Doc-
his Strength it was, to deftroy thatProfeffion. We trine of
Jufiice damps and opprefieth the generous
have applied fo much the more Diligence to the Spirits of young Men
;
or that, on the contrary,
confuting of this Opinion, the more Danger we when any one breaks thro' thofe formal Reftraints,
apprehend of its being abus'd by violent and head- he feems to fhake off hisRuft, and toJhine in all the
ftrong Men. In "fhucydides
'
the Athenian Am- Splendor
of natural Right. On this Principle, he (ays,
baflador fpeaks to this purpofe. Wefollow the com- Hercules drove o^Geryon's Oxen^ who neither fold
mon Nature and Genius
of
Mankind, which appoints nor gave them him
;
the Hero having a naturalRight
ihofe to beMafiers who are fuperior in Strength, 'this to the Oxen, and all the other Goods andP
ojfeffions
of
Law is not
of
our making, nor are we the
firfi
who inferior puny Mortals. And this is indeed the Maxim
have ufed
it ; but we received it as it came down to which the great Bullies of Mankind would have
m, and we
fiall
leave it to guide the Pra^ice
of
all Po- prevail in the World: Hoc Itbacus velit, i3 magno
ferity.
Dionyf Halicarn.Lib.i. It is a Law
of Na- mercentur Atridae. P/a?<3r(r//'s Opinion is much more
ture common to all Men, andwhich noTimefjail difan- moderate, and might be admitted with lefs Excep-
nul or defiroy,
that thofe who have more Strength and tion,
'
// is the
firft
and principal Law
of Nature
Excellence fliall bear Rule over thofe that have
lefs.
(fays he) that he whofe Circumftances require Pro-
'
Brennus (ix\Plutarch\ Camillus) calls it a
moft
an- teclion and Deliverance,fJjould ad/nit him
for hisRu-
tient Law, that which gives to the Valiant the
PofJ'ef-
ler who is able to refcue and defend him.
Mr. Bakb. NO rES.
'*
See how Mr. lod-c proves this, in one of his Letters written inTrench, becaufe it was to be (hewed to a Perfon of Qua-
lity, who did not underftand Latin. Two Omnipotent Beings are altogether inconfiftent, becaufe we muft neceirarily
fuppole, that the one muft always will what the other does ; and in this Cafe, he, whofe Will is neceffarily determined
by the other, confequently has not that Perfeftion
; for 'tis better to be free, than to be fubjeft to the Determination
of another's Will. But if they are not both reduced to the NecefTity of willing the fame Thing always, then the one
may defire to have that done which the other would not ; in which Cafe the Will of the one muft prevail over the
Will of the other, and fo he, of the Two, whofe Power can't bring about what he would, can't be Omnipotent, be-
caufe he can't do fo much as the other. So that there can't be two Omnipotent !6eings, and confequently not two
Gods,
f.
413. See alfo Mi-. Clerc's Ontology, SeB.ni. Ch.x.
. 3.
^ ^Ylyisy/i^ci
'Y^
TO, t Osiov oclvj, to civ^faTiiov ts frcc<pa)^ aixTrictTc^ '\S!3'o ^utnu^ xvxyjuc'xi;^ tai av x-peCTij itp^'lv, j^ ilfJi/U<; isTt Siv~
T15 T vofxiov, uTi x.ii/,(va> Tr^Zrot
Xfinrx/OiLoi, ivr a'i 7rccfoc>ietSoiii, }^ iroj/iivot i? cifi xnTaXil^ona, x^ujjuifa avT^. Thucyd,
Lib. V. Ch. cv. See alfo Dionyf. Halicarn. Lib. i. Ch. v.
*
Bnnnus's Words, fn Plutarch's Camillus, are thefe, 06^111 s/^e i)/*s~? yt ^ifov sri^s u^ikov toiki/ts?, a.)c tu TrfiirSv-
TTW T VOf/jOiV OCXtXuSi^VTS^y 'c^ Tai XfStTlOVi TOr TUV y.Tiov&IV ^l^atTLV, o:P^&Jfj3^^
^078 tS , lC TS^^TC^V u\ Te6 S-rifix. J^
ff* TilTOtg
C//. ^yVca'? tViftv. TO QlTitV 7:>\i0V i^iv TOL KpUTTOV T UTToaSi^ipcdV.
' Plato's Words arc, 'Ov^i ^^ iv^jc? tSto y'
fi to 7!u6iifhci, to k^Mii^, a..' x.vh7:ohs tiki;, ^c.
*
It appears plainly by this Place, as it is printed in all the Editions of the Original, that this Writer did not confult
the Greek Autliors, which he quotes, nor, thro' Inadvertence, did he fometimes throughly underftand the Latin Tranfl.ition.
CalUcIes in Plato fays, oi Tihuiaa Tin; sofjiixf, oi a&imi xvffuTroi ii<rl >^ ol ^oXt\ci^. Words both Very clear and coherent with the
former Difcourfe ; bu' Marfilius Ficinus having tranftated them in an ambiguous Manner, unlefs one confiders them
throughly, thus, fflui leges condtint, imbeciUioresfuntacmultitiidoiff/zefi; M.i\ Pufendorfthought th^t he had faid. Law-givers
are weaker than the People, as if the (7?; had been, Imhecillioris multitudineipfa, or in \\\c Creek, icAftUifoi r jro^ai', where-
as theSenfe of Catlicles is. That the Laws were firft eftablifhed by the People, who thought themfelves not ftrong enough
to dtfend themfelves againft the Infults of others, and chiefly by thofe People, which fuppofed the Great
ones to opprefs
them, and fo I have render'J it, tho' the ^/i/Z) Tranflator did not mind it.
' H J^i '/
(
af/,cii
)
^uVi5 ii/Tn iin<pami uv, on ^Uaioii tfi T ufiium tS p^ii^ot^ s-Ai'on f^i; J^ T ^uvxlaiTifo' tu aaiwuTuTign,
Ibid.
">
"O yi
v^Zt@- (ii; soiKsv)
iCi KVfiUTXT^ WjW.-, tS. ituI^kS^ S'afAsvf, T (Fulfil ^uvoi/3fi6f, fj;eTi
KT ^!/'(r( ivof'iiiiFl,
Plutarch in
Pclof.
p. 290.
K
XI. Others
Of
Law in general.
66
XI.
Others
there are who
derive the Origin of
Sovereignty,
or of the Power
of impofing Obli-
gations
on'another,
from
Eminency or fuperior
Excellency of Nature,
which
they pretend is of
itlelf Efficient for that
great Purpofe. They draw
a main Argument from the Nature of Man, in
whofe Mind, as in the moll
excellent Part, is feat-
ed the to iyifjioviyfsv,
the
DireSthePotver. To il-
luftrate which, they
alledge the Authority o^ Cice-
ro ', when he commends the Latin Phrafe exire de
fotefiate,
as applied to thofe, who are carried away
from rational Afting, by the Fury of their Paffions
and Lufts ; fuch Men being truly gone out
of
the
Power or Command o then-
Minds.
JriftotleWkc-
wife is brought in to ftrengthen their Party, be-
caufe he hath fomewhere
declared, that if a Man
can be found excelling in all Virtues, fuch an one
hath a fair Title to be King.
Thus the moll fu-
perlative Pre-eminence of God,
would, they fay,
deferve Veneration , though he had never created
the World. Farther, to this Pre-eminence of Na-
ture they add Non-accountabknefs ; and affirm.
That for this Reafon only, if a Man ufeth brute
Creatures (v/hom he fo far excels) any otherwife
than with Decency and Moderation, he may do it
fiurly and fecurely,and they have no Right to com-
plain of their hard Treatments : Becaule when one
contends with another about
Matters of Right, he
doth, as it were, compare himfclf with him, and
is willing that both Ihould be judg'd by the fame
Law
i
but this cannot be admitted in two Natures
fo vaftly different, that one may be faid to have
been made for the fake of the other. And there-
fore they pretend, that God
declared Mens Right
over Brutes, purely on Account of their fuperior
Nature. Whence, they tell us, if a Man, for a-
bufing his Cattle happen to be punilh'd by the
Magillrate,this is not done in Favour of theBealls,
but for the fake of the other Subjefts, whofe In-
terellit frequently is, that every one Ihould ufe
well what he pollefleth. On the fame Score, they
fay, the Body ought not to complain, though it
fhould, by the Command of the Soul, be walled
and worn out in Labours j
fince it is in fo high a
Degree furpafs'd by that Nobler Part.
Bur, to deliver our own Judgment, we cannot
yet be perfuaded, that fi-om a bare Tranfcendency
of Nature, can fpring a Right of impofing Obli-
gation on others, who have in themfelves a Power
of being their own Governors and Directors. For
neither doth a fuperior Nature always imply a
Fitnefs to Rule an Inferior
;
nor do the different
Degrees of Perfeftion, in natural Subllanccs, im-
mediately denote a Subordination, and a Depen-
dence of one upon the other. But rather, fince
the Perfon who is to receive the Obligation, hath
in himfelf a Principle of guiding his own Aftions,
Book
I.
which he may judge fufficient for his turn
j there
appears no Reafon why he Ihould Hand prefent-
ly convicted in his own Confcience, if he afts ra-
ther by his own Pleafure, than at the Will of an-
other, who in Nature excels him. And therefore
tho' that Notion oi the Epicureans was moll fenfe-
lels and impious, in which they defcrib'd the
Gods,
as enjoying their own Happinels with the highell
Peace and Tranquillity, far remov'd from
the
troublefome Care of human Bufineis; and neither
fmiling at the good ,
nor frowning at the wicked
Deeds of Men; yet they rightly enough inferr'd,
that upon this Suppofition, all Religion, and all
Fear of Divine Powers, was vain and ufelels.
For
who will worlhip another, that is neither willing
to affiil, nor able to injure him
' .'*
The Contem-
plation of fo noble a Being as this, may indeed
excite Wonder in us, but it can never produce Ob-
ligation. Befides, we Cbrijiians eonfefs, that
there are created Spirits endued with a Nature far
furpaffing our own ; and yet we acknowledge no
Sovereignty that they bear over us, immediately
on their own Account. Apocalypf. xxii.
p. Mar.
Antonin. Lib. vi. Ch. xliv.
If
the Gods do not at all
regard or order human Affairs {ivhicb yet it is the
highefi Impiety to imagine) to what Purpofe are our
Sacrifices^ our Supplications^ and our Oaths^ and our
other A6ts
of
IVorfhip
^
by which wc
fuppofe the Di-
vine Powers to be ever prefent andconverfant amongfi
us ? Cicero de Natur. Deor. Lib. i. Ch. ii. "fhere
have been Men in the World., who thought the Gods
not in the leaf
concern"d about human
Affairs. IVere
this Opinion admitted
for
true, there could be no
fuch
Thing as Piety, Holinefs, or Religion
amongfi Men :
For to pay thcfe Regards to the Divine Nature, is
mofi agreeable to Goodnefs, and to Purity, provided they
take Notice
of
our Attions, and are the Authors
of any
Benefits and Advantages in our Lives. But
if
the
Gods are neither able nor willing to help us, nor at all
bcftow their Care andObfervation on our Proceedings^
andfo derive no BhJJings, no Favours upon Mankind, to
what Endis ourWorflnp, ourHonours, andourPrayers,
theTribute which we nowpay to the LtimortalBeings?
As no Virtue can
fubfifi
in Hypocrify and Shew,fo efpe-
cially Piety wouldbefoon loft
in that
Difguife ;
and then
farewelto allHolinefs, and all Religion ; which being
once
banift}'
dthe World,what couldfollow but theMi-
fcry of
utter Diforder,
of univerfal Confufion? And
again, fVhat Piety canyou owe to him
from whom you
have received no Benefit ? Or how can he claim any
Thing as his Due, who hath 710 Merit topleadin his Be-
half? Idemde Nat. Deor. Lib. ii. The common
Title which our Anccflors gave Jupiter was, Opti-
mus Maximus, moll eminent in Goodnefs and in Great-
nefs.
In which we find Goodnefs or Beneficence
preferr'd to Greatnefs; it being a more noble, and
more excellent, as well as the moll
acceptable
Mr. Barc. NOTES on .xi.
Thefe Words, ut quiccjuam agant, i. e. that they m.iy do any thing, which are omitted in all the Editions of this
ator
nth
Thefe Words, ut qiticrjuam agant, t. e. tnat tiiey m.iy ao any tning, wiiicii arc omittea in an uie taitions or ti
Work
either bv
the Neglect of the Author, or carelefsnefs of the Printers, quite fpoil the Senfe. Tiie EngliJIi Tranfl.it
has not taken the Pains to confult the Original, where thefe Words are exprell'ed diftinftly, Ch. v. .^z. He iir
aifo
carelefly
copied out a Fault in the ImpreiTion, in thefe Words, attt cum ./iuthoritatejudicare, for indicare, i. e. to \i\d'^.,
for
to fhew
his Authority, which makes the Senfe difagreeable.
Thefe
Words, Which wife Legiflators and good Citiz.ens have propounded with a Dejire of,
ought to be added to render
the
Senfe of Bilhop
Cumberland more clear, tho' they be not m the Original.
Mr
Locke proves in a moft folid Manner,
"
That it is not the moft pofitive Good, but Uneafinefs (as be calls it)
"
that
ufually
determines the Will. That is to fay, that Good, nay the greatcft Good, tho' we judge it fuch, does not
"
determine
the Will, at leaft, to defire it with an Earneftnefs proportionable to its Excellence; yet this Delire makes
"
us uneafy,
becaufe we are deprived of it. As for Example, perfuade a Man, as long as you pleafe. That Wealth
"
is more
a'dvanta"eous
than Poverty; make him to fee and confefs, that fuitable Conveniencies of Life are to be
"
ineterred
betore^a
fordid Indigency, if yet he be contented with this latter Eftate, and finds no Inconvcniency in
"
It he'll perfift in it contrary tc^ your Advice, his Will is not inclined to any Aiflion whereby he will renounce it.
Ejjay of
hum. Underfland.
Lib. ii. Ch. xxi. . 35.
See the following Part of the Chapter.
3 qucnce
C H A p. VI. Of
Law in general.
71
quence
from
any Aftion, is indeed a Token of the no doubt, but that the
Ation is really and di-
fuperlative
Bounty of our Creator, who is fo wil- redly cnjoin'd. To which
we may add, chat rh?
ling
to confer that Good on us, and fo kindly Minds of Men ai-e mov'd
more
forcibly by the
invites
and perfuades us to embrace it. Yet this Infliftion of Evil, than by the
PolTeflion
of Good,
muft
not prefently be thought a neceflaiy Argu- It muif be confefs'd, that the Acquifition
of
Good
ment,
that he at the fime time commands us, by hath very powerful Charms
> eipecially
when it is
performing the Ation, to acquire iuch a Good, frefh, and join'd with the Deliverance from
fome
He
might perhaps judge it fufficient to have of- prefent Evil. But the Senfe of this
Pkal'ant-
fer'd us fo fair an Occalion of receiving his Mu- nefs wears off in a long couiie of Poflcilion
> and
nificence.
Butif fome Evil be farther pronounc'd when once that Motion of Mind ceaieth, which
againlt us upon Omlflion, then there can remain either the Abfence of the Good, or the frefh En-
The famous Mr. Brty/c maintains the contrary Opinion in his Treatife upon a Comet, faying. That a Man has
more Love
for Joy,
than Hatred to Sorrow ; which Paradox he pretends to prove thus
;
No Man (fays he) fcruples to put himfetfinto an uneafy
andforroivful
Condition, provided it carries a Shew
of
Mirth and Pleafure This appears
from the Examples
offo
many young
Maids
who being tranfported with the Expeilations
of
fomeprefent Pleajure,
fuff'er
themfelves toLe led into
fuch Ailions, as they
are JenliLle
will produce a long Train
of Miferies : As alfo by the Example
of
great Numbers
of Men, vjho havefound a thoufand times, that the
eating of
certain Meats, and their drinking too much, has caiifcd terrible Pains in them, who will not yet reflrain their Appetites
from
them, when they have occajion. But 'tis my Opinion, that thefe young Maids and Drunkards do not ufually think of the bad
Tendency of their Aftions, fo far are they from determining, after they have exadly compar'd the prefent Pleafure v\'ith the
Mifery that will follow. 'Tis not then a Time of Refleftion
;
we might do it when we areferious, and theObjcftand
Occa-
iion being at a Diftance, our favourite Paffion is filent
;
but when the Heart is briskly attacked in a fenfible place, all thefe
good Reffeftions vanifh, we dream of nothing but the greatell Satisfaftion, and never trouble ourlelves with what may hap-
pen. The prefent Pleafure, unlefs it be very fmall, and next to nothing,
fills the narrow Capacity
of our Soul, and
fo engrojfes the
-whole Mind, that it troubles not itfelf to think at all
of
Things a'fent {us Mt. Locke fpeaks, Hpiy
of Hum. Underft.
p. 326.) The
Orator i;/c^we^ fpeaking of thofe who engage themfelves in fome great Wickednefs, fays. That they neither
confider of
the
Dif^raceor Punipment, which they bring on themfelves, but are wholly employed with the Thoughts
of that Pleafure theyjhall ob-
taiii,
if
they compafs their
Defign
; Oj y^ thj i,i<^uv!'M, is^' x
TnUmTu-i Kii^SivUi Xoy'ZpMi' a*.' i<p' 015 Kalopeiicit.t,i; iu<pficife>iir'.tTxi,
T87-015 xsn^A^/rai. Orat. tn Timarch.
p. jgj.
Ed.Gen. Butif, notwithftanding the Earneftnefs of theDefire which the Prefence
of the Objeft excites, there are ("ome Intervals which invite them to confiderthe Confequence of the Adion, they always
have a great Inclination to flatter themfelves. They think, that tho' the Confeque7ice is important, tseverthelefs 'tis not
Jo
c.rta,,:,
hut that it may happen othcrwifc, or at leaft
that it may be avoided byfome means or other -, as by Induftry, Courtjhip, chang;
of
Be-
haviour, 6cc. (Ml-. Locke oi Hum. Cnderfi. p. 52.8.)
rurthermore, the prevailing Power of prefent Pleafure, by which they
are hurried, is, properly fpeaking, a real Sorrow, for in the Fit of a violent Pallion, the earnefl Defire, which is inflamed
by the Nearnefs and Allurements of the Objeft, cauf-^s fuch an Uneafinefs, as affedlsus in the fame Manner, as vviiat we or-
<iiuarily c.ill Grief, and the llneafinels prefent bein- grsater, determines the Will, as Mr. Zor'- has very well prov'd, altho'
the future Sorrows, to which Men expofe themfelvci by fufFering themfelves to be carried aw.iy by the prevailino Power of
prefent Pleafure, miybefeenat a Diftance, and as a greater Evil in itsown Nature than \vhat they feel themfelves adiially
prefl'ed with, the Delulion caufedby a Imall Difference of Time, inclines \r.e Mi '^d to choofeihc worff part.
Moft of
our Ple.i-
Jures {f.xys Montagne, .-[ccovdins, to the Opinion of the Heathcn\7iren5eri, viz.. Sern-ca, F.p. li,
\.:.) tickle and emWace us, to
firangleus, as the Ihie^es which the Eyypdins i. '' Phileta.% did; -a,:Uft,':e Head-achjcize us before .Orunkennefs, we abjiamjrom
ovcrm ich drinking, but the Pleafure going before dtcci . es us, ^and jo cii.ceats :he Confequence
from us. See the fame Thought in two
Coiuick Poets quoted by Atkemts in his Deip/iojophijis, Lib. i. 8c xV. whofe Words G.itai;er recites in his Preface to Marcus An-
toninus.
If
at thefame Uome'it (faysMr. '.oc.e)thataMantaiies theGlafs into his H.ind, the Pleafure that he,.ndsin dnn .nr
ivere accompanied with that Pain m the head, and Slualtns
of
Stomach which never fail tofeiz-ejome Men fomefew Hours aUer they
have drunk to Excefs, Idonotbciievethat any Manwo^ld, upoji thefe Conditions, put the Cup to his Lips, whatever Pleafure he
raight have by drinking. So that in the Evaniples alledged by Mr. iViyie, and in other like Cafes, none can propound to lu'm-
felf to undergo any [Jneafinefs or Sorrow, provided it paffes with us for Pleafure, but he aims to free himfelf from fome Un-
eafinefs, or Grief that lies upon him, which his Paflion, or erroneous
J
udgment, hinders him from comparing fully with the
Decree or Certainty of Sorrow at a Diftance. The other Reafon of Mr. Bayleh, That Men flick not to pafs thro" many Sor-
rows and UneaflnefFes, provided at length they can arrive at Pleafure. The Corlars ((ays he) having received an
Affront, will
hide themfelves
five Days together in the BuJIies to waitfor their Enemy, being well contented to feed on the Roots
ofGrafs all that while,
on Condition, that they may have the Satisfatlion offeeing their Ambufiificcefsfid.
But we may rather fay, that the Une.ifinefs or
Grief which thefe Men have conceived at the Affront given them by their Enemy, who has provoked, and the eager Defire
of Revenge ^y;th which they are poflefTed, renders them infenfible of thofe lelfer Ditturbances which are caufed by the Cold-
nefs of the V^eather, or an hungry Appetite. We can obferve very few Men, who will willingly undergo any great Pain or
Trouble, to arrive at the Enjoyment of thofe Pleafures ofwhich they are moft fenfible, but when indeed only fome fmall In-
convenience, or little Uneafinefs, which they think can hardly be born, attends, there needs no great Refolution to open a
way to the PofTelTion ofthat Objeft which has made (o great Iiiipreflions upon our Heart. Buc the Profpect offome great Evil
abates the Eagcrnefs ofthe ftrongeft PalCons, and fills pliable Minds with fuch a Fear,as keeps them fromfwallowing the Baits
ofPle.ifure : liut iffometimes to fatisfy thefe Defires,Men run themfelves chearfully into great Troubles and fliarp Sorrow, we
muft think, that as foon as they are fenfible of what they have done, they'll immediately repent of their Rafhneis and Impru-
dence
;
the Pleafures, whofe fweet Morfels have drawn us away, will then ;'.ppear to have been bought too dear, and we fhail
renounce, with all our Hearts, the Hopes of all we once accounted Delightful, to be delivered from the Evil we endure
; a
Proof fufficient that we have not well con'uited our own Good, or that the Violence of our Palfions fo blinded us, that we did
not perceive all the Bitternefs ol' the Sorrow, into which we have fo blindly thrown our felves. To come then to the Subjeft
our Author is on,' Suppofethat two Law-givers, willing to fettle the fame Law, fhall propound, the one great Rewards to
fuch as obferve it, and the other fevere Punifliments to fuch as break it : Do we think that the firft would more effeftually en-
gage Men to Obedience, than the other ? No Body, I believe, will venture upon the affirmative
;
for there may be many
Men who will not much regard the greateft Rewards that can be given, and being contented with their prefent Condition, a-
fpire not to any higher Degree of Happinefs : But how few are there who v.ill not be affrighted at the Prolbeft of a great Pu-
niftlment, tho' they do not attentively confider it ; For one Man who will yield to a Temptation in fpite ofIuch Thrcatenings,
wc (hall find a thoufand who will not in the leaft be affefted with the Hopes of the greateft Rewards ; efpecially, if to defervc
them, they muft; of^'er Force to any ftrong Inclination, I (liall add one more Remark, which is this. If a Man were more fen-
libleot Good than Evil, thofe Sms into which Men fall for fear of Trouble, ought to be punifli'd with greater Severity, than
thofe which are drawn into the Love of Pleafure. Now this Confequence which .naturally flows from the Principle of
Mr. Bayle, is contrary to the Juds^ment of all the wifeft Legiflators and moft able Philofophers, as well as the conffant Praftice
^of all the Judicatures of the moftciviliz'd Nations ;
and lam apt to think, that Mr. B.iyle himfelf would not approve of a more
gentle
Treatment towards that young Maid who (as he inftances) fuffered herfelf to be carried away with the Prevalency of
a prefent
Pleafure, than of her who yields to the Threatenings of a furious Spark. See Chap.iv.. 7.
Notes there, and what
the Author
farther fays, Lj^.viii. Chap.iu. .19. as Mo Crot)us, Lib. ii. Ch-xx. . zc). N.ii. with the Notes. I am aware al-
fo that in the fame Book in which this Maxim, which has occafion'd this large Note, is contained, thefe Words, which will
confirm my laft Refleftion, are found, Imuch doubt (fays Mr. Bayle) whether the Prevalency of
that Pleafure which hurrieth us,
will be able to dimintjh the Crime,
p. 341.
joyraent
Of
Law in
general.
Book
I.
iovment
of It rais'd, there
remains fcarce any ;)er/><5Z, wz. fuch as
havenoPunifhment enaaedfor
thine
but a
dull
Acquiefcence
and Contentment. OfFenders, TisMacroMus fpeaks
%
or which wanted
Whence it comes to pafs that
many Perfons, then this penal Sanftion. Such a one they reckon the
only begin to value their
good Things, when they Lex Cincia
%
which had no other Clauie added
either have loft, or are in danger of loGng them, at the End to enforce it, but this, He that doth
But Grief into which all Evils and all Privations othenvifcjmllbe accounted to have done 'wickedly.
But
of Good 'are at laft refolv'd,
is not itfelf a bare I fhould conjefture,
that in that Law either the In-
Privation but
aThin^^ of a
moft pofitive Nature, famy alone was thought a fufficient Punifhment,
or
and of fu'ch
prodigious
Strength, as to be able fo it was left to the Powerof theCenfors to fix fome
far to
extineuifh
all
'
Senfe and Value of Hap- further Mark of Difgrace on the Delmquents in this
pinefs as fometimes to make us defire fo fevere a Point. That fuch Perfons were not altogether un-
Reme'dy as Death, for its Cure.
pumih'd, we may faiily conclude from
7:..^.
-.
Hence we think,
civil
LegiHators have fuffi- Cicero de Legibus, Lib.u. Ch.ix.
>
The funijhment
cient Grounds and
Reafons for choofing to malce
of
Perjury is from
Men Difgrace, andfrom Heaven
the Sanaion of their Laws
confift rather inPunifh- Defirumon.
Livy, Lib. x. Ch. ix. gives us an In-
ments than in
Rewards.
The
Obfervance of hu- ftance of another Law feemingly imperfeSl.
'^
The
man Laws is indeed
advantagious enough in ge- Valerian Zaw, fays he, ivhen it hadforbidden the
neral as it fecurcs the Poffeffion
and Enjoyment fcourging, or the beheadingof a Man, nvho fJwuldmake
of thofe Bleflings which attend a civil Life : But an Appeal, only added, that whoever aEted thus, ac-
were the ExercHe of common
Virtues enforc'd by ted -wickedly. tJois
I
fuppofe {fo
great was theModefly
the Propofal of particular
Rewards, 'twere impof-
of
Men in thofe Days) might be thought a
fufficient Tie
fible to furnifh Stock
enough for fo profufe a for a Law: But in our Timesfuch a Simplicity
of
Ex-
Bounty On the other hand,
'
the denouncing preffiun would be us'd in no Threats, but
thofe which
of Punifhments was the fureft way to make Men were defign'dfor Jefts.
In the fame Rank we may
fliake off that heavy
Drowfinefs,
with which moft place the Law of " Zaleuchiis mention'd by Diodo-
of them are befotted and benumm'd
: And becaufe rus Siculus, Lib. xii. Ch. xx. Let no Citizen
profecute
generally the
Tranfgreffion of the Laws isjoin'd his Enemy with implacable Hatred, but let himfomain-
with the Hurt of others, and with fome imaginary tain Enmity with him, as
if
he werefloortly to return
Good of the Offender,
therefore it feem'd moll into Favour andFriendfnp. He that doth
otherwife,
expedient to rcprefs the enticing Allurements of let him be reputed a Man
of
a
fierce and barbarous
Sin by
reprefenting the
frightful Image of that Difpofition.
Unlefs you'll lay, that in this Cafe, as
Pain and Grief which was unavoidably to follow well as the former, the Infamy may well be inter-
it. Thus we find that civil Laws do always come preted as a
Punifhment. And fo likewife in thofe o-
eiiforc'd with a Penalty
denounc'd againft Tianf- ther Laws recited immediately after by the famcAu-
nreflbrs either exprefly
definingthe kind of Mulct thov. Lib. xii. Ch. xxi. Let not a free Woman,
unlefs
or Punifhment j
or elfe intimating, that it is left fhe be drunk, go attended with above one Maid. Let
undetermin'd to be fettled by the Difcretion of her not flir
out
of
the City in the Night-ti-me,
unlefs
the Judges
and of thofe who are to take care of when
f^e
goes toproflitute herfelf to her Gallant.
Let
putting the Laws in Execution.
Indeed the Ro- her not wear golden Ornaments, nor Garments inter-
man Lawyers tell us of fome Laws, which were im- woven with Gold, unlefsfhe defigns toaB the Court
efan.
*
Onefmall P,iin is fufficient to fpoil all the Pleafures we enjoy. TlieReafonof it is, becaufe fo long as wearetoubled
with
anyUneafinefs, we can't think oui- felves happy, or in the way ot Happinefs, becaufe every one looks upon Grief
and Uneafinefs as Things inconfiftent with Happinels. Uv. Locke oi Hum. Under
ft.
^.z99-
*The Original being fo contufed in this Place, that the Author's Reafonings quite lofe their Force thereby, I have
thouaht fit to remedy it^by tranfplanting two fmall Sentences, and changing the Conncftion, -vU. after De leur Loix, put. Car
il fafloit, Sec. thus in the Sm^/;/?; Tranflation, ahet Rezi^'ards, Lin. ix. yut. The denouncing of
Puniflimenis. Lin. xii. and read-
in*^ to, follow it, return to. The Obfervance, &c. Ii. v. and fo go onat; xii. becaufe to put the firft Periods into a Pa-
venthefis, as the Author does, makes an harlh Confufion.
7
Inter Leges quoque ilia imperfe6la
(ffe
dtcitur, in qua. nulla deviantibus poenafancitur. Macrob. m Somn. Scip. Lib. ii. Ch.
*
The Cincian Law is fo called from M. Cincius the Tribune, who propofed it, A. U. C.
549.
It forbad all Advocates and
Pleaders to take any Money or Prefents, from whence Plautus calls it Muner^lis. See Tacit. Lib. xi. Ch. v.
'The Latin is this : uifecusfecerit,
improbe fecijfe videbitur. It is not known whence our Author took thefe Words : But
thefe fort of Laws do not make void what was done againft their Proliibition. Imperfeila Lex
eft,
yeluti Cincia, quie
fiipra
certum modiim donarifrohibet, exceptis quibufdam cognatis, cr
ft
plus donatumfit, non refcindit, i. e. Cincius'sLaw is an impertea
one- becaufe, tho' it forbids all immoderate Fees and Gifts, unlefs to fome Kindred, yet if more be given, it makes them
not void. Vlp. Inftit.Tit.i. .i. See iii. iii. C/i.vii.
. 6. following,
<
Who fays, Annal.xm. .
Ixii. Suillii opprimendi gratia repetitum credebatur Senatufconfultum,
PoenaqueCincii
Legisadzer-
fus
eos qui pretio caufas orajfent, i. e. The Cincian Law was made to ruin Suillius,
'
Perjurii Poena divina, exitium, humana, dedecus. Cicen; de Legibus, Lib. ii. Ch.ix.
i
TheZ,rjis, Valeria Lex, quumeum qui provocaffet, virgis adi, fecuriquenecari-vetuijfet, ftquts adverfusea
feciJJ'et, nihil
ultra, quam improbe facium, adjicit. Id {qui turn pudor hominum erat) viftm, credo, vincr.lum fatisvalidum Legis. Nunc vix
feri'o i'ta mmetur quifquam. But here, by the Bye, we may obferve, that the laft Words of this Paflage are much varied in
theManufcripts, where they are greatly corrupted. Gronovms the Father faintly conjeftures, that they (houid be read thus.
Nunc TJix Ji
fummas pcenas minetur quifquam; and he builds it upon two of the bcft Manufcripts, which read thus. Nunc
vix
ft
fummo ferio
mineiur, &c. Others add, Ita, ad fervata,
which being joined with the former Readings,
and keeping
to the Senfe, we may gather the true Reading to be. Nunc vix
ft
fummos
cruciatus minetur quifquam, i.e. Men at this Day can
hardly be kept to their Duty by the plai'neft Denunciation
of
the
moft fevere Puniftiments.
^
^
'
Diodorus Siculus's Greek, is, Ufof.r\m fi^riSitu, r !roAil
ixH"
atcara^aicl'' txv<
"'^^
ai; n'mrx, vciAi* tif (r'j&vrtt
^vyjit
f/jai^tSJCfjtiivMJ. [.
f/r/i^i ifiikriM !(.-- - , , -
,_ ^.
.
r ,5A5tJie? Tfv(pm "^
<iKoA(n'5 rut iirtm^^Jf^UTm, noiti
f
lotsAira rnt <ci^f'
o.u'.k.u .- .,^^./,i,iii, ci.y.^a5^ia~ 01
;roAiV.5 wi. See Montagne's EfTays, Lib. i. Chap, l.viii.
Digeft.
Lib. xl. Tit. 7.
De Reiigiojis, c Sumptib. Tuner, crc.
Leg. xiv. . 14, & Lib. xlyii. Tit. 12. De Sepuhhr. viol. Leg-\\\. . 4-
I
Let
Ghap.
VI. Of
Law in general.
j^
Let not a
Man
-wear a Ring allied to Gold, or a Gar-
compulfive Power, or
the
Power of exafling from
ment
approaching
near to Milefian Richnefs, mlefs he the Subjeft a Conformity
to the Rule
' *
pre-
be guilty of
Fornication, or
of
Adultery. Thus{^% the fcrib'd them by decreeing
and
aftually inflifting
HUtorian
proceeds to obferve) by fiich fcandalous Penalties, is properly in the Perfon
of him who
Exceptions
and Conditions, he eafily diverted his Sub- made the Laws, or of him who hath
the Care of
jeUs from
the Piirfuit
of
Luxury and
of
Intemperance, their Execution. Liban. Orat. V. La-vji
'were
of no
For no one could hear the expofing himfelf
to his Fel- Force without
Judges to put them in Execution.
Bare
lows by
fo
foul a Difgrace
'.
Statutes have neither Ears to hear cur
Caufi, nor
Thus then^ there are two Parts of a Law, one Feel, nor Hands, to haJien.to us and defend us : But
Definitive,
and the other ^/W/Va/we, which ithe all the
AJJiflance ivhich
Jufiicc gives us, is conveyed
penal Santtion. Thele, we fay, are two Parts of by itsMiniflers. Tho' 'tis a common Thing with
the fame Law, and not two Species of Laws. For Writers to attribute to the Laws thcmfclvcs fuch
as it is loft Labour to fay, Do this, if nothing fol- Effeds, as in a ftrit Senfe belong to the fupreme
low befidesi fo it is abfurd to fay, Tou fhall under- Power. Of which kind of Speech, that one Paf-
go a Penalty, unlefs it have been before fignified by fage of Jpukius
^
may be a fufficient Inftance,
^uod
what Means we fhall render ourfelves obnoxious efl lex in urbe, dux in exercitu, hoc
efl in mundo
to this Suffering. We mull therefore take No- Deus. What the Latvis
inaCity,ivhattheGeneralis
tice, that the whole Strength and Force of a Law in the Army
^^,fHch is Govt in the World. When
properly confifts in declaring what our Superior is Livy fays '7, 'the Commands
of
the Laws are niorepoib-
pleas'd we fhould perform or omit, and what Pe- erful than
thofe
of
Men; this is fo far true in De-
nalty we fhall incur upon Default. Whence alfo mocracies only, that the Magiftrates cannot recede
it may be underftood in what Senfe the Power of from the Laws, nor over-rlile their Force,
obliging is attributed to the Law. For, properly Legiflators, as fuch, are faid to compel, only
fpeaking, the Power of obliging, or laying an in- morally
j not that by any natural Violence they fb
ward Neceflity on Perfons to a6l in fuch a Man- conftrain a Man, as to render it impoflible for
ner, is in him who bears the fovereign Command, him to aft otherwife than as they dire6t } but be-
But the Law is only the Inftrument of Sovereignty, caufe, by declaring and exhibiting a Penalty a-
by which the Ruler makes his Pleafure known to gainft Offenders, they bring it to pifs that no
his Subject, which being once difcover'd^ an Ob- Man can eafily choofe to tranfgrefs the Law
}
hgation to Obedience is produc'd in them by Vir- fince, by reafon of the impending
Penalty, Com-=
tue of his fupreme Authority. Hence too it ap- pliance is in a high Degree preferable to Difobe-
pears, that the vulgar Diftinftion of the Power of dience.
zLzv/, into direSlive and compulfive, was ill made
j
XV. Now by attributing thus to Laws the
unlefs by the compulfive Power we underftand Power of obliging, we immediately exclude Fer-
tile penal Claufe. For the proper Efficacy of a miffions
rom theNumber of true and proper Laws;
Law confifls in direEling, as it declares the Will of Tho'
Modefiinus
'
tells us, the
'
Virtues of Law
the Sovereign, and denounceth Threats againft are to command, to forbid, to permit, to punifh. For
the Subjeft, if he prove difobedient. Bat the ' P^rw^^ow is not properly an Action of the Law,
Add. Lib. xi. Tit. vii. D. Be Rel'igiSumptibtn Funeral. & Lib. iii.
.4. Leg.de Sepulchre violate.
*>
De Maude, />. 749.
Ed. in ufum Delph.
Lib, i. D. Tit, iii. i,
7.
* The Original is, ab
ipfis,
for tfjis prsfcriptam.
' Tiiis Author cites only the Z,<if/ Verfion of ii<jj's Oration V. He has fome Declamations, but I have never feen
his Orations.
* *
The Senfe of this Paflage is certainly taken out of Ariftotle, who fpeaks exaftly the fame Thing in his Book De Uunde^
Chap. vi.
'*'
Imper'taque legum petentiora, quam hominum. Tit. Liv. LibJi. Chap. i.
Afr. Barb. ATO T'i; ^ o . XV.
* The Words of the
Digefts are, Legis virtus [hxc]
efi,
imperare, vetare, permittere,punire,
Digeft. Lib. i. Tit. iii. Leg. Vii.
* This is not always true, for every one knows, that Laws fometimes pofitively grant certain particular Privileges and
Rights
;
If we carefully refleft upon the Nature of moral Things, we fhall find that the general Notion of a Law, al it im-
plies a Conftitution by which a Superior orders the Adions of fuch as are fubject to him, includes not only an Obligation
to do or not do certain Things, but .ilfo a Liberty to do or not do others So th.nt Liberty imports always a Conceffion,
either exprefs or tacit, which is a pofitive.Thing. And indeed on what are all the Rights we have founded, but upon the
pofitive Will of our Superior, by Virtue of which we may defend ourfelves, or require the Protection of the Law againft
all themwhoendeavourtomolcft us in the Enjoyment of fome lawful Ri"ht ? Farther, Right and Obligation are two re-
lative Notions, which always go Hand in Hand. And why may we not allow a Law of meet PermiiTion, as well as a Law
obligatory? Certainly, if this Law be neceffary to impofe upon usa Neceflity of afting, ornotaaing, the other is no lefs
necelTary to put us in a State of afting or not afting with Security and Impunity, as we think fit. Crotius, who, like this
Author, affirms, that Obligation is the EfTence of all Law, feems tacitly to acknowledge in the fame Chapter {Lib. i. Ch.i.
. 17,)
that Permifion is comprehended in the Notion of a Law. We muft therefore allow. That the Law of meer Permif-
/io IS an Ordinance or Conftitution by which a Superior gives to thofe that are fubjeft to him, a Right, or moral Power to
have Things fafely and lawfully, or to do and require of another certain Aftions, if he judges convenient. See what Mr. Ti-
f/j fpeaks much to the fame Purpofe in his 0^/rT;. onPufendorf. 1, li. Mr. StWen has .already maintained the fame Opinion,
and ufes a Comparifon very proper to make it underftood, viz.. All the Boundaries which divide my Field from my Neighbour's,
jet out the Extent
of
his Field as well as mine
; fo
the obligatory Right, which determines what Ailions are commanded and what
forbidden, being oncefettled, there necefarilyfollows a Right
of
meer Permijfion, which has for its ObjeCl all other Ai'lions, about
'^'ch the Lawgiver has determined nothing authoritatively
, and confejuently permits every Man to do, or not to do, as he pleafes.
DeJureNat.
& Gent. Lib. i. Chap iv. Again, We muft remember, that there is a great Difference between the Permiflion
of human Laws and divine
;
for the Permiflion of divine Laws is always abfolute, fo that every one has a full Right to do
all that they
permit,
provided the Things permitted are not forbidden by any human Law, to whicli lie ought to fuhmit, in
Obedience
to fome other divine Law; but as to human Laws, the Permiflion which they give is for the moft part imper-
tett, which
implies only
Impunity in human Judicatures, as our Author explains himfelf a little lower. Neverthelefs 1
am aware,
that this
Author forgetting his Principles, feems to allow, bcfides a Law of meer Permillion ;
for fpeaking of the
^r n,!
V,^''^^^
Aftions in the following Chapter,
. 3. he fays exprefly. By a Law I mean always here a Law which in-
dijpenjihly obliges to
fome Thing, and not a Law that only permits. Legem neceflitantem, non
permittenteni. Grotius alfo
Ipeaking ot the
firft Right of the Occupant fays, Itisfeitndedupenthe natural Right of
bare Permifion. Eft hoc jus ex jure
naturae permittente.
lii.ii. a.iii. .
J.
L but
74
but the
Ncgiiiion of an
Abion. Whatfoever
Things
the L^wpeimts,tho(e it neither commands
norforbids^
and therefore it really doth nothing at
all concerning them. Some maintain, that there
is neverthelels a kind of Obligation in Permiffions-y
not indeed affefting him to whom we fay a Thing
is permitted, but binding up a third Perfon from
giving him any Hindrance, in cafe he undertake
what the Law thus permits. Tho' this is by ma-
ny reftrain'd to fuch Things as are fully and per-
feftly permitted, fo as not to take in thofe leder
and imperfeft Permiffions, which may be more
properly flil'd Indulgences or Connivances. Thus,
for Example, the Laws of fome Countries permit
the killing of a Wife taken in Adultery; yet they
do not forbid others from ufing their utmoft to
hinder her Death. But if we would be accurate
and ej^act in our Way of talking, even thisEfFct
doth not properly rcfult from the Permiffion of
the Law, but from every Man's jufl: Liberty
'.
For about thofe Things in which the Law gives
me no Stop or Hindrance, I have a perfect Free-
dom of acVing, the chief Effect of which is, that
no Man ought to difturb me in the harmlefs Ex-
ercife of it. So that for a Law exprefly to per-
mit thofe Things to which we claim a fufficient
Licence by then- not being prohibited, which can-
not well fall under Doubt or Difpute, feems little
better than ufelefs and fuperfluous. As likewife,
it is not always nccefTary, that when any prohibi-
ting Law is repeal'd, an Aft hitherto forbidden,
fhould by an exprefs Ordinance be declar'd permit-
ted: Since upon Removal of the former Impedi-
ment, our natural Liberty doth, as it were, re-
vive and recover itfelf. There are indeed twofpe-
cial Cafes, in which civil Lawgivers are wont to
ufe exprefs Permiffion : Firfl, when Licence and
Impunity is indulg'd to fuch an Act, within fuch
a Meafure
>
and, fecondly, when the Licence or
Impunity is to be purchas'd by fome Fine or Bur-
then. Of the former Cafe, fome give an Inftance
in the Laws of mofl: Countries permitting Ufury,
within fuch a fix'd Degree : Of the latter, in the
Conltitutions of fome Places, where Women are
allow'd to proftitute themfelves, upon Condition
of paying a certain Tax
'*
: which whether
it be well or ill done we are
not now to dif-
pute^,
'.
Legal Permiffion is divided into Plenary, which
gives a Right of afting, and makes the Deed alto-
gether lawful
; and lejs Plenary, which
either af-
fords Impunity, or freedom from
Impediment, or
both. Now that feveral Things find an Impunity
amongft Men, is occafion'd by fomeof thefeRea-
fons : Either, that the Matters exceed the Reach
of human Courts and Cognizance, as do the Faults
of Kings
}
or, that human Law hath either deter-
Of
Law in general. Book
I.
min'd nothing plainly about fuch an Aftion,
or
hath declar'd It flrall be lawful; or, laftly,
becaufe
civil Ordinances frequently leave many Things
to
the Modefty and common Honelty of every
par-
ticular Man ^
Some ha\e more accurately obfeiv'd concern-
ing thefe Permiffions of Civil Laws and
Civil
Courts, that they are made either by the Adion
of
the Law, or only tacitly. To the former they
refeu the Omiflion, or paffing by of a Matter,
not
fimply, and, as it were, by Accident,
but when
the Defign and the Form of the Law run in fuch
a Manner, that the Legiflator ihews his Intent
of making a full Enumeration of Particulars:
For, in fuch a Cafe he is fuppos'd
to have
permitted whatever he hath not exprefly
reckon'd
up amongft Things prohibited
;
provided the
Matter be not repugnant to natural
Honefty.
Thofe Things are underftood to be tacitly forbid-
den, which the civil Power lets pafs by conniving
at, tolerating, or difl"embhng; either for the pre-
fent only, or for a longer Time, fo as to let them
obtain the Force of Cuftoms. Yet a Permiflion
granted by a civil Law, cannot caufe that an Ac-
tion fliall not be contrary to the divine Law,
or fet it beyond the Fear of the divine Punifh-
ment.
We may farther remark, that when a Thing is
faid to be permitted, which is not determin'd by
the * exprefs Command or Prohibition of any Ci-
vil Law, we are not to cavil at the Words of the
Law, but to confider the Scope and Intention of
it^ For many Things are contain'd in the Senfe
of the Laws, and are fuppos'd to be really implied
by them, either as they are neceflary Confequen-
ces, or upon account of their near Afiinity and
Rei'emblance to the determin'd Cafes.
Regard is
likewife always to be had to natural Law, or to
common Honefty,
which is the perpetual Supple-
ment of civil Decrees.
Lafily, Thofe Things
which are tolerated only for a Time, or upon the
Score of Neceflity,
cannot fall under the proper
Notion of Rights.
All 7 which Obfervations are
chiefly to be underftood of the moft perfe6t or
plenary
Permiffion \
XVI. The Matter of Laws in general, is what-
ever can he done by thofe PerfoQS for whom the
Laws are made, at leaft at the Time of their Pro-
mulgation. For if any Man afterwards, by his
own Fault, lofcth his Ability to fulfil the Law,
the Force of the I-^it; doth not thereupon ceafe and
expire
;
but the Legiflator hath Power to punilh
him, for rendering himfelf thus incapable of con-
forming to the Rule prefcrib'd him. Bur, o-
thenyile, to make fuch a Law as the Subject can-
not fulfil, and yet hath not loft his Power of ful-
filling by his own Fault, is not only a moft vain,
Vid. Evagr.
Hift. Fcclef Lib in. Ch. xxxix.
Of the Tribute pM by common Strumpets, which Anaftafius the Emperor
took
.f
See B. v.... of our Author. Ch. .. . 3.
b
yid.
Digeft. Lib. 1. T,t. .xvii.
'
Vd. Bender. inOrot.
Mr. Barb.
NOTES on . xv.
i
But the freeUfageof thisF.-,cultyin fuch and fuch Cafes, is an Effeft of the Permiflion of the Sovereign Leoiflitor
who has impofed Laws upon us m giving us a Being.
See Note
>
above
a
".itur,
4 See Evarrius-s Ecclef. Hift i,i. iii. c^^^ xxxix.
about a Tribute cMed Chryfargyrus, which
was levied upon the Cur-
lezans, and which wasabohlhed hs- Anajiaftm, as our Autlior there obferves.
j-uuinc v-ur
s Sec what is faid. Lib. siii. Chap.i.
.3.
* \nMxhemnon,oiPufeniorfi,isj^^^^^^
^,,,
/-^.l^/^Tranflator renders them, //..
v&Z:"il^^^^
^'"""^
""^ ^^^"'^' '' theConneaionof the Difcourfe recuires,' tor
' See Lib.y. Chap. xii.
. 17. following.
but
Chap.
VI.
Of
Law in general.
75
but a
moft unjuft Defign
*
. As to the fubjeft
Matters
which employ the particular Species of
Laws, we fhall more conveniently confider them
in their
proper Place.
XVII. To know who is capable of being o-
blig'd by a Law, we need feek no further than to
the Right of the Legiflatorj which certainly takes
in all thofe who are fubjeft to his Command.
What Perfons the Legiflator intended to oblige, is
plain enough from the Law itfelf For in all Laws
it is fignified whom they concern
j
either by ex-
prefs Determination , made fometimes by a gene-
ral Sign, fometimes by a Reftriftion to certain In-
dividuals
i
or clfe by fome Condition or Reafon,
which a Subjeft finding in himfelf, at the fame
time apprehends that he therefore ftands ohll^d by
fuch a Law. Regularly then, a Law obligeth all
Perfons fubjeft to the Legiflator, whom the Rea-
fon of the Law reachcth , and to whom
'
the
Matter of it may be applied. For otherwife. Tu-
mults and Confulions would continually arife a-
mongft Subjefts, the Prevention of which Difor-
ders was a principal Reafon why Laws were firfl:
introduc'd. And therefore no body lliall be e-
fteem'd exempted from a Law, unlefs he can fliew
his peculiar Privilege. Yet this indeed frequently
happens, that a Man may be exempted from the
Obligation of a Law, after the Time of its being
enacted, and this we call being difpens'd'witb. For
if the Legiflator may rightly abrogate or repeal a
Lav/, he may as fairly fufpend the
Effe^
of it in
fome certain Perfon. Difpenf^zliou differs from Equi-
ty^, with which it is generally confounded, in this
Refpeft, that the former cannot be granted, but
by one endued with Legiflative Power
;
whereas
an inferior Minifler of Juftice, not only may, but
cngbt to apply the latter
;
fo that it he follow the
llrit Letter of the Law, in a Cafe where there is
room for an Equitable Conflruftion, he fliall be
judg'd to act contrary to the Mind and Intention
of the Legiflator. Difpcnfations therefore depend
on the free Grace of the Lawgiver, but Equity
on the Office and Duty of the Judge.
In granting
Difpcnfations
'
,
great Prudence is to be us'd,
Icfl: by a promifcuous Indulgence, the Force and
" put the Sentence in Execution. And this they
Authority of Law be enfeebled : or lefl:, if the
" praftife as a Salvo to their Confciences
;
that
fame happen to be denied
to Perfons of the like
Condition, Occafion iTiould
be given to Anger
and Refentmcnt, whilft Men of equal Circum-
fl:anccs arc not admitted to equal
Favours. Plu-
tarch hath recorded fcveral Inllances
of very nice
and fubtil Difpcnfations. As when
Agefilaus fu-
fpended the Laws for one Day, with this Form,
Let the Laws Jleep to Day
*
>
to hinder
thofe
Perfons who had fled in an Engagement, from fuf-
fering the ufual Difgrace. So when Demetrius de-
fir'd to be admitted at once into all the Athenian
Myfterics, whereas it had ever been a Cufl;om to ce-
lebrate the greater Myfieries in Noveynber, and the
lefler in y/a^a/7, .y/ra/offo publifli'd a Decree, that
the A'lonth March, in which Demetrius vifited
Athens, fhould be call'd, firfl: November, and then
Augufi
t".
What the fame Author reports of Dc-
mofihenes is more plaufible : Demoflhenes, upon his
being recall'd from Banifliment, lay under a Pecu-
niary Mult, and the Law forbidding that he fliould
be entirely difcharg'd from it without Payment,
they invented this Way of eluding the Lawj they
had a Cuilom of giving Money to the Man who
prepar'd and adorn'd the Altar, at the Time of Sa-
crificing to Jupiter tht Deliverer : This Office, and
this Money, they decreed Dcrnojlhenes ; and under
that Pretence allotted him fifty Talents , the Sum
in which he had been amerc'd. The Lacedemo-
nians made ufe of much inch another Evafion in
Reference to Lyfander. It was a Law amongfl:
them, that no Man fliould bear the fame Office a-
bove once
'
j but now refolving to let Lyfander
have again the chief Power in a Naval Expediti-
on, they gave
^
Aracus the Formal Command of
the Fleet, but join'd Lyfander with him
^
in a
private Station, with exprefs Orders, 'That the Ge-
neral fliould never al contrary to his Advice
"
. I
know not whether the Spanif)
Cullom mention'd
by Naudeus ^ , may not be reckon'd likewife a-
mongft thefe nice Pcrmijfons :
"
\n Spain, he fays,
"
when they deem a Man to be guilty of Trca-
"
fon, they appoint Judges to fit on him in fecret,-
"
who formaProcels, and condemn him to fuffi:r
"
Death -, after which they feek by any means to
=
Plutarch Afophthepn.Lncon.c^ Agefil.
Appian.Lib'jc.
>
Idem Denietr.crin Alexandr. p.Cjz, t5| 679.
c
Diodor. Sic.
Lil>. \nl Ch.c. Plutarch Lyfand. Add. Valer. Max. Lih.yl Ch.y. .3.
'^
Coups d'Eftat.
Ch. iii.
/.
19S.
Mr. Barb. NOTES o:i .
xvi and xvii.
It is neceflai'y that what is forbidden (hould produce fome Advantage, either to thofe for whom the Law is made,
or to others; for 'tis not reafonable that the natural Liberty of Subjefts fhould be reftain'd, and no Profit thereby re-
dound to any body, De Offic. Horn. <^' Civ. Lib.\. Ch. ii. .8. See what is faid. Lib. yi\. Ch. \x.
. 5. Laws are m.ade
only about fuch Things as commonly happen, as is obferved above, Ch. xi. . 5.
Again, as to what concerns our
natural Right in particular, we ought to take Notice, with Mr. Titnis {Obferv. 59.)
That n.atural Right, which is obli-
gatory, has for itsObjed fuch Adlions as carry with them fome Convenience, or Inconvenience, neceflhry for the hu-
man Nature, as hath been proved. Lib. I'l. Ch. ill. As for all other Aftions, which we may call inditferenr, the natural
Ri'^ht of fimple Permifllon leaves every one at Liberty to difpofe of them as he pleafes. But moft of thefe laft arc for the
moft Part regulated in different Manners, by the pofltive Laws of G o d and Man, as the legiflative Power fees convenient.
'
See Lib.v. CA.xii. . 10. following.
*
See Lib.\. Ch.xi. .21. following, as alfo h\s Abridgtnent of
the Duties
of
a Man and Citizen, Lib.i. Ch. ii,
J.
X-.
Farther, to fpeak properly, what he here calls Equity, ought to be called. An Interpretation according to Equity
;
as
T(/(aj fpeaks, Obferv.6i. See a little Treatife of Gn;r;j's upon this Subjeft, printed in the latter Editions of his Book De
^ureBel.iiy Pac. which is entitled, De jquitate, indulgentia,
a-
facilitate.
'
See Mr. B/iy/e, in\ns Divers obfervations about a Comet,
p. ^^6. and the fecond Volume of his Pdrr^<j//;!i7,
^.
i/^-^
,
*
The Creek of Plutarch is, Ki (p>i(r5, oVi tks mjiaxs ^si" s-ij/ispM IZv xaUuS'iv, c J^s r <r>iu,i](i>t ii^ifuf xvflm
wctt nf^i
to
'
The Word bis, being omitted in all the Editions of this Author^ fpoils the Senfe quite
;
and therefore as the
Trench Tranflator adds, deux fois, fo the Engltfli
puts in, above once.
'
Here's a great Miftake in all the Editions of the Original, putting Aratus, the Name of n
General of the Achiaus,
a very different Perfon from this Admiral, for Aracus.
' The Latin fws, Privatus, as the
Engliflj Tranflator renders it, but furely our Author meant f^(?J, a Deputy; but
however that be, ''tis fafeft to follow Plutarch, who calls him, E^ris-oAiW, i. e. Pr^feiTus^
C/.#J, -a Counter-Admiral, a:
leaft. See further about thefe forts of intricate Difpenfations, in Montaine's Ejfays,
Lib. i. Ch, xxii.
La'
"
they
^6 Of
Law in genetal, B o ok
I.
"
they may not be accus'd oF Injuftice in puniili- Some arc us'd to call pofiti-ve Law by the Name
We muft indifputably treat of the Juftice of Aftions, before that of Perfons, becaufe this laft fuppofes the firft,
as appears by the Definition which our Author gives of it. The Way to undevftand thefe ExprefTions, to do juflly, t9
delight in Juji'ice, is not to be ignorant what Juftice is.
Laudabil'ia multa etiam mali faciunt, ipfe laudari, n'ljt opt'tmus, non poteji, Plin. Panegyr. Chap. Ivi, Sinners themfehes
do many Things commendable, but only the bejl Men deferve Commendation.
There is alfo a Cafe when we may do juftly in a negative Senfe, i.e. not unjuftly, altho' the Thing in itfelf be not
iuft.
This happens when a Man is really in an Error, or ignorant, as it often comes to pafs, both in refpeA to Right
and Faft. On this Ground Grot'ms maintains, and that with good Reafon, That War may fometimes be juft on both
Sides. SeehisBookDe Jure belli ip" Pads, Lib. ii. Ch. xxiii.
J.
13.
and what fhall be faid, Z,;^.viii. C/?. vi.
J.4.
blote z.
Go^' '0^ yS ToZtu, TTXVTCC ^XTilfH fJt/Ofor.
*AA' o?-ic, udc>.ov yv^G-lxv t' tjC^^ (poiTif
'Elvui (fi'xai-, iC B aoxiii utiti &sA<.
5
The Creek is, 'Amj i'lx.aiii; tVi,
>sx '
f'l
xaixav
'A*' iVi? a.S'iiiiiii i^iwafOf/(^ ftin /3i(A(T<.
'Ova
'
04 Tcc fjuiKpa XcC[jj^U)i'^v ecxi^iro'
'A^' 0? rot fijiyaXa y-ufrifii fjiyi Xafttixiwi.
(6)
OS Ti ^'i axoAaraivowa Tiiri >ipi5, ii'\ t a.iiy.a,!rcr.iTU., iSi T ei'rroS'iMuiravltc fi t; xockaij Taiclici 'aiSoiif, i^f jK^ ran;
Tiruvri
KXTOciaitratlai { rOi osyfjoij
*
Grounds
Of
the }^aUties
of
moral Adions. B ook
L
86
"Grounds
of a Complaint againft him. His other
Inftance Mr. Hobks thus
propofeth in his Levk-
tban, Ch. xv. p.
jf
. Private Men may remit to
one another their Debts, but not Robberies, or other
Fiolences ivhereby they are
endamaged:
Bccaufe the
detaining
of
a Debt is an Injury only to themfelves,
hut Robbery and Violence are Injuries to the Perfon
of
the Co-mmonivealth. Which we are willing e-
nough to admit, provided he will not hence infer,
that in Crimes an Injury is not likewife done to the
particular Perfon who is hurt. But as he propo-
feth the fame in his Book De Give, Ch. iii. . 4.
it is by no Means to beendur'd. He fays, that in
a State,
if
any one hurts another, with whom he hath
not covenanted, he damageth the Party on whom he
brings the Evil, but he doth an Injury only to him
who holds the fbvcreign Power in the State. For, if
one of my Fellow- Subjects hurts me by Violence,
doth he offer an Injury to the King only, and not
to me
.'*
Or fuppofe wc fliould grant, as Mr. Hobbes
defires, that when Men live in a natural Liberty,
each of them hath a Right to all Things, yet will
this hold good amongft the Members of the fame
Republick, who own one common Mafter ? As to
what he fubjoins, that
//
the Perfon who
received
the Damage, fliould accufe the other
of
injuring him,
he would be anfiver'd in this Manner, Jlliat are you
to me? Whyfijould Iact according to your Pleafure,
rather than my own^ ftncc I don't hinder you from
acting by your own Ifill, rather than by mine ? 'Tis
fo far from being true, that
if
no particular Cove-
nants have intervened, this way of
fpeaking will not
be free from Reprehenfwn, that we fhould rather
imagine a Man to be out of hisSenfes, whofhould
hope by fuch a way of arguing to fatisfy the Com-
plaints of one whom he had hurt. Yet one Thing
Mr. Hobbes hath well remark'd, that the Term
of
Injufiice
fignifies
with Reference to the Law, but the
Term
of
Injury with Reference both to the Law, and
to the particular Perfon. For, when an imjufl
Thing is done, all may call that unjujl, or it is un-
jufl to all. But an Injury may have been done, not
to me, or to him, but to a third Perfon, and
fometimes to no private Subjcft, but to the State
only} as when a Man is kill'd in a Duel, for In-
Itancc, upon a fair Challenge. For in this Cale,
the Party whoreceiv'dthe Hurt, cannot complain
of having an Injury done him, fince he himfelf a-
greed to the Chance of the unlawful Combat:
But the LegiOator may, however, profecute the
Survivor for tranfgrcffing his Prohibition.
XIV. Having arriv'd to know what Juftice is,
we may ealily fettle our Notions of Injufiice, and
of its feveral Species. An Aftion, then, is un-
juft,
either when we apply it defignedly, to a
Perfon to whom we ow'd a different Aftion, or
when we deny another fomewhat which was real-
ly his due. That is, We are equally guilty of a
Breach of Juftice, by doing any Evil to another
which v/e had no Right to do, and by taking
from another, or denying him any Good which
he had a fair Title to require.
'
For good Things
are of that Nature, that they may be given to any
Man without a Reafon, provided a third Perfon
is not defrauded thereby : And the Evils likewife
which a Man hath merited, we may without
Injury withhold from him, if at the fame Time
we do not endamage others by our Forbearance.
An unjuft Aftion, therefore, either brings up-
on another Man what it ought not to bring
upon him, or denies and withholds what it
ought to give him. For the Denial or Omif-
fion of an Al:ion, is, in moral Account, itfelf
an Aftion.
XV. But an unjuft Aftion, proceeding from
Intention, and trefpafling on the perfeft Right of
another, is, in one Word, call'd Injury. Which
if we would exaftly ftate, we muft again obferve,
that a Man may be hurt three ways; either, if he
be denied what he ought to have
,
or if that
which he now hath for his own be taken from
him, or if fome Evil be put on him by another,
who had no juft Right of doing it. As to the
firrt of thefe Ways, Things may be faid to be due
to a Man, either by the bare Law
'
of Nature,
yet fo as that he hath no perfel Right to them
j
of which Kind, are the Offices of Humanity, Be-
neficence, and Gratitude : Or elfe by Covenant,
and that either fuch as is cxprefs and particular,
or fuch as is contain'd under our Obligation to
Civil Laws, by which we engage ourfelves to per-
form thofe Things towards others, which the
Laws command us to exhibit. If Things of the
latter Kind are denied a Man, an Injury is properly
done; but there is no proper Injury in the Denial
of Things which belong to the former Kind; tho'
there be a Sin indeed committed againft the Law
of Nature. Yet neither doth the Law of Nature
itfelf allow of compelling another by Violence to
pay thefe Duties (efpecially if the compelling
Party have no Power and Authority over the o-
ther) unlefs upon urgent Neceffity: Since the
Nature and Property of thofe Offices requires that
they be peiform'd voluntarily, and without the
Motive of Fear. Thus far therefore, and no far-
ther, will the Maxim of Mr. Hobbes hold true.
That an Injury cannot be done, but to a Alan with
whom a Covenant has been made. But when we ftu-
dioufly and induftrioufly bring an Evil on another
Man, unconfenting and unprovoking, either by
taking from him any Good which he polleffeth, or
by polltivcly inflifting on him an Evil : In thefe
Cafes an Injury is always done, whether a Cove-
nant hath interven'd, or not. For Nature hath giv-
en this Right to every Man, that no Evil be of-
fer'd him from another Man, without his own pre-
ceding Demerit: Nor is it allowable for any Per-
fon, unlefs when provok'd, to hurt another, any far-
ther than the due Exercife of Government fhall re-
quire. We add, unlefs provok'd, becaufe to make an
>5Chen the Intention is dubious or equivocal, we ought to incline to that Side which is moft f.-ivourablc to the Agent,
There is a pretty Paffaa;e to this Purpofc in Plutarch, which it may be pleafant to read here. 'E
^ ^
rci^ hhicLi/jSinv soyois,
i spa|avlc!5 iuj-g [which lad Words fhould rather be read t5 !Tpa|ayT<i5 aiir)>\ ro Tit-fc'/uitm ff/zpamz i S'uvi.M/jt.% \|/y^
'iv^r,Xm on (peia x^ x.x,x.tin(utn tl'zrtfZoMt i /tPws-i. De Herodoti malignitate. They, who like Herodotus c.ln't deny
that an Aftion is praife worthy in it fclf, and can find no phtin Reafon to blame it, will pry into the Secrets of the Hcart,and
fuppofing them to be evil, endeavour by their Calumnies to create Sufpicions in other Mens Minds, manifeltly arrive at
the Heighth of Envy and ill Nature. 1 obferve [Cays M.i\ Montapie very well) thac the greateft Wits
of
our Time employ their
Ingenuity to darken the Splendor
of
the brave and generous jifiions
of
the Antients, by puttiug a bad Interpretation upon them,
and devifmg fome vain Caicfes and Occajions
of them. A cunning Cheat !
Left
I fliould grant an Action to be very excellent
and good, I u-ill
find out
five
hundred vicious Intentions, Lib. i. Chap, xxxvi. The famous Mr. rty/e, in his A''cwi ic/ztrj upon
Mr. Maimbourg's Critical Htftory of
Calvinifm, Let. xii.
. 1 2. aiiirms. That the Laws of Charity, which oblige us to put a
favourable Conftruftion upon the Aftions of our Neighbour rather than a difadvantageous, are altogether contrary to Rea-
fon, but I have endeavoured to invalidate his Proofs of that Pofition in my Treatife of
Sports, Lib.i.Ch.lii.
'
See Lib. viii. Chap. iii.
. 19, 20,
. iv. ' An Attempt is counted for an Aftion, when the Impediment of performing arifes from an InipofTibility com-
iilg on it by fome untorefeen Accident, or invincible Hindrance, and not from any Refufal or Dilcouragcment in the Per-
fon afting. Seneca has a fine PaflTage to this Purpofe, of which Mr. Hertius cites a Part; 'tis this, Siuidam ejus conditi-
onis ft'.nt, ut ejfeflum pnflare debeant
;
qnibiifdam pro effeClu eft,
omnia tentajfe, itt efficerent. Si omnia fecit ut fanaret, pere-
git Meiicus partes fuas, F.tiam damnato reo, oratiri
conftat
eloquently ojficium,
ft
omni jure ufus eft.
Laiis imperatori eti-
'
am viHo, ct- duci redditur,
fi
O' prudentia,
v indiiftria, a" fortitudo wuneribus fiiis funCla eft. Omniafecit, ut beneficium red-
dcret
j obftitit illi filicitastua. Nihil incidit durius, quodveram amicitiar/i c.xperiretur. Locupleti donare non potuit, fano adjidere,
filici fuccurrere. Gratiam retulit, etiamfi tu beneficium o rcff/)//?;. Dc l?enef. lib. vii Ch. xiii.
"
Some things arc of that Na-
"
ture, that they muft produce an EfFed
; in other things 'tis the fame with an EfFeift to have endeavoured. The Phyfician
"
has done his Office, if he has done all he can to cure. The Pleader, if he has urged the Law well ; and a General, if he
"hath managed with Courage and Conduft, tho' a fuitable Succefs do not iollow. Thanks is futficicnt, where no Rc-
"
quital can be made."
^
The Original expreffes itfelf thus, ObjcBa Adionum, i. e. The ObjeSls
of
Anions, but the Objeft of Affion can nei-
ther be commanded nor forbidden, but the Perfon who does, or not does a thing; and fo our Author hiinfelf ufcs it
in the next Paragraph. Doubtlcfs he means, the Matter of Aftions, and the Miffake arifes from hence, that in his l.le-
ments
of the Univerfal Civil Law, he had faid
{p. 317.) the Objecis of Laws; for in changing the Exprellion, he was
not aware, that Actions would not well fit the Place ot Lavjs.
J Our
Author calls this the i'ilth, and the next Commandment the Sixth, according to the Lutheran Divifion of thi
Dscalogue.
1
all
Chap.
IX.
Of
tie Imputation
of
moral
Actions.
all
NecelTitics
and DiftrefTes of his Body, contains
under
it in the Alanncr of different Species, the
Prefervation
of his Life, of his Members, of his
Health,
the turning away of any Thing that doth,
or may grieve, or molelt him, the fupplying him
with Food in Time of Famine, ^c. And the op-
polite or negative Law, in the lame Command-
ment, forbidding us to hurt the Body of our Neigh-
bour, comprehends, in like manner, Murther,
Maiming, Wounds, Stripes, Threats , l^c.
Thus too the affirmative Law, in the
'
fcventh
Commandment,
enjoining Chail:ity, contains un-
der it. Purity of Thoughts, Modelly of Words
and Geilures, Abllinence from unlawful Lovej
isle.
And the oppofite Law, forbidding Uncha-
ility, comprehends Adultery, Fornication, ob-
fcene Speeches and Geftures, and impure Imagi-
nations. For, to give an Inffance in this Cafe, ob-
feenc Words do not refpcd: Adultery in the Way
of a Part or Degree : But becaufc the divine Law-
giver was pleas'd, for Brevity fake, to comprehend
xaTLny fpecial A6ts under one general Law, hence
it comes to pafs, that he who commits fimple For-
nication, doth as fully and entirely fin againftthe fe-
vcnth Commandment, as he that is guilty of A-
dultery. Therefore, as to thefe Objefts, when
what the Law commands isnotperform'd,wemufl:
of Neceffity either quite omit, or do directly the
contrary. But other Objefts of Aftions, asdeter-
min'd in Laws, are in fuch a Manner divifiblc, that
they feem to confift of * integral Parts. So that
here it is not neceffary we fliould do all, or omit
all, or perform the contrary
J
but 'tis poffible to
perform one Part, and to let the reft alone. For
Example, the Law commands me to pay the La-
bourer his full Hire) now I may perhaps pay him
fomcPartofir, and keep
back the reft. But when
I not only deny a Man his
Due,
but farther
take
lomething from hmi, or bring
any
Evil upon him,
this Aft will be quite of another
Species,
and bear
no Reference or Affinity to the
former.
V. Befides all this, fince one may be
concern'd
about a more noble, another about a more
ignoble
Object; and fince one may
produce
moredoodor
Evil than another; it is plain, that upon this
Account
likewife, amongft good Actions fome are far bet-
ter than others, and amongft ill Aftions,
fome far
worle than others. Horace's
b
Inftance
mayferve
to illuftrate this Truth
j
Nee vincet ratio hoc., tantundem tit peccet^ idem^;
^li teneros caiiles alieni
fregerit horti^
Et q^ui noUurnus divum
facra legerit.
.
Reafon will never call't an equal Sin,
To rob an Orchard and a facred Shrine.
Add. Cicero pro Muran: Where he finartly
refutes
ikizStoicks Notion, thit all Sifts are equal. And
his
Paradoxes., Chap. iii. as alio Montaign's
Efjays.^
Lib. ii. Chap. ii. in the Beginning, and Gapndus
Phil. Epic. Tome iii. Yet in many Cafes
Horace's
Rcafoning will hold good, Lib. i. Epiji. xvi.
'
De milte
fah modiis qtium furripis unum.
Damnum
efl.,
non
f
acinus pa^o mihi lenius
ifio.
When from a thoufand Pecks you fteal but
one
Lefs Lofs is felt, but no lefs Guilt is fhown.
And this is the relative Eftimation of
Actions
which is treated of at large, Book viii. Chap.'in.
V'ul. Lib. xlvii. Tit. x. D. De Iniiiriis.
*>
B. i. Sat. iii. x;. 115, ii<'> u/-
*
We muftundeiftand them of Parts really diftinft one from the other, and which confequently cm exift
fep.irately.
.v. Shice this Author does not exprefshimfelf either diftinftly, or largely enough upon this import.mtSubjea
here
and in the Place, iii. viii. to which he refers us, treats of evil Aftions only ; 1 fliall give you an Abridgment of what he
{^ysinhis Elements
of umverfat Civil Lmv. Therelative<^antity
of Atdons may be conjider'd, i. In refpetl to the Objeci.
For
the more nolle the Objedis, the more is that good Atlion, done to that Objeti, better than another; and, on the contrary,
an evil
ylflion the more criminal. See Lib. yiii. Chap. iii. . ti. i. In RefpeH to the State and Condition
of the Agent.
And
fo a Be-
nefit ccnferr'J by an Enemy, is more confiderabk, than that which is received
from a Friend. And, on the contrary,
an Enlur'y
done by a Friend is morefliarp, and affeils more than that done by an Enemy. Seethe fame Place,
. 20. 3. In
Refpeel to the
Ailions themfelves, according as we take more or lefs Pains to do them. Agood Anion, the more difficult it is, the more
excellent and
more commendable, otherwife all Things are equal. On the contrary, the more eajily an evil Ailion may be avoided,
the more
enormous it is above others
of
the
fame Kind. 4. In KefpeSl to the Effetl and Conjequences
of an Aclion, on uhi:h
account an
Atlion is better or ivorfe, accordingly as the good or bad Confequences are, or may be forefcen andprevented. 5. In Refpeii to the Cir-
cumftances of Time and Place. See the Place already quoted. Infine, *Tis evfdent from this Comparifon of good
Atlions
one with another, that fome are more excellent than others, according
as the Pradice of fome ought to give
Place to the
Praftice of others, fince we can't difcharge all at the fame Time. See what is faid about this, Lib.y. Chap. xii.
J. 23.
CHAP. IX.
Of
the Imputation
<?/
Moral Actions,
The CoNtENTS.
IV. What can be effe6lually imputed to another.
V. Merit^ and Demerit ivhat.
VI. How the
EffeSts of
MoralASliommay
be abolijhei.
WHAT
Conditions are required to make an have formerly fhewn
at large : It remains, that
Aftion
capable of being imputed., or of be- we fee how and by what Means it may be aftually
ing confider'd
as really belonging
to a Perfon, we
imputed., fo as to produce fome moral Effed, either
N z
in
I.
Ofa5lual Imputation.
II.
Of Imputation thro' Favour.
III.
Of Imputation
from Debt.
Of
the Imputation
of
moral Aclions. Book
I.
92
in the
Agent, or in fome other Man. And here
we muft firft of all diftinguifh between thofe
Actions which are direted by Law, and thofe
which are left to every Man's free Pleafure.
Actions of the former Kind are then fiid to be
imputed to the Agent, when the LegiOator or
Sovereign declares him to be the Author of them,
and at the fame Time decrees
%
that the ordinary
EfFefts of fuch Adions fhall redound on him, or
fhall be conceiv'd as inherent in him. But the lat-
ter Kind of Aftions are then faid to be imputed,
when he, who without being bound by any Ne-
ceffity, hath exercis'd them for the Ufe and Bene-
fit of another Man, doth fignify, that he under-
took fuch an Aftion for the other Man's fake, and
out of an Intention to oblige him. The latter
Senfe of the Word Imputatio is moft fi'equent in
Claffick Authors, and the former more in Ufewith
the Divines and Moralifts. But there is between
them this manifeft Difference, the former tends
from the Legiflator or Sovereign toward the A-
gent, but the latter proceeds from the Agent, and
refts in the Perfon,for whofe Sake or Ufe the Ac-
tion was perform'd.
II. The former Kind of /if/>/<//o is fubdivided
into Imputation
of
Favour, and Imputation
of
Debt.
Imputation
of
Favour is when a Man, out of pure
Benevolence, derives upon another the Effefts of
an Action perform'd by a third Perfon
j
which Ef-
fefts the fecond Party had no Right to, without
theGrantof the firft. Or, when one, out of free
Kindnefs makes a larger Efteb redound to the Per-
former of a certain Aftion, than the Aftion would
otherwife of itfelf have produc'd. But this laft In-
ftance will hold good in Matters of Reward on-
ly ', not in Matters of Punifhment. For, as fuch
is the Nature of good Things, that they may be
given to another gratis, without any Colour or
Condition} fo, if a Man is not willing to confer
a good Thing on another, by the Name of a pure
Gratuity, he may lawfully do it under the Notion
of rewarding him for fome imputed Aftion, which
either did not otherwife belong to him, or could
not have given him a Right of demanding fuch a
Benefit. But, on the other hand, common Rea-
fon will not allow me, on the fame Pretence, to
derive on another the Effe6ts of an evil Aftion,
which he is not really guilty of, and without
the Imputation of which, thcfe Effefts would not
follow his natural State and Condition. And
therefore 'tis very incongruous and abfurd, that
either for a Fault purely another's, I Ihould have
thofe Things taken from me, which Nature gives
every Man, on the very Account of his being a
Man; or that, under the fune Colour, fuchThings
fhould be impos'd on mc, as Nature, by an Indul-
gence univerftl to all Mankind, hath forbidden
us to fuffer without Reafon.
A Prince, for Ex-
ample, may impute the Father's
Merits to a Son
not illuftrious by his own
Atchievements
j and
may, on the Account of thofe Merits, load him
Avith Honours not otherwife his Due. But topu-
nifh the Innocent for the Father's Crime, is (fth&ly
fpeaking) unreafonable
^
. This indeed may hap-
pen, that the Father's Fault fliall be the Occalion
of not conferring on the Son, or of taking from
him, thofe Things which he was neither to re-
ceive nor to retain, but under certain Conditions.
But a Perfon thus dealt with, cannot be faid
to fuffer an Evil, which his natural State would
otherwife have made him a Stranger to. For
Nature, in this Cafe, gave no Security to the
Children that they fliould certainly poffefs the Pa-
rents Goods, or that they lliould be admitted
to
the like Pofts of Honour : But their Right to thofe
Goods, or thofe Honours, proceeded on thefe Con-
ditions and Provifo's, that the Parents fhould de-
liver them down fate and untainted, and fliould
not fall under fuch and fuch Penalties b\' their
Crimes. Nor can he, by any Means, be faid to
be in a worfe Condition than human Nature ad-
mits or allows, who having no paternal Inheri-
tance, is forced to work out his Fortunes by his
own Induftry.
It is juft, likewifc, fo fiir to proceed againft in-
nocent Children upon Account of their Parents
Demerits, as to oblige them to quit the Kingdom
or State. For no Man hath a Right from Nature
of living in this or that Territory
j but 3
every
one attains to fuch a Right by fome A61: of his
own, or of other Men : And it may be a Condi-
tion of keeping this Right, that he fhall lofe it in
cafe his Parents are found guilty of fome particu-
lar and high Offences. It is not repugnant to
Reafon, that the Poffcfiion of a Right fiiould
depend on contingent Terms. Though, that the
Laws of fome Countries arc too rigorous and
fevere in this Point, no Man can pretend to de-
III. Imputation
of
Debt confiflsin this, that thofe
Pcrfons, whofe Intcrett it concerns that an Aftion
be done or not done, do declare that the fiiid Ac-
tion belongs to the Agent, and that the Effe6t af^
fign'd to that Action fhall redound or fill upon him.
Hence, if in any Law a certain Reward be decreed
to fuch or fuch a good Action, fo foon as the So-
vereign, or the Guardian of the Laws flial! undcr-
ftandthat particular Ation to have been perform'd
by any Man, 'tis manifeft, that the Man hath im-
mediately a Right of demanding the promis'd Re-
ward. But when a Man is enjoin'd to do a Thing,
folely by the Authority of the Commander, and
without any fuch Propofal of a Reward, he ought
to reft fatisfied with the bare Approbation of his
Superior, and to efteem it a very fufficient Recora-
pence, that he hath avoided his Difplcafure, which
would neceffarily have follow'd upon Default. On
the other Side, when an ill Aftion hath been com-
mitted, fo foon as the Author of it is difcovcr'd,
he hath Reafon to fear the Execution of the legal
Penalty.
As to inferior Perfons, to whom neither the
Mr. Bare. NO TE S
I.
on Chap. ix. .
* That IS to fay, adjudging to him the Rewards, and decreeing to him the Punilhments infiifted by the Law, with all
their Confequences,
. 12. thcDiflinftions which the civil Lawyers make ia treating up-
Favoiirable. and,
3,
Mixt. But here he treats only of Things ad-
.
II. 'The Author will explain, Lil^.v. Ch. xi'i.
on Bargains and Laws, of Things, i. Odious. 2
vantagious and difadvantagious.
* See what is faid, Li!^. viii. C^. iii.
.31.
See iit. viii. Ch.xi.
.0,7. following.
Guardianfhip,
Chap.
IX.
Of
the Imputation
of
moral
Actions.
Guai'dianfliip,
nor the Execution of the Laws do
belon'T, if they either approve a good Aftion, or
reprehend a bad one, their Judgment can affeft
only the Credit and Character of the Agent. Ac-
cording to that elegant Saying of Diodorus Siculus
', Praife is a kind
of
Rezvard
of
Virtue putting us
to no Charges, and Difpraife is a Punijhment
of
Vice
inflicting no real IVoiind.
It is farther to be obferv'd, that when the Inte-
reft of many Perfons is concern'd in the doing or
the not doing of an A6lion, if one of thofe Per-
fons fhould forgive and not impute it to the Agent,
he cannot by this Means abate any thing of the
Right of the others, which he hath no Power to
controul. Thus, if a Man hath done me an In-
jury by an illegal Fat, I may forgive him for my
own Part and Concern , but at the fome Time I
do not in the leaft derogate from the jult Preten-
fions of the Publick, and of the Sovereign Autho-
rity. And thus too the Pardon which God Al-
mighty is picas'd tovouchfafe to repenting Sinners,
doth not at all impair or hinder the Proceedings of
human Judicature. But when all the Perfons
whom the doing or the not doing of a thing con-
cerns, agree that they will not impute it, in fuch a
Cafe the Deed is conceiv'd to be Null and Void as
to all moral Effedts. Now the Perfons concern'd
in a Thing's being done or not done, arc cither
the Objefts or the Direlors of the Aftion
;
that
is, thofe toAvards whom the Aftion is perform'd,
and to whom it brings either Good or Evil, and
thofe who have a jult Power of guiding and fu-
pcrvifing fuch an Aftion. For which realbn, if,
in Cafe of an Injury, the Deed be forgiven by the
Perfon to whom it was offer'd, by the civil Ma-
giftrate, and by God Almighty, in moral Efti-
mationitlhall be fuppos'd undone, and confequent-
ly fhall be attended with no ill EfFet.
IV. Very different from the Imputation of
which we have been fpeaking, is that by which
the Agent is faid to impute an A6bion, which he
might have omitted, to the Party for whofe Sake
and Ufe he perform'd it. A Man who hath cx-
ntly fulfiU'd the Command of his Superior, may
indeed expeft the Approbation of his Performance,
as from all others, fo efpecially from him who en-
ioin'd it. But he cannot lay claim to any farther
"Reward, unlefs fuch as is exprefly promis'd in the
Law. For the ftme Reafon, no Man can de-
mand that it fhould be imputed to him, in order to
the giving him any Right, that he hath abftain'd
from a bad Ai-ion, forbidden by the Laws, or by
any Command of his Superior
;
but he muft be
fatisfied that his Obedience hath pleas'd him who
requir'd it. For fince upon afting contrary to the
Law, he would have jullly incurr'd a confiderable
Evil, to efcape fuch a Punifliment mull pafs with
him for a Reward. Hence in Seneca's Controverjies,
Lib. iv. Controv. vii. when a Man, who being ta-
93
ken in Adultery by a Tyrant,
had forc'd the Sword
out of his Hand and kill'cl him,
defn'd a Gratifica-
tion from the State, he is put off with this
Rebuke,
imputat nobis quod dcprehcnfus in adulterio
mcrinoluit.
He reckons ive are indebted to him, bccaufe
being
taken
in Adultery he had the Senfe to faie his oivn
Life : And
"
Tulfy, in his fecond Philippic, denies
himfelf
to
have any Obligations to Antony upon account
of
his not being murder'd by him : Wherelies the Kind-
nefs to me (fays he) in your keeping your
[elf from.
fo
horrid a Vi'llany ? Others maintain the Reafon-
ablenefs of our prefent Aflertion from this Topick,
that ftie Omiflions of ill Actions are purely mn
Entia, and confequently can have no pofitive Af-
fetions or Properties. Tho' to fuch an Argument
it might perhaps be anfwer'd, That even thefe O-
miffions may, in moral Account, pafs for Entities,
as they are the real andaftual Reftriftions and Con-
finements of our natural Powers.
But now, if for the fake of another Man, I do
what I might rightly and properly have omitted,
or omit what I might fairly and conveniently have
done, it is highly reafonable, that I fliould impute
my Service to himj or, that 1 fhould, by virtue
of my Right, demand of him to acknowledge my
Kindnefs, and his own Obligation, according to
the Quality and Condition of it. This Imputation
cannot rightly be laid, unlefs there was in the
Ai:or a real Intention of procuring forae Good to
the other Man
;
and in the Receiver an exprefs,
or, at leaft, a prefumptive Confent to admit it.
For no Man can impute or reckon to us a Service
forc'd upon us againft our Will : And it would be
a much higher Degree of Impudence, to charge
fuch a Faft to us for a Kindnets, as was perform'd
either without any Regard to our Benefit, or per-
haps with a Defign to hurt us. Thus he muit be
extreamly fooli{h, who would defire a Reward
from a Man whom he
'
had reltoi 'd to Health by
breaking an Impofthume, othcrwife incurable,
whilft he intended to give him a mortal Stab. Yet
"MariusCelfus, in Tacitus^, when he was brought
before Otho as one of Galba's Servants and Con-
fidents, immediately confelling his Loyalty to his
old Mafter, propos'd it as an Example, how faith-
fi.l1 he would be to the new Emperor
;
and thus
reckon'd he had already oblig'd Otho by flicking
refolutely to Galba. And thus Eudoxia, when fhe
was married to the Emperor T'heodofius, fent for
her Brothers, by whom file had been formerly ex-
pell'd her Father's Houfe
;
and was fo far from
refenting their Injury, that fhe rather paid them
Thanks, as the Authors of her Promotion : Since
unlefs fhe had been driven from Home, fhe had
nfever feen Conflantinople ".
When the Parties concern'd and interefled do
agree in defining the Rate at which a Thing fhall
be rckon'd or imputed, in this Cafe a Covenant
intervenes, expreflxng how far, or to what
Value
*
See Lukexvii.
9^
10.
b
Hijl. Lib. iv.
' Zoaar. Tom.Ui. Add Gen..\lv. 5. Lib.x.v.
p ''iaei 'WaflAov asftrSij ei^xTrcciiif, i St ^oyci; ri/JiiUfiii (puuXornTH <" ^Mym.
. iii. * D'lodorus's Words are, sViv
Jn Excerpt.
Pierefc.
*
See tib.\\\i. Ch.'w.
. iG. following.
. iv.
Tiiis Example had been better plac'd a little lower, where the Author fpeaks of thofe who do fonae SerYi<;e
Without any fuch Defign, and by Confequcnce have fome other Motive for their Aftions.
'
Tul\f% Words are, g/^/e antem htneficium eft,
quod te abft'muerh nefario fcelere
> Philip. 2.
Ch. in.
3 See T//y,
DeXat.Deor. Lib. iii. Ch.xxwiii. and Plutarch deCafienda ex Inim.
Utilit.
^
4 Tacinis'i
Words are,
Celfus conftanter fer-vau irga. Galbam fidei mmm (onfejfu!.
exmflum ultrt mfutavit, Hiftor.'
Lib. i. Ch. l.v.\i.
Kumb. 2.
the
Of
the Imputation
of
moral Adlions.
Book I,
P4
the Imputation
fhall extend, and beyond which jc
fhall not reach in any Bufinefs or Tranfaftion
'.
For Merit (as Mr. Hohhes
"
obfei-ves) prefuppofeth a
Right^ and implies, "that the 'thing deferv'd is due
by Promife.
V. Hence 'tis eafy to gather what is the Force
of Merit^ or what Ations. are properly meritori-
ous, which fome Men would vainly
fet
to the Ac-
count
of
God himfelf. Now the main Spring of
all Merit is the Performance of a Work which
we did not owe : or, which the Perfon towards
whom it is exercis'd
,
had no Right of requiring
from us. For he that performs a Thing which he
lay under a fall and perfel Obligation of doing,
only difchargeth his neceffary Duty, and lays no
Foundation for any confequent Merit. M. Seme.
Cont. Lib. i. Ch. viii.
'
Give me leave to perform
fome Service to my Country^ which may properly be a
Piece
of
Merit : What I have hitherto done in the
common Courfe of
Arms^ is not onving to 7ne^ but to
the Laws. Julius
Capitolinus, in his Life of Anto-
ninus Pius, reciting the Reafon of the Emperor's
obtaining that Title, from lending his Hand to
fupport his antient Father-in-Law, in the Prefence
of the Senate adds, fhis Aflion was really no great
Argument
of
Piety : Since the Debt we owe our Pa-
rents is fuch, as rather denominates a Man impious
if
he neglects, than pious
if
he pays-'. Neither is
it fair to impute a Thing which we do not owe to
a Perfon againft his Confent
;
and much lefs, if
our doing of fuch a Thing did not turn to his
Benefit. Whence it is clearly apparent, that no
Man can pretend to any Merit with Reference to
Almighty God, ever, tho' it were poffible for
him to pay a full Obedience to all the Divine Laws.
And that, therefore, God cannot any other way
become a Debtor to mortal Men, but upon ac-
count of his free Promife, the Breach of which
would be repugnant to his
'
Goodnefs ; not that
any Right., properly fo call'd, is thence deriv'd to
us. Indeed no" Actions enjoin'd by Virtue of a
fupreme Authority, do produce Merit towards the
Enjoiner. For tho' both the Sovereign of Heaven,
and the infcriov Rulers of the Earth, are wont
frequently to confer certain good Things on thofe
who comply with their Commands, in order to
the encouraging and exciting their Obedience
;
yet to the Payment of thefe good Things they
are not bound by the Merits of the Agent, or as
in the manner of Covenants
j
but by their own
free Offer aiid Promife : And therefore they can-
not be fo properly call'd Rewards as Gratuities in
the ftriaell Senfe of that Word ^
'
Comp. Matth. xv. 13, 14.
- .^,^,.
*--"
''enec.de Benificils, ii^. iii, Ch. xxi, xxii dAdd
b
Lev'iath. Cli. x
,
But notwithftanding all this, if the Legiflator
do expreOy declare, that upon the Performance
of fuch or fuch an A.ftion, the Agent fliall have
a Right of demanding fuch a Reward; there's no
doubt to be made, but he may fairly and jultly re-
quire it. But the bare Omiffion of forbidden A6ti-
ons is utterly unable to produce any Merit, or any
Matter for Boafting or for Praife. Philofirat. ds
Fit. ApoUon. 7'yan. Lib. vi. Ch. i.
'^
It is not an
Al
of Juflice
to abjlain from
Injujiice, nor an Ai
of
Prudence to have decrm''d a foolifh Refolutlon^
nor
of
Valour not to defert one''s Colours, nor
of
'Tem-
perance not to fall
into the bafe Effeminacy
of
th
Medes j
7ior will a hare negative Goodnefs entitle you
to any Commendation : When we efcape Punifhment^
but yet do nothing worthy
of
Honour and Reward^
fuch an Indifference
cannot reafonably be call'd Vir-
tue. Add Luke xviii. 11. Ammian.
Marccll.
Lib. XXX. Ch. xi. To forbear Plunder and Rapine,
is a
falfe
Foundation for
Praife.
It remains then, that the only Aftions whereby
we cannot obtain Merit towards other Men, are
fuch as we do not owe them
;
at leaft, not by a
full and perfect Obligation : Whether natural Rea-
fory either commands or advifeth them in general,
leaving the Application of them to particular Pcr-
fons in our Power
>
or whether they are only not
enjoin'd by the civil Laws. For whatfoever I
owe another as a full and proper Debt, to that he
hath already a Right, and therefore when I pay
fuch a Due, I do not, properly fpeaking,
part
with any thing which I have then a Right of re-
taining or of otherwife applying, becaufe upon
denying and keeping it back, I lliould bring a real
Injury and Damage on the Perfon to whom I
ftand engag'd. And therefore fince Things which
I owe in this Manner, do already belong, in fome
refpet, to another Perfon, and I have no longer
a Power to difpofe of them as I pleafe, they can-
not be proper Matter for the founding of Merit.
But when I perform any thing towards another
Man, which I was not bounti to pay by any per-
feSi Obligation, fuch a thing really pailing from
me,
and accruing to him, leaveth in me either a pcr-
feft or an imperfect Right of receiving an equiva-
lent Return. And this is properly Merit ^y
the
Retribution or Payment of which, when it is de-
termin'd by exprefs Covenant, we call Wages :
But when as to the Manner, the Time, and the
Quantity, it is left to the Equity of the other
Party, it bears the Name of i?ewar^. Now upon
fuch Accounts and Confiderations we may receive
four Kinds of Things ,
'
Corporeal , Incorpo-
'
Euripides Rhef. Rewarded Virtue gives a double
Joy.
. V.
'
The Latin of Seneca is this, Sine me aliquod meritum in fatriam conferfc, adhuc militia mea Legis munus
eft.
And Julius Capitolinui's^^owh are, S}uod qaidem mn (atis magnu pietatis
eft
argumentumy quum impius fit
magis, qui
ifta
non faciat, quatn pins, qui deiitum reddat, Ch. ii.
*
The Author might have added here, the ^57ords which an antient Rhetorician malces his Son fpeak, when hfs
rather would hinder him from going to War the fourth Time, to fecure him from the Danger. Sine me aliqutd meri-
tum in patriam conferre, adhuc tnilitia mea Legis munus
eft,
Seneca Controv. Lib. i. Contr. 8. Suffer me to do a merito-
rious Service to my Country, for as yet I have done no more in War than I was obhged to do by the Law.
3 Or rather his Veracity ;
which this Author himfelf mentions in his Elements of Univerf. Junfpr. and therefore un-
fitly omits it here. For it is properly out of his Goodnefs that God at firfl promifes a Reward to our imperfcft Per-
formance-, but his Veracity, that he performs fuch Promife. See Kehem.ix. 8. 33.
ijahni.9. where he is called
Juft,
who departs not from the Truth, neither in his Difcourfe nor Deportment.
*
The Gree':, Md
Y>
ti'iai hKnivnJrf.v, to
f/,\
a,^iKiiiisTi y> (p^itixric, to /*i cuciralt ti t^ii/fJiiiS^' 'uti cu^etia, to
fn
Tiii-xii T>i Ta|i- grt <ru<pe6n]ni, to ///i ili t X /juci^an i/ji/Trhrir nn a^m ixMni, to /*/) xx ^ami^, vikv '/< i> Tt/*J4 T >^
Sec the Explication
of this Diftinftion of the Lawyers, Lib, iv. Ch, ix.
5. 7.
real.
C H A
p. IX.
Of
the Imputation
of
Moral
A6l:ionsv
S5
real
Moral, and
"
notional. Of the firft Sort are,
Money,
Land, i^c. Of the fccond, the Grant of
Privileges
and Immunities : Of the third, Honours
and
Dignities: Of the laft. Statues, Infcriptions,
Crowns,
and the like Tokens and Teftimonies of
Worth. Add. Montaigne's
Ejff'.
L'lkn. Cb.v'u.
And thus, as hath been fhevvn, Merit arifeth
fromthofe Aftionswhichwedo not owe toothers;
and
chiefly as they are uleful and beneficial to
them.
On the contrary, from evil Actions, efpe-
cially fuch as damage or injure others, arifeth De-
merit; by Virtue of which a Man is oblig'd to
make
Satisfaction for the Harm he hath done: But
in general, all evil Adions produce a Guilt, by
which the Agent is fuppos'd liable to undergo
fome
Penalty : Which Point we fhall hereafter
find more Room to explain. See Lib. vm. Ch.W'i.
VI. As theaftual applying oi Imputation caufeth
theEfTeftsof moral Aftionsto exift; fotheceafing,
and as it were the recalling of it, doth diflblvc and
cxtinguifh thofe EfFefts. And as to this Matter,
the Cafe is very near the fame in good A6tions and
in evil. For both good and evil Aftions, whilll
they zrtfuch^ or fo long as they are enjoin'd or pro-
hibited by the Laws, muft neccflarily be attended
with linputaiion; at lead
'
in the firft and plain
Import of that Term. But when a Law isrepeal'd,
the Adtion about which it was concern'd can no
longer be imputed. The Imputation of an Alion
not properly due, he alone can remit, whofe In-
teieft it is that theEfFedtor Coniequence of the A-
lion fliould be made good. Therefore if he who
hath perform'daWork remits the Imputation, the
Wages otherwife due cannot on any account be
demanded. But to make this Releafement orRe-
miffion, is not in the Power of the Perfon for
whom the Work was done"; it being the Credi-
tor'sPart to forgive, and not the Debtor's. So like-
wife to take off the Imputation of an ill Aftion, as
to any Force and Efficacy, belongs to thofe whofe
Intereft it is that fuch an Aftion be attended with
itsdueEffefts; that is, tothe Party injur'd, andto
the Maker and Guardian of the Law, not to the
Author of the Faft.
The Civilians reduce the chief W'ays by which
Crimes are cancell'd or extinguifli'd in Human
Courts, to thefe Five. Firft, when the Punifti-
ment defin'd by the Law fliall be compleatly un-
dergone : For no Man is punifti'd twice, and with
equal Severity for the fame individual Fault.
Though many Punifhments indeed leave a kind
'
and frequently of lafting Stain behind them
after the Completion of a corporal Punifliment,
moral Puniftiment or Infamy,
with its fcandalous
Marks, continues. Secondly, he
whom the
Judges
have acquitted, pafleth in" Human
Efteem
for'^ui
innocent Perfon. The third V/ay is,
when
the
Delinquent dies. Tho' fomctimes in
extraordinary-
Crimes, for a Terror to others.
Severities
are
ihewn on the Body, the Goods, and the
Memory
of Wretches after they are dead. Fourthly
by
Length of Time Crimes are fo far taken
away,
as
that the Author cannot be afterwards try'd on the
iame Account. Sencc.Oedip'.
Laterefcmpcr patcre^ quod latu'it din. V.
825.
What long hath lain conceal'd fliould ever lie.
Tho' Lyfias (Orat xii.) denies that a Crime can
be blotted out by any Space of Years. The
fifth and laft Way is the procuring of Pardon for
the Offence from the fovereign Power
*.
As the Effe6ts of an evil Aftion do fo long lie
dormant, as the Aftion is either conceal'd,
or
throughly diffcmbled or pardon"d (as it were) be-
forehand : So when once thefe Effecls have bro-
ken out in Publick, their moral Part may indeed
be effac'd, but not their
phyfical. For what is
once done, cannot in a phyfical or natural Senfe
be render'd undone; but it may be fo order'd, as
that it fliall no longer have any moral Effe<5t in
civil Life. Thus a Man who hath been whipp'd
for a Mifdemeanor, muft ftill keep the Scars and
Signs in his Back, tho' all the Difgrace and Scan-
dal of the Punifhment may be remov'd by a De-
cree of the Government. And when the Imputa-
tion is taken off, the Alion is to all Intents and
Purpofes, no more than if it had never been
done '.
We need onlyaddby way of Remark, that thofe
Authors are ftrangcly overfeen, who in order to
the taking away the Guilt of an evil Aftion, befides
the Non-imputation, or the Forgivenefs of it, re-
quire the Inhifion of fome contrary Quality, or of
the Habit of Juftice and Honefty: In the fame
manner, as by plaiftering over a Wall we rid it of
the Spots that were in it before ; and as we drive
away an ill Smell by burning Frankincenfe in
a
Room. Which Miftake was occafion'd by their
Ignorance of moral Things, and becaufe they
imagin'd that moral Qualities were produc'd and
deftroy'din the fame way as phyfical : The Abfur-
dity of which Notion is plain enough from what
we have before deliver'd.
' Vic). Sueton. Claud. Ch. Xvi. ^ All which are treated
of at large, by Anton. Mattlixus de Crimin. ad Lib. xlviii. D, Tit, xi.v.
^
And thus iveare to under/land thofe Sentences
of
Ovid de Pont. Lib. i. El. i.
Mors Jaciet cert}, ne Jim citm venerit exul,
Ke non peccarim mors quoque non facict.
De.itli's kind Rele.ife may end my b.inifh'd St.ite.
My Sin will live, ,Tnd mock the Power of F.ite.
hiirli Thoughts of ourfelvcs in our Minds,
E/lque pati fccnam quam meruiffe minus.
'Tis lefs to feci, than to deferve our Doom,''
Pxna poteft demi, culpa ferennis erit.
The Penalty may ceafe, but ne'er the Crime.
i Our Author undcrflands by this a tiling, that ferves only to raife fome
and fignifics fometliing done tor that by human Inftitution.
. vi. I
To underftand this, we are to know, that this Author (in his Elements
of Univcrf. Jurifpr. p. 357.)
divides
Imputation into Simple and Efficacious : Simple Imputation con(ifts in fimply approving or difapproving an Action,
fo tar as there redounds no EfFeft from it to the Agent. And this Sort ot Imputation may be made indifferently by
any, whether he hath any Intereft or no in theAftion that is done, or not done. An Efficacious Imputation is that
which produces fome Effeft, with Relation to the Agent ; and this belongs to thofe, whofe Intereft it is, that the Afti-
on be done or not.
- Our Author here quotes the Words of Seneca's Oedipus, where an Old Man adyifes Oedipus to keep that always fe-
cret, which had long lain hid. This can hardly be thought to our Author's Purpofe : For, it plainly appears by what
follows, and is fpokcn by the fame Old Man, that he intends nothing about the Imputation of Crimes, for (thus he
fays) Supe
eruemis -Veritas patuit malo. v. 82,7. they who make fuch Difcoverics, often end.image th.emfelves by lay-
ing open th
Truth.
O F
j>5
O F T H E
LAW
of
NATURE
AND
NATIONS
BOOK II.
CHAP. I.
// is not agreeable to the Nature
of
Man to live without Laws,
The Contents.
I. Whether a Law may he impofed on Man, is
doubtful.
II. What Freedom
of
Willis.
III. Whatfort of
Freedom
of
Will is in God.
IV. What is the Freedom
of
Beafl5.
I.
^=^^^^MSS^iA
AV I N G in the preceding
Book explain'd the Condition
of moral Things in general,
together with the moft fre-
quent Ufcs of the Common
Terms (which Notices, if in-
fcrted otherwife, and only as
Occafion ferv'd, would have
interrupted us in our Bufinefs, and broken the Se-
ries of our Undertaking) we come now to fall more
direftly on our main Defign >
and the firft Enquiry
we are here to make, is, whether it would be con-
venient or not for Men to pafs their Lives without
theRelbaintof anyLaw. Whence it will evidently
appear, why the All-wife Creator hath not inverted
them with fuch a wild Liberty, as fhould impowcr
them to at merely as rhey lilt, and as their wan-
dring Inchnations lead them ;
without being under
the Reilraint of any Rule,
'
Neceffity, or Law.
For fincc God Almighty has been pleas'd to endue
Man with a Will (chat is, with a Power working
by a kind of internal Impulfc, and enabling h'mto
incline towards fuch things as appear agreeable to
him, and to turn from fuch things as fecm inconve-
nient or unpleafmt) and with fuch a Will as can-
not be compell'd , a Doubt may be rais'd, whether
it did not become the Divine Goodnefs to allow
V. Man too Noble a Creature to be allowed fuch a
Freedom.
VI. T'he Corruption
offuch a Freedom.
viT. T'he Fariety
of
Mens Tempers.
viii. Man's natural Wcaknefs and Rudenefs,
him the full Range of this flexible Faculty, with-
out any Limit or Impediment. For to what Pur-
pofe, fome will fay, did God firft make us intirely
free to all Things, and afterwards confine us to
certain Bounds and Rules? And as the Motion of
our Joints is render'd ufelefs by the Reftraint of
Chains and Fetters
;
fo may the Liberty of the
Will feem vain and of no manner of ufe, if we can
incline to many things which mull of Neccfllty
be forborn, and if we can beaverfe to many things,
which we muft as neceflarily purfue and under-
take.
n. In tracing this Point to its proper Spring,
we think it convenient firit of all tofhew, that an
abfolutc Liberty would be fo far from being ufe-
ful, that indeed it would be deftruftive to human
Nature ;
and that therefore the binding and re-
ftraining it with Laws is highly conducive to the
Good, and to the Safety of Mankind. And this
Confideration rightly purfued, will at the lame
time difcovcr what Scope may be fairly indulg'd,
and how far the Reins may be given to our Free-
dom. Here then we mull know, that Liberty in
general implies, an internal Faculty
of
doing and
of
omitting^ things according to the DireSlion
of
our
Judg'
mcni. When we call it
'
a Faculty or Povv^cr, we
intimate, that the Pcrfon ro whom this Liberty is
Mr. B A K B. NOTES on Chap. I.
i.
. i.
'
Oiu- Autlior Joes not trc^t liei-e oi a pliyfic.il, but mor.il Necellity, fuch .is is explaiu'dj Lii. i. Chap. vJ.
5- 14. ad jin, and Chaf. vii.
J.
2. Neceffity is no more th.in an Oblig.nion.
. ii.
Our Author fays only, A Faculty, which Term impHes no more than a Power oi AiSting, or Moving, crc.
for there are Faculties purely Paflive, and therefore 1 have added this Definition ot a Faculty to do, or not, that we
are to underftand by it, a Power of Aftiiig or Moving, not only it felf, but coinmur.icatin^ a Motion to other Things,
snd
modelling them after a certain Manner,
3 applied
C H A P. I. that hejhould live without
Law.
97
applied, is Mafter of fufficient Strength for many
Performances,
and has a Force and Ability not on-
ly to move himfelf, but to imprint Motion on
other Things, and to afl'eft them in a certain Man-
ner. We term this Faculty internal^ to fignify
that its Force and its Motion arife from an inward
Pi'nciple, contrary to that outward and violent
Impulfc, which is the Caufe of Movement, rather
in a Log than in a Man. Laftly, we add accord-
ing to the DircBion
of
our Judgment^ to hint tliat
the Motion is not rais'd at a Venture, or by fome
blind kind of Force
i
but that the Agent isfuppos'd,
in fome Degree at leall, to have had a Knowledge
of the Objeft, and to have determin'd himfelf to
Aftion after fome fort of Dehberation, fo that the
immediate Rcafon of his afting fhall be, becaufe
he was pleas'd to aft. At the fame Tmie it will
beunderftood, that all Rubsand Hinderances,which
may
^
either prevent the Motion, or turn it ano-
ther Way, ought to be fuppos'd abfent, when we
llate the Notion of Liberty in Perfebion and with-
out Alloy.
III. Matters being thus fettled, if we call our
Eyes over the univerial Frame of Things, wefhall
find that many have no Liberty at all, fuch as are
all inanimate and vegetative Creatures. Others en-
joy feveral Kinds of Liberty, and in feveral De-
grees. An univerfal Liberty,void of all Hinderance
and of all Defet, is applicable only to God Al-
mighty ;
this is conceiv'd as the moll; noble Attri-
bute of his moft perfe6t Eflence, admitting no
Bounds or Circumfcription, and intimately join'd
with Omnipotence. And therefore, the Reafon
why God doth not do
fome Things, or why
he doth not always do
'
all Things, is not to be
fetch'd from the Deficience of his Liberty, but
from his own abfolute Pleafure \ So likewife
when we fay, he cannot do all Things, this does
not proceed from any outward Impediment, whe-
ther
'
natural, or moral
;
but from his own Inten-
tion and Defign, which we Mortals endeavour to
conceive in Proportion to his Greatnefs and his
Excellency. In which Senfe we are to interpret
that common Saying, That Go d is a Law to him-
felf.
Thus too the fuftice which we afcribe to
God, is not to be fuppos'd to bear a Regard to
any Obligation, or to any Right in another Per-
fon, as the Natureof human Jufticeneceflarily im-
plies. But in as much as he has flicwn, both by
his
Works and by his Revelations, that fuch a
Manner of ating is fuitable to his moft compleat
Nature,
hence wc come to exprefs it by the fame
Term which denotes our own equitable Dealings
towards other Men. Thus the Reafon why Go d's
Promifcs do not fail, is not becaufe his Liberty
is reftrain'd by any Obligation arifing from his
Promifc j
but becaufe it is agreeable to the divine
Excellency to let us not
expcd in vain, what he
commands us to expeftj
or
becaufe to violate a
Promife, implies fome kind of
Imperfcaion,
from
which the iupreme Nature is
moll
immenfely
re-
mov'd. Upon which account,
we
Men do not
challenge the divine Promifcs as of Right
belong-
ing to us, but receive them with
Humility
and
Reverence, as Gratuities proceeding
from
God's
free Pleafure. For 'tis not here as in human
Pro-
mifes, where there lies an Obligation to
Payment
where the Promife turns into a Debt, and
what
was before free, is brought under
aNeceffity
: But
thofe Things which God performs upon
Promife
do as fully retain the Nature of Gifts and
Benefits'
as thofe Things which he difpenfes
without
any
fuch feeming
Engagement. Thus may wc weak
Mortals faintly repiefent the divine
Liberty;
but
that alone which we can determine with Certainty
about it is, that it furpaflcs, in an infinite
Man-
ner,
both our Notion and our Condition
^
IV. Brute Creatures which areplac'd
below our
Degree of Being, do however eiv'oy a Liberty
proper to their Nature and State.
But this Liber-
ty cannot be otherwife than very
ignoble, fince the
Power of thefe Animals is confin'd to iiich nar.ow
Bounds, and fi;Kc fuch is the Dulnefs of thei-Sen-
fes, and fuch the Lownefs of their Appetite, that
they are concern'd about very few O'bjefts, and
regard even thofe but very
negligently
and fuper-
ficially;
nor are excited by any Thing but what
IS
extremely grofs and perpetually
obvious,
and
tends to the Service of their Belly.
As to other
Matters, they have noCuftom, no Law,
noRi^ht
to bind them, in tranfafting
either with one an-
other
,
or with Mankind.
Amongft
a few of
them there is fome Semblance of Marriage,
but of
fuch as is obferv'd in the bare Aft of Conjundion,
and in fome Shew of Love or Liking, not in any
Stri(lnefs of ferious and conftant Fidelity.
Moft
of them, as foon as they have fitisfied their luftful
Defires, retain no farther Mark of Love, no Senfe
of
Shame, no Regard of
Offspring.
Some in-
deed are moft paffionately
fond of their Young,
but then their Kindnefs continues no longer
than
till they are able to provide for themfelvts.
Af-
ter this Period, all Love is loft and forgot on both
Sides; the Dams take no Care or Notice of their
Progeny, and the Progeny
do not flievv any
Gratitude, any Senfe of Debt or Duty to their
Dams. Thofe- Beafts which feed on Flefh,
tear
and
devour without Diftinftion,
whatever is a-
gieeable to their Palate; and many when they
fill out, pull one another in Pieces
without
Re-
gret. Being ignorant of the Laws of
Propriety,
whenever a Iharper Hunger than ordinary
pinches
them,
Ave may fee them fighting furioully for
the common Pafture or Prey; and what fome
See Pfalm cxv. 3.
Ephef. i. 11.
b
Add Cumberland Be Legg. Nat. Ch. vii.
. 6.
' There are, in gener.1l, two forts of Obftacles or Impediments, which hinder us from aftinf according to our
own Wills, the one phyfical, as Bonds, Fetters, Prifons, CT'ir. The other Moral, as a Bond,
L.iwt Governnient, Au-
thority, e^c. Elem. Jttr. Univerf.
p.
10.
.
III. '
For Example, doth not make feveral Moons to circulate round the Earth, as maybe feen to go round the
Planets of Jupiter and Saturn. Apolog'u Pufend. . 7.
'
As to create every Day new Kinds of inanimate Bodies or Animals, Ibid.
See Note
2. of
.
foregoing. When we fay that God can't do a Thing abfoUitely, as for Example, Lye, or be
worfe than his Word: for fince there is no Being fuperior to God, to lay any Obligation upon him, nor more
powertul than he, to hinder him from doing as he pleafes, or to conftrain him to abftam from certain Things, and
do others, the Inability which we attribute to God can
proceed from nothing but his own good Pleafure, and in-
finite Perfedlions, Ibid. See Chap. iii.
. 5,
6, followin".
,iv.
'
See Chap. iii. .2. following.
o have
98
It
is not agreeahle to the Nature
of
Man, Book II.
have laid up or feiz'd for their private Ufe, the
others make no Scruple to invade and to devour.
Nor is there among them any fuch Thing as E-
fteem, as Honour, as Command, as Prerogative,
unlefs fuch as is dcriv'd purely from Superiority
of
Strength. It mufl be confeft, that Likenefs of
Kind does produce in fome Creatures a Shew of
FriendiTiip and of Society. Hence many delight
to live in Herds, and thofe which are more fierce
than others, have fome Averfion to preying on
their own Kind. Thus Juvenal obferves, Sat xv.
ver.
ifp,
^c.
Parcit
Cognatis maculisfimilis fera : quando leoni
Fortior eripuit v'ttam Ico ? quo nemore unquam
Expiravtt aper majoris dentibus apri
^
Indica tigris agit rabidd cum T'igride pacem
Perpetuam: ftevU inter
fe
convenit urjis.
Beafts of one Kind from other each refrain:
No weaker Lion's by the ftronger flain
:
Nor from his larger Tusks the Foreft Boar
Commiflion takes his Brother Swine to gore.
Tyger with Tyger, Bear with Bear you'll find,
In Leagues ofFcnfive and defenfive join'd.
Mr. Tate.
But, not to (ay that there's (bmethingof a Poe-
tical Figure in thefc Expreflions, we may only take
notice, that this feeming Relation is but a vciy
weak Bond for a Lifting Friendlliip : fince 'tis im-
mediately broken whenever the Concerns of the
Belly intervene. Thus you fliall fee a Litter of
Puppies play very lovingly together, but throw a
Piece of Meat amongft them, and you breed a dan-
gerous and a general Qi^iarrel. The Reafon why
io.nie Creatures exercife a little Shadow of Duty,
Love, Faith, and Gratitude towards Men, is pure-
ly to be referr'd to Cuftom, and to their Defire of
being iupplicd with Food. If thefe Obftacles are
once remov'd, and if they find themfelves of fuf-
ficient Strength, Man himfelf cannot efcapc their
Violence, if he unhappily provokes them. The
Liberty of Brutes then is not reftrain'd by any in-
trinfical and moral Tie: Tho' their external Mo-
tions are often violently put under Confinement
by Men. Now if any one is fo curious as to en-
quire on what Account brute Creatures are al-
low'd fo unbounded a Freedom, the plain Rea-
fon feems to be, becaufe God Almighty has not
given them a Mind capable of the Knowledge
of Right and of Law. There was indeed no
Occafion to be fo veiy careful and exa6t in enfu-
ring the Safety and Prefervation of fuch Beings, as
are not only produced by Nature with fuch vaft
Fertility and with fo little Pains, but are likewiie
denied the Privilege of an immortal Soul
> and
whole Life confifts in nothing elfe, but in tlie cu-
rious and accurate Difpofition of the little Parts of
Matter, with the additional Benefit of Motion.
Hence Go d is pleas'd, in producing and in de-
ftroying thefe inferior Animals, to give us frequent
Inftances, and evident Tokens of his Power. Ano-
ther Reafon why Brutes had no need of the Re-
ftraint ofLaws, is, becaufe their Appetite is rais'd
by nothing elfe but by Hunger, or Thirll:, or by
falacious Defire, for their Satisfaftion in all which
Enjoyments Nature has made fuch large Provifion.
Neither is it likely, that their unlimited Way of
proceeding fiiould render them very hurtful and
deflruftive to Mankind, fince we are enabled, by
cur fuperior Strength and Cunning, to prevent a-
ny fuch unhappy Effects ^
V. Now why the great Creator fhould not in-
dulge us Men in fo lawlefs a Liberty, many Rea-
fons may be given, arifing both
'
from the primi-
tive and from the acceffory State and Condition of
human Nature. The Dignity of Man, and his
Excellency above all the other Parts of the animal
World, made it requifite that his Adions fhould
be fquar'd by fome Rule j
without which no Or-
der, no Decorum, no Beauty can be conceiv'd.
Hence it is his greateft Honour that he has obtain'd
an immortal Soul, endu'd with the Light of Un-
derflanding, with the Faculties of judging and of
choofing Things, and with an admirable Capacity
for Arts and Knowledge. On which account he
isjuftly term'd,
SanElius animal^ meniifq-y capaciui alta
Et quod dominari in catera
poJJ'et.
an Animal
blcft
'with Loftinefs of
Alind and with
Sanflity
of Reafon^ andfranidfor the Dominion and
Sovereignty
of
all the
reft
''.
Farther, That the Soul was defign'd by the All-
wife Creator for a much nobler End than to fcrvc
only as Salt to keep the Body frefh, may be ga-
ther'd fiom this Confideration, that the greateft
and moft fliining Part of its Faculties are fuch
as
contribute either little or nothing to the Pi eferva-
tion of the Body, which
*
might be fecur'd with-
out any fuch mighty Parade, without fo great and
pompous a Provifion. It's plain, that the Power
and the Aftivity of the rational Soul
' is chief-
ly exercis'd about fuch Things as belong *
to
the Woriliip of God, and to a Life
s
of So-
ciety and of Civility. And 'tis principally for
Add Charron
of IVifdom, B. i. Ch. xxxiv.
''
Solinus (cap. iii.) calls Man a Being whom Nature has
f
referr'd ti
all others in Excellency
of Senfe, and in Capacity
of Reafon.
.
V. ' We murt; uiiderftand by the Primitive i^tate, that in wliicli Man was when he came out of the Hands of his
Creator, confidereJ purely and barely as a Man, before he had any Ufe of his Faculties, where his accedbry St.ue
(fofl
fuperveniem) is that wherein he is left to himfelf, and confequently fuppofes the Ufe of his Faculties. The firft
is treated of in this Paragraph, and the other in the three following.
* This appears from the Example of fome Beafts which live a long Time, as Stags; and of fome Trees, as the
Oak, which continue a long Time, tho' they hive no Senfe. Cumberland, Chap. ii.
. 4.
' The Sagacity of our Mind confifts not in finding out what fort of Meats, Exercife, or Medicines are proper to
lengthen out our Lives here
;
for the moft able Phyficians and Philofophers have had but a very imperfeft and uncer-
tain Knowledge of thofe Things, ibid,
* See Chap. iii.
. 20. following. Note 2.
' Cicero obferved this, when he reckoned up the Advantages of Men above Beafls in thefe Matters, in thefe Words,
Eadem(]uc natura, vi rationis, hdminem conciliat homini ad Orationis
c
ad "vi'./i Societatem 1 Nee vero ilia parva vis na-
ture eji,
rationifque, quod unum hoc animal fentit, quid fit ordo, quid
ft
quod deceat, in fa^is, ditUfque qui modus, i. e.
Nature by the Force of Reafon renders Men fit for
Converfation Nor is this a fmall Force of Nature and
Reafon, that
Man only is fenfible what Order is, and how both Words and Aftions are to be moderated." Ve
Offif,
Lib. i. Chap. iy.
See alfo De Legibits, Lib. i. Chap. vii.
the
Chap.
L
that hejhould Jive zvithout
Law.
pp
the
Service
and
Furtherance of thefe Great Ends, In Man the God defcends,
and joys to find
that
it can
'
from known Things infer and ex-
The narrow Image of his
greater JVIind.
plain
thofe
which are Icfs known, that it can di-
Mr. Creech.
Icern
and
judge what is agreeable and what dila-
jrreeable to it ;
that it can form univcrfal Noti-
VI. Another Reafon why it was
inconvenient
ons by
Abllraftion from Singulars j
that it can by
to allow Man the fame extended Liberty
as Brutes,
proper Signs communicate its Notions to others,
'
was his prodigious Corruption and
Degeneracy
can form"inventions, can apprehend the Nature of
fo many Degrees beyond theirs. That we
charge
Numbers,
Weights, and Mcafures, and compare
him thus, no one will wonder, who has had the
them with one another
j
that it can perceive the
Curiofity to refled a little on the various Purfuits
Beauty and the Force of Order and Method
j
and Inclinations of Mankind. Bealts are folicitcd
that it can either raife, or rcprefs, or moderate
only by their Belly and by their Luft : And thea
AfFeftions ;
that it can hold in Memory an end-
their Luft has fome Shew of Temperance, pro-
lefs Compafs of Things, and call out, as it were
yoking them only at certain Times and Sealbns,
at its Beck, any Part of the Stock which it hasOc-
and being exercis'd not for empty and fuperfluous
cafion to ufe; that it can turn its Sight inward up-
Plcafure, but for Increafe and Propagation oftheir
onitfelf, recoUcft its own Dictates, and by them
Kind. OppianCyneg. Lib.ni.-v. i^i, lyz.
judge of its Aftions, whence arifcs the Force and
"the Authority of Confcience. Ofall thefe Powers 'Ov yzp 'rnn (i-^peo<ri v'/Lt^ yaarhp ore 7rAQ
and Abilities there would be very little Ufe, or
'Ei$ Aep/os ip'^afjihoiSTeXieivfiAoTriaiov spyov.
rather none at all , in a lawlefs, a brutal, and an
^
.
a-
unfociable Life \ Now the more Gifts G o d has Beafts in theirJoys a decent Temp'rance keep
;
bellow'd on Man , and the greater Inlargements Nor offer Love, when 'tis the Time for Sleep,
he has granted to his Wit and Mind, the more
b.afe and unfeemly would it be, that all thefe But the carnal DefiresofMen do neither obferve
noble Endowments fliould ruft for want of Cul- any fet Times for their Eruption ^ , nor are by
ture and Regulation, fhould be vainly fpent and any Means fo moderate in their Heat, as to make
fquander'd away without Ufe, without Order, and no farther Efforts than are necefTary for the Pre-
without Grace. Nor was it altogether in vain, fervation of human Species. Again, the Hunger
that God indued Man with a Mind apprchenfive of Beafts is eafily fat isfied with fuchFoodas Nature
of Accuracy and of Decency
;
but it was without has fpread in all Places for their Suftenance
?
nor
doubt intended , that he fhould fo employ the do their Meals ftand in need of the Formality of
Powers he had receiv'd, as to manifeft the Glory Furniture, or of the Incentives of Sauce. And
of his Creator, and to promote his own true Intercit
when they find this Appetite reliev'd and quieted,
and Happinels. The Heathen Poet was able to they put an End to their Buiinefs and their Care,
make flich an Inference as this :
(Nor are they very forwardly dilpos'd to Rage or
Mifchief
',
provided they are unprovok'd, and
^//i dtihitet hominem conjungere ccelo ? . that their two chiefDefires are at rcfl.) But now
Eximiam tiatura dcdit Ihiguamq; capaxq; the Food of Man muft not oiily fatisiy Iiis Belly,
Ingenium^'VQlHcremq; anifnum; qt'.em demq;inunHm but tickle his Palate *. Nature has taken care
Defcendit Deus atq; habita!
^
fcq; ipfe
requirit. that Beafts fhould have no need of other Cloath-
ing befides what fhe has given them. But Man
Then who can doubt that ^1/^^?/, the gloriousPride turns the Infirmity of his Nakedneis into anOcca-
Ofall, is nearer to the Skies alli'd ? fion of Vanity and Pride. Befides, do not Men
Nature in Mm capacious Souls has wrought, fioat in a whole Tide of Affedions and Defires,-
AndgiventhemVoiceexprefiiveoftheir Thought, utterly unknown to Beafts
.^
Covetoiifnefs , Am-
e Buddei
F.letnetita
Philofopbia praHici, Part ir. Ch. iii. where he is both particular and larire in fliewi'i^'hov
People mcorporatcd into
Society, are under a Nccellity of having Laws impofed upon them.
"
CHAP
I02
Of
the natural
State
of
Man.
B o
o k IL
CHAP. II.
Of
the natural State
^
Ma N.
The Contents.
i. Man's natural State diverjly confidered.
n. His Mifery.
lii. Its Laws and Rights.
IV. Iloe State
of
Nature qualified.
V. Whether it has an Inclination to Wdr.
VI. WfMifs, affirms
it., andhis Reafons are prodtic'd.
VII. Mens Relation one to another concludes the
Negative.
B
Suggeftion and Revelation
Addition of thefe Affiftances feems to put
I.
'W^
Y the natural State of Man in our pre-
fent Enquiry, we do not mean that
Condition which is
'
ultimately de-
fign'd him by
Nature, as the moft
perfect and the moft agreeable >
but fuch a State as
we may conceive Man to be plac'd in by his bare
Nativity, abftrafting from all the Rules and InlH-
tutions,' v/hethcr of human Invention, or of the
of Heaven j
for the
ano-
ther Face on Things, and to frame human
Life anew, by an exacter Model. By this
wide Exemption we do not only exclude all
the various Arts and Improvements, and the
univeifal Culture of Life, but efpecially civil Con-
junftions and Societies, by the introducing of
which Mankind was firft brought under the decent
Management of Order and Regularity. That wc
may be able to form clear and diftinft Notions of
this fuppos'd State, we will firft confider it in it-
felf.)
and examine efpecially what Rights and what
Inconveniences attend it; that is, what would
be the Condition of particular Men, if there were
no Arts or Inventions fet afoot, and no Com-
munities form'd and cftablifh'd in the World.
And then , fecondly , we will confider it in order
to other Men., whether in this Regard it bears the
Semblance of Peace, or of War
;
that is, whe-
ther Men who live in a natural Freedom, fo as
neither to be fubjeft to one another, nor to ac-
knowledge a common Mafter, are likely to prove
Enemies, or Friends. In this fecond Confidera-
tion the State we are fpeaking of, is capable of
a Subdivifion , being either ///// and abfolute., and
fo bearing an equal Regard towards all Men in
general , or elfc limited and rejlrain'd, as it has
vin. HobbesV Reafons anfivered.
IX. Reafon is not to be denfd
its
Ufe in the
State
of
Nature.
X. 'the Manners
of
barbarous Nations do not make
up the State
of
Nature.
XI. Natural Peace has no need of Covenants.
XII. Natural Peace is not to be trufled to.
Refpeft only to a certain Part of Mankind.
This;
double Notion of a State is anfwerable to the double
Manner in which we may confider the Menwho are
tocompofe it, either as each particular Man lives in
a natural Liberty towards all others
>
or as fome
Men have entred into a Society between themfelvcs,
but are join'd to all the reft of the World by no
other Ties, befides thofe of common Humanity.
II. Now to form in our Minds fome Image of
this natural State, fuch as it would be, if deftitute
of all Arts and Affiftances either invented by
Men, or reveal'd by Go d, we muft flinfy a Man
thrown at a Venture into the World , and then
left intirely to himlelf, without receiving any far-
ther Help or Benefit from others, than his bare
Nativity
;
we muft- likewife fuppoie him to be
furnifh'd with no larger Endowments of Body or
Mind, than fuch as we can now difcov^er in Men,
antecedent to all Culture and Information
; and
laftly, we muft take it for granted, that he is not
foftcr'd under the peculiar Care and Concern of
Heaven. The Condition of fuch a Perfon could
not prove otherwife than cxtreamly
miferable,
whether he were thus caft upon the Earth in In-
fancy, or in Maturity of Stature and of Strength.
If an Infiint, he could not but have ladly
perifii'd,
unlefs fome Brute Creature had, by a kind of
Miracle, offer'd its Dugs for his Support;
and
then he muii nccefi^irily have imbib'd
'
a fierce
and favage Temper, under the Nurfery
and
Tutelage of Beafts. If in Perfeftion of Limbs
and Size, we muft, however, conceive him naked,
able to utter nothing but an inarticulate Sound,
a
Stranger to all Inftitution and Diicipline, amazed
and ftartled at the Things about him , and even
at his own Being : The Admonition of
Hunger
1', as
appointed
Mr. Barb. NOtES on Ch. II. . i.
'
If Uv.Titiu! (0i/f>-t/4/.
452.) Ii.id confidered well thefe Words, lie would not have cmicifed upon our Authoi
ialling that Eftate Natural very unfitly, which is contrary to Nature, i c. to the Intention of God, who appoi
Man tor Society. See what our Author fays at the End of . 4
. ii.
'
This appears from an Inftance which Procopius {Lib. ii. Goth'icorum) relates of a Child nurfed by a Goat.
Mr. Hertius alfo quotes Harthknock's Hiftory of Poland, Lib. i. Ch. ii. who relates fomething like it of an Infant who
had been fuckled by a Bear, and bemg brought to Warfaw, was prefented toCi7//>;;eKing o? Poland, in 1661. I fliall
alfo add at length a like Story which the fame Mr. Hertius has fet down in his Trcatife of Society
,
the firfl Principle
of the Law of Nature, Sett. i. . 8. yet leavins^ the Reader at Liberty to fee into the Truth of it, tho' the Autlior
-
ritiu:), ivii.tM uitj .....1 i.,iu>.. L..^ ^....^, .;...5
v..v....v.,^.- by it to keep it Irom t!ie (Jokl. 1 Hey tauglit it to' go on
"
the Hands and Feet, and run like themfelves, infomuch that by Cuitoni it would run as fuitt, and make as great
"
Leaps. When he was firft taken, they bound fome Pieces of Wood to him, to rtflorc hiin, and
nccuftonriiini
"
not to' go like a IJeafl with his Face downward. He was carried to the Court of J^fwry Prince of
Hi-jJ'e, and was
"
often heard to fay , That if it were not for him, he had rather live aniongft ilic Wolves again, than among Men.
"
ihis Story is related by the Author of the Additions to the Hiflory of i^w'f/ df Sclnijj'iiabtrg, aboiu 154+.
voulil
Chap.
II.
Of
the natural State
of
Man,
103
would
make him feize greedily on any Thing that
was
near him,
his Thirft would dired him to the
firil
Water,
and Dens or Trees would afford a
Refuge
from the Injuries of Wcarher. Should we
fuppofc a Number of fuch helpleis Wretches thrown
together by
Nature on fome uninhabited Soil, we
cannot but think that they would fo long however
continue in a brutal Wildnefs and Diforder, till at
laft,
either by their own Wit and Experience, or
by
lome Hints and Inftruftions taken from the
Conduft of mute Creatures, they fhould by De-
grees arrive at fome Method and Elegancy of Liv-
ing, and as ^/rg/7fays,
Varias ufiis
nieditando extundcret artes,
Studious Need might beat out ufeful Arts.
This will eafily be acknowledg'd by any one that
looks about on the numerous Improvements and
Affiftances which we make ufe of in our daily A-
tions, and at the fame Time confiders how difficult
it would be for any Man to invent all thefe of his
own Head, if he were not put in the Way by the
previous Labour and Guidance of others
j
and how
great a Part of thcfc Ornaments and Conveniencies
of Life, would at once enter into the Thouglitsof
the Generality of Mankind. Hence it is no Won-
der that the Heathen Writers, who underltood
not the true Origin of Men as delivered in holy
Scriptures, fhould make fo foul a Reprefentation
of their primitive State.
^um
p'orepfijfent primis animalia terris,,
Mtitum sf turpe pecus^ glandem atq-y cubiliaprenfant
Ungtiibtts
^
pugnis^y de'in fujlibus^ atq; ita porro
Pugnabant armis^ qua poji fahricaverat
ufeis.
Donee verba, quibtis voces
fenfiifq-,
notarent
Nominaq; invencre ; dehinc
abfiflcre bello,
Oppida cceperunt mimrc,
l^ condere leges,
Ne quis
fur ejfet, neu latro, neu quis adulter.
When the firfl Fathers of our human Brood,
Dirty and dumb crawl'd fi'om the teeming Mud
>
A War began with Nails, and Fifts, and Heads,
For Acorn Banquets, and for leafy Beds.
Cudgels came next in Play, and riper Hate
Arm'd them with furer Inftruments of Fate.
At length their Voice grew Index oftheir Thought,
Joyful to name the Things for which they fought.
Now Rage began to cool, and Force to ceafe,
And gen'ral Parlies work'd a gen'ral Peace.
Towns rofe, and Laws were fettled, to remove
Invading Thefts, and check licentious Love.
This
is^o?',^c^'sDcfcription, and we mayexpet
a fuller from Lucretius.
Et
genus humanum multo fuit iJJud in arvis
Durius, ut decuit, T'ellus quod dura
creaffet.
^od
fol atq; imbres dederant, quod terra crearat
Spontefud,
fatis idplacabat peSlora donum\
Glandiferas
inter curabant corpora quercus
j
Pkrumque.
Atfedare fitim
fluvii fontefq; vocabant.
Nee dum res
ignifcibant traSlare, nee uti
PeUilms,
^fpoliis corpus vejlire
fcrarum
:
Sed nemora atq; cavos montes
fylvafq; colebant.
Et
f
rutices inter condcbant
fqualida membra,
Verbera ventorum vitare
imbrefq; coali.
Nee commune bonura poterant
fpeSlare, nee ullis
Moribus inter
fe feibant, nee legibusuti.
^iod cu'ique obtukrat
pradafortuna,
frehat,
SpoHtc fuel fibi quifque valere
Isl vivere doclus.
Et Venus in
fyhisjungebat corpora amanturn,
ConciUabat enim vel mutua quamquc cupido,
Vel violenta viri vis atq; impenfa libido.
r
?.efl.i
r
04
Q/" ^^^ natural State
of
Man. B o o k
11.
For us'd to Fire, his Limbs refus'd to bear thofeDays, before the Settlement
of
natural or
of civil
The piercing Sharpnefs of the open Air
:
Laws^ 'wanderedfeparately about the Fields, and
pof-
Lull weaken'd him, and the iwcet playing Child
fefs'd no more than "jjhat they couldget or keep by mu-
Tam'd his wild Sire, and into Peace beguil'd. iiial Force, and PFounds, and Slaughters. Now be-
Then Neighbours by Degrees familiar grown, t'VJeen our prefent IVay
of Life, polifo'd ivith Huma-
JMade Leagues and Bonds, and each fccur'd his oivn. nity andCivlUty, dndthat rude and barbarous
Courfc,
And then by Signs, and broken Words agreed, the only diftinguifloing Marks are Law and
Violence.
That they would keep, preferve, defend, and feed Fid. deLivent. Lib. i.
Defencelefs Infants, and the Female Train
j
Euripid. Supplic.
A Right which Pity urg'd them to maintain.
I praife the genejous Pow'rs, that fenc'd our Life
Tho' this fix'd not an univerfal Peace, \\'ith Rules and Graces from the lawlefs Herd}
Yet many kept their Faith, and liv'd at Eafej
By giving firll a Soul, and next a Tongue,
Or elfe, almoft as foon as it began,
The Soul's Interpreter
j
and Fruit for Food,
The Race had fall'n, this Age ne'er feen a Man.
And kindly Rain to breed a future Store :
Kind Nature Power of framing Sounds affords.
And clofe Abodes, to skreen us from the Rage
And thefe at length Convenience turn'd to Words. Of threatning Skies
>
and Sails to wing ourCourfe
Mr. Creech.
To diilant Shore, to join the Globe in Trade,
And mix the common Treafurcs of Mankind.
We have much the fame Siory in Profe from
Diodor. Sie. Lib. i. c.vin.T'hey tell us,that Menattheir ItisageneralCuftom vviththePoets to attribute
frfi
Origin led an irregular Life, in the Manner
of
to the Gods the Invention of all Things ufeful
Beafls;fcatteringthemfelves -about in Search
of
Food, in human Life. Vid. Oppian. Ualieut. Lib.ii.
which --iVas prefcnted them by the favoury F.erbs, and v. 16, k3c.
the Fruits -which greiv
of
their own Jccord. But be- However fabulous thefe Accounts appear, yen
ing infefled
on every Side with the wild Beafls, they fo for the Authors of them were in the right, th.ic
learnt by life the Secuiity
of
mutual AJfiflance ;
and upon Suppo&J of fuch an Origin of Mankmd 4,
heihg forc'd by Fear to unite in Society, they came ac- the Face of Nature would have born all thele Fca-
quainledby Degrreswiththeir Similitude
of
Figure and tures which we now efteem fo monftrous and ex-
Shape. 'The fir
ji Men, before any Inventions
of
Con- travagant. In the fame Manner being ignorant of
veniency and life, fupported Life
with great Labour the State of Paradife, they pleas'd themfelves in
and "Trouble ; being, as yet, deflitute of
Cloaths and making Defcriptiops -of a fingular and conftant
Dwellings, unaccufiomd to the Relief of
Fire, and Temperatenef; of An-, and of a ipontaneous Fer-
Strangers to all fweet and regular Food. Being ig-
tility of the Earth, in the firft and the golden Age
norant
of
Stores and Provifions, they negledledto fecure
of the World. Bccaufc they thought it impoffi-
fo
much
of
the Fruits
of
the Earth as was requifite for
ble that human Race could have been preferv'd, as
necejfary Sufenav.ce. And thus many perifl} d in the according to their Notion they v/ere produc'd, if
IFinter by Hunger and Cold. But being afterwards in- the Weather and the Seafons had been then
as
ftrurfedby
gradual Experience,to fpend thatfJjarp Sea- changeable and as unfteady as now, and if the
foninCaves,
andtolayup a Stockof Necejfaries, and Support of Food had not been more eafy to
finding out the Ufe of
Fire and other Comforts and procure
'.
And indeed, tho' it is clear from
Supports,they began to introduce many Arts,andmany the Authority of Scripture, that the primitive
Advantages
of
living. Add, Lib.i. Ch.xhii. Cicero Mortals, by the divine Direction and Afliilance
',
pro P.Sectio. PFhoatnongji you docs not know the Con- arriv'd at a very early Knowledge of the molt ne-
dition
of
Nature to have been once fuch,
that Men, in cefTary Arts (Sec Gc^.iii. 21, 23.
and iv.
17, 2z.)
Whence come thofe Monfters of Ambition, Covetoufnefs, Pleafure, Cruelty, and Inhumanity,
which ordinarily
rei"j;n in the Courts of Princes, and whole contagious Examples fpread almoft always to their Inferiors
:
* +
The horrible Perfecutions which the Subjects fometimes fufFer, and the bloody Wars which often harrafs the moft flou-
rifbing States and Empires, prove, that Peace and Tranquillity do not more ordinarily flourifh in civil Societies, than in the
State of Nature.
''
How comes it to p.ifs that we fee fo manv Families reduced to Beggary, and fo many Subjefts ruin'd by Extortion?
''
Under thefe fine Names are often hidden Vanity, Sottiflinefs, Folly, Pedantry, irregular Pafllons, and lubtle Cheats.
There is no good Thing that can be 'ecured to us by Society, but it may have Place in a State of Nature. Further, this Beau-
ty, Poliienefs, and Plcafures of Life, of which Men boaft fo, are found only in great Cities
; the ruftick Beh:.\iour is ftill
kept up every where in the Country, in the moft civilized Kingdoms. Let us then, by way of Concluflon, makeanexaft
Parallel between the States of Nature and Civil. Experience teaches us, that contrary to the natural Appointment of the
Creator, and thro' Man's Corruption, both States are often troublefoine and unhappy
;
but Civil Government being a proper
Means to reilrain the Malice ol Men, the Civil State, without Contradiftion, may be more fociatle and happy than the State
of N.iture; but then we muft fuppofe the civil Society to be well governed, otherwife, it a King abufe his Power, or de-
volves the Management ot Civil Affairs to Miiiiftcrs both ijnotint and vicious, as it often li.ippens, a Civil State is more
iiniiappy than the State of Nature; which appears by the Wars, Calamities, and Vices which fpringupfrom fuch Abufes,
and trom which the State of Nature is free. See what Mr. Locke fays in his fecond
Treatife of Civil Government, Chap. i.
.
10. and C/j.!;i. xviii.
.17. near the End.
*
'Tis a Proverb of the
'JcwiJl)'DoQ.oxs. SceGrotius. Lib.l Chap. iv. .4.
nmn.z.
V fubjed
Of
the natural
State
of
Man.
1 06
fubiea
to
any
Sovereignty
or Command. For
from
the former
Reflexion
it follows, that Men
pkc'd after this manner in a natural State, mayufe
and enjoy the
common
Goods and Bleffing, and
may aft and purfue
whatever
makes for their own
Piefervation,
while they do not hence injure the
Right of the reft.
From the latter Suppofition
it is clear, that they may ufe not only their own
Strength, but their ownJudgment
and Will (pro-
vided thev are form'd and
guided according to the
Law of Nature) for procuring
their own Defence
and Safety.
And in this Relped likewife, the
State we are treating of has
obtain'd the Name of
natural Liberty; in as much as, antecedently to all
human Pat and Deed, every Man is conceiv'd to
be perfeftly in his own Power and Difpofal, and
not to be controll'd by the Pleafure or Authority
of any other. On which account too, every Man
may be thus acknowledg'd
equal to every Man,
fince all Subjeaion and all Command
are equally
banifh'd on both Sides.
According to this Tem-
perament, we ought to correft and explain thofe
Aflertions laid down by Mr. Hobbes^ in the Be-
ginning of his Book D^Ci^r, fhat the
firft
Founda-
tion
of
natural Rights is the Liberty -which each Man
hath^ topt-eferve, as
far
as he is able, his own Life
'andLimbs, and to apply all his Endeavours
towards
the guarding his Body from
Death, andfrom
Pains.
From which it follows,
"Vh.'xx.
fince
"tis in vain to
have a Right to the End,
if
one has not likewife a
Right to the Means,thcrefore
every Man has a Right
of ufing all Means, and
of
doing all Actions, without
which he cannot defend and enfure himfelf.
But now
fince in a natural State no Man is fubjcd to ano-
ther as to a Superior, to whofe Pleafure his own
AVill and Judgment
fhould be fubmitted, hence
every Man is by natural Right a Judge,
whether the
Means which he ufes,
and the JElions which heper-
forms, are necefj'ary to the Prefervation of
his vivn
Life and Limbs, or not : For altho' in this Cafe
one Man fhould pretend to give Advice to
another, yet the ether not having fubjefted his
Will and Judgment to his Controul, may ftill
judge of this Advice, whether it be proper and
expedient to be foUow'd, or not. And therefore
he may, perhaps, do according as he was advis'd,
but then it will not be for the fake of the Coun-
fellor, but becaufe he himfelf approves of thePro-
pofalj and confequently he will at lafl al by the
Determination of his own Judgment. From all
which he concludes, fhat Nature has given to
every one a Right to all "things ; that is, in a meer
natural State, or before Men had bound themfelves
to one another by any Covenants, it was lawful for
Book II.
every one, to do all "things ivhatfocver and againfi
whomfo^ver he pleas'd;
and to
poffcfs, ufe,
and en-
joy all that he would or could, ff^hcnce it may be
under
flood,
that in a State
of
Nature,
Profit or U~
tility is the Meafure of
Right. Which Notions,
however paradoxical they appear jft firft View, yet
no Man can f;\irly draw from them a Licence
of
doing any Thing to any Perfon^ who confiders
that Hobbes, even in this State of Nature, fuppo-
fes a Man fubjeft to the Laws of Nature, and to
the Government of
'
found Rcafon. But fince
fuch an unbounded and injurious Licence could ne-
ver, by any Man in his Wits, be thought a likely
Means for the lafting Prefervation of himfelf,
we
muft prefume that it was never granted or intended
by Nature. And fuppofe fome Maa fhould be fo
extravagant as to endeavour the putting it in Prac-
tice, it's plain his Experiment would turn in
a
high Manner to his own Prejudice and Mifchief
So that the only fair Senfe oi Hobbes''s Principle
is
this ; the Things which make for the Prefervation
of Men, Nature has laid in common, before they
have divided them amongft thcmlelves
by Co-
venant: And he that has no Superior, may by
the Dircftion of his own be(i and foundell
Reafon, do any Thing that is truly conducible
to his lafling Safety. But if that Philofopher re.il-
ly intended his Words with the fame Harfhnefs,
and the fame grofs Appearance which their Coun-
tenance bears, and to reject our kind and favouia-
ble Interpretation, the Fault is his own, and let
him fliift how he can to efcape the perpetual Cen-
fure and Reprehenfionof wife Men. This is evi-
dent, that the Author of the
Theologico-PoUtical
Treatife, who goes commonly by the
Name of
Spinoza, has del'crib'd that Right
of
all Men to all
Things which attend a natural State, in moft hor-
rid and barbarous Terms; and therefore it may not
be improper to take the Trouble of difcufling
his
Notions on the Point. By the Right and
Infiiiution
of
Nature, he underftands nothing elfc, but the
Rules
of
the Nature
of
every individual Thing, ac-
cording to which we conceive every one
of
them to be
naturally
determined to a certain Manner o'-
Exlflence
and
of
Operation. For Example, Fifhcs are natu-
rally determined tofiwim,and
the bigger
of
them to eat
the leffer-y
and therefore Fifiies, by the
highefi natu-
ral Right,
pofi'efs
the Heater, and by the
Jame Right,
the larger Kinds
of
them prey on the fmaller.
Here ic
is obfervablc, that by the Term of Right he does
not expiefs any Law direftive of an Action
, but
only the Power of afting
'
and what may be done
without Injury, and that therefore 'tis by no
Means-
a fair Conclufion, that one ought necefTarily
todo
. III.
*
Mr. Hobta, ashehimrdf fnysin a Note upon $. i. of the fecond Chapter, underftands by right Reafon, not as
moft do, the infallible Faculty, but the Power of Reafoning, i.e. the proper and true Arguings which every one makes up-
on his own Actions, fofaras they conduce to the Advantage or Detriment of othet Men. If we ask him what is ti;is true
.Reafonin::, he'll anfwer. It is founded upon the Principles laid down in tlie foregoing Chapter, . i,
3 4. 5, 6, and
7. upon
the State of War, wherein he fuppofes all Men to be naturally one againft another ;
a faHe Suppofition, wliich our Author
will confute a little lower, .';,a'c. So that we fee, that according to Mr. HoWef, allis reduced to every Man's Judgment,
either well or ill founded. This appears clearly from wiiat he pofitively maintains,!/";!? / whateier Manner a Man deals -with a
Perfin,
-Mith -Jihom he makes a Bargain, orContrad, he does him no injury. See above ;t. i. Chap.\\\.
13. If a Man fins
a^ainflGoD, or the Laws of Nature, 'tis, according to him, becaufe we pretend fomething is neceflary for our Preferv..-
tion, which we knowin Confcicnce not to be fo. NoteonChap.i. . 10. See alfo that on C/p<j/>. iii.
.27.
The Words of the Original, in M the Edhions of Germany nnd Hoiland (for in that which the Author publifhed at Z;j-
den in Sv:eden in 1671,
there is nothing of this Confutation of !-pinoza) not excepting that which Mr. Hertius put out in
1706,
the Words are placed as we find them'in this En-Jifi Edition, but they make a ftrange Hotch-potch
;
for if we examine
into
the Sequel of the Difcourfe, and the Defign of the Author, we may cafily difcern them mifplaced
;
for thefe laft Words,
And -Juh.it may be done without Injury, ought not to refer to the pure Vacuity of afting, which may do a great deal of Injury,
but to the Laws, which forbid doing an Injury to any Man, and therefore 1 have placed it in its right Order in
myTranflation.
all
Chap.
II.
Of
the mintat State
of Mat!;
i
qj
all thofe things,
which one has
a Right of do- Method of afting,
and
dve fo contradiftin^uifird
ing.
Farther, as it is an improper Acceptation of to free Agents : And
therefore
Men, as to thole
the Term of natural Laxv^ to make it denote that Aftions which are left to their
own Guidance and
according to which every thing a6ts by a certain Direction
,
are determin'd to
certain
Ways and
and determinate Manner, fo is it likewifc impro- Courfes not by Nature, but by fome
Law
^
and
per to apply the Name oi Right to that Power and confequently they are not prell-iuiy
invcftcd'
with
manner of afting which appears in irrational Be- a Right of doing all things within the reach of theil
ings : For he alone can be truly faid to have a
natural Powers and Abilities. But the Vanity
ot
Right ofating, who afts on previous Reafon and fiich Reafonings will more fully appear,
ifdivefl-
Deliberation. He proceeds to tell us, That Nature ing them of their dark Turnings and Intricacies
abfolutcly confidcfd has the higheft Right
of
doing we thus clearly propofe themj God has the hif^h-
whatever it can
;
that the Right
of
Nature extends eft Right to all things
j
the Power of Natui-e is the
itfelf as far as the Power
of
Nature: For the Power Power of God, therefore Nature has a Rii^hc
of
Nature is the very Power
of
God^ who hath the to all things : But the Power of Nature is ^he
highcjl Right to all things. Here, i hy Nature
a!>fo-
Power of all the Individuals together; therefore
lutely confdefd,
"
he means God in Conjunftion each Individual has a Right to all things. Let any
with all created Things, we grant his Aflertion, Man judge whether the Connexion in this Argu-
and wilhngly acknowledge in God the higheft ment be juft, or not. .y/;;OT/^ very filfly declares, ?7j^^
Right to all Things, yet fuch a Right as is fuited
in this Point no
Difference ought to be made between
to the Perfections ofhis EfTence. But if by Nature
Men, and the other Individuals
of
Nature
>
or be-
he underftand the Univerfity of created Beings, as
tween Men who underfland and exercife Reafon, and
contradilHnguifli'd to the Creator, then we may thofe who do not ; nor between Men in their ft'itSy
deny the Power of Nature to be the Power of
and Fools and Madmen. For, as to the firft Part of
God himfelf, or that thefe two Powers have the
this Aflertion, theQiieftion of Right ought not to
fame Latitude and Extent. The Power of Nature proceed but about the Right of Men. And as to
is indeed produc'd by God, but not in fuch a
the latter Parr, altho' fome A'len may have a quick-
manner as to exhauft all the Power of the Divinity, er and fome a flower XJ^e of Realbn, yet who-
but to contain itfelf within the Bounds prefcrib'd ever has any Ufe at all ot that Faculty may at leaft
by its Author. His next Inference runs thus, Since
underftand
thus much *, in Order to his own
the univerfal Power
of
all Nature is nothing
elfe but Prelei-vation he has no Need of an unlimited Right
the Power
of
all the Individuals taken together, it
to all Things, and that therefore fuch a Right
follows that each Individual has the highef Right to
doth by no Means belong to him. As for thole
all things that it can compafs, or that the Right
of
who have no Manner of Ufe of Reafon,- 'twould
each Individual extends
itfelf
as far as the determi-
be frivolous to difpute about their Right; nor from
tiate Power
of
the fame
Individual. But 'tis be-
the unhappy
Circumftances of dileas'd Perfons,
yond me to apprehend the Conclufivenefs of this
can we pronounce any thing about the natural
Argument, The Pozver
of
all Nature is the Power
Condition of Mankind ; Nor is it impoiTible for
of
all the Individuals together, therefore each Indivi-
any one of thefe poor Creatures to be preferv'd
dual has the
higheft Ri^ot to all Things. For is it not
otherwife
than by a Right to all things. The Rea-
rather true, that each Individual has a certain and
fon
which he fubjoins is equally vain and fruitlels,
definiteShare orPortion of Right ; and that there-
For whatfoever any thing aSis by the Laws
of
its
fore no particular Individual can fairly arrogate to
Nature, it acts with the
higheft Right
; inafmuch
itfelf that Right which is proper to all ; as they
as it als as it is by Nature determin'd, and cannot
make up one univerfal Nature ? He adds, ylnd be-
do otherwife. Becaufe we deny Man when he ads
caufe it is a
fupreme Law
of
Nature, that every bytheLawof Nature, to affecl a Right to all things,
thing endeavour as
far as it is able to continue in its
or to be determin'd by Natui-e to the Exercife of
own State, and this not with any regard or refpeEl to
any fuch Right.
Spinofa'^ Conclufion therefore is
other things, but only to
itfelf,
hence it follows, that
falfe,
Jmongft Men, as they are confdefdto live only
each Individual has the
higheft Right to this Advan-
under the Command
of Reafon
;
he who is not come to a
iage
}
that is, to cxifl and to operate as it is naturally Knowledge
of
Reajon, or who has riot yet acquired
a
determined. Here, befides that Law
of
Nature is
Habit
of
Tirtue, doth as well by the
higheft Right live
us'd in an improper Senfe, it is apparently fiilfe as accordingto the Laws
of
his Appetite, ashewho diretls
to Men at leaft, that their Nature is fo determin'd, bis
Life by the Laws
of
Reafon. That is, as a wife Man
as to make them endeavour their own Prefervation has the
higheft Right to all things which
Reafon
fuggefts,
and Continuance
'
with refpeft to themfclves on- or according to the rational Laws
of
living;
fo an ig-
ly, without any Care or Confideration for others, norant and
fenfclefs Perfon has the
higheft Right to
Properly fpeaking, thofe things are fiid to be Na^ all things which his Appetite
affeSls, or accordingto the
turally
determin'd which are tied to an uniform Laws
of
living by Appetite. But now the natural
' In Reality, the mecr pliyfical Power of doing a Thing, does not prove th.Tt wc .ire indifperifibly obliged to do
't,
nor th.n we can lawfully do it, if we will
;
at leaft, it fuppofes what is in Queftion, that a phyiical and moral
Power
are one and the fame Thing.
We may fee plainly enough that
Sfinofa does not acknowledge a G o d, or fuch an intelliaent Being as is altoge-
ther
perfefl.
What h^ calls God is nothing but the World, which he fuppofes eternal, and not created.
See
. V. below, and the following Chapter, where Society is treated of.
This is fo true, that Mr. Hobhcs, whofe Notions, at the Bottom, are not much diftant from Sfiaofa's, makes a
Nccellity
to
come to fome Agreements, which according to him are tha Foundation of Jufticc,
upon which it could
not be
poffible to preferve ourfelves, by makin? ufe of that boundlefs Righr about every thing,
and againft all Men.
See his
Book rfe Cne, Ch. i. , ii. i;. and Ch.^ii. . 3. Spinofa himfelf, as our Author
obferves at the End of this
I aragraph,
afferts. That it is more advantagious to follow the Maxims of Reafon, than the Dcfires of Kature only.
P 2.
State
io8
State or the Command and Dominion of Nature,
iuppofcs Reafon in Men, nor are other Laws pre-
fcrib'd to the Sagacious, and othei"S to the Simple.
Thofe who arc govern'd purely by Appetite, are
Subjefts incapable of Right or Law. But when
the Appetite in Men proceeds contrary to their
Reafon, they are fo far from living by any Right,
or by any Laws, that they are continually
guilty
of tranfgreffing the Laws. The Corollaries which
he deduces are no truer than the foregoing Propo-
rtions, the natural Right
of
each Man is not deier-
rnhid by found Reafon, but by Defire and by Pozver.
For allMen are riot naturally determined
to operate ac-
cording to the Rules and the Laws
of Reafon ; but on
the contrary, all are born ignorant
of
all things, and
before they can attain to know the true and rational
TVay
of
Living, and acquire the Habit
of
Virtue, a
great Part
of
their Age {altho' they have been well
educated)
paffes away, and yet notwithftanding all
this, they are in the -mean time bound to 'live, and to
preferve themfelves to the
befl of
their Power
; and
this Obligation is
fulfilled by obeying the
fole Motion
of
their
Appetite,
fince Nature has yet given them no
other Guide,
denyingthemthe actual Power
of
living by
found Reafon
j
and therefore they are no more obliged
to live by the Laws
of
true
Senfe and
Judgment,
than a Cat is oblig^l to live by fuch Laws as are pro-
per only to the Nature
of
a Lion. For to make a
Man oblig'd
to live according to Realbn, it is not
neceflary
that he ihonld be naturally determined
to
aa according to the Laws of Reafon, that is, that
he fhould not be able to ad otherwife
; but it is
fufficienr,
that he has fo much natural Power,
as
may enable him to abftain from bringing
Injuries
and Troubles on other Menj than which nothing
in the World can be more eafy. Neither is the
Manner and Method of preferving himfelf fo very
difficult and
laborious, as to make him (land in
need of a Right
to all Things. And then from
him who through
Defcd of
Age is yet in abfolute
Ignorance,
none can require a more accurate
Di-
reftion of his Proceedings,
than is confiitent
with
his low Capacity, and his fmall and feeble Efforts
of Reafon. But that what is done in this State of
Simplicity may not prove very hurtful or trouble-
fome to others,
Nature has carefully provided
> by
giving it fo Uttle
Strength of its own, and by com-
mending
the Care and Guidance of it to thofe of
maturer Years.
The following
Inference is as fhlfe
as the former.
Whatfocver therefore any one,
confi-
dedd only under
the Command and Guidance
of
Na-
ture,
fJoall judge
convenient
for himfelf, either hy the
Direilion
of Reafon, or by the
Impulfe
of
his
Pafflons,
thisby the
highefl natural Right hemay
defire, andmay
fetzeupon by
whatever
means he can, whether by Force,
or by Fraud,
or by
Entreaty,
or the
eafieft
way he can
think
of; and
confequently he may reckon every one
bis Enemy,
who
would hinder him
from fatisfyim
his
Lnchnations.
As alfo this,
l^Vhence it fo'llowt
that the Right and the
Infiitution
of Nature, under
which all are Born, and the
mofi part Live, is
averfe
to nothing,
befides that which none can
defire, and
which
none can hinder
j
not to
Contentions,
-not to
Hatred,
not to Anger, not to Deceit, nor
abfolwtely
. IV. The three Sentences
in the
pvimitive
A^e
Liberty
J-et the
Reader
jucTge.
Of
tie
natural State
of
Man. Bo
ok
II.
to any thing which it's
pofiible for the
Appetite
t
purfue. This AfTertion, if applied to Men,
is
ma-
nifellly falfe and abfurd. But if it includes
all liv-
ing Creatures, and be meant in thi;5 Senfe,
that
there is no Way or Manner of
Self-prefervation
which fome animate Being doth not
follow
and
make Ufe of, out of natural Inftind,
then it
is
nothing to the Purpofe
j
fince the only
Queftion
is, whether Men have fuch a Right to all
Things
as they may ufe againfl: all other Men. But
that
Spinofa intended the latter Senfe, is evident
from
what follows, And no wonder,
for Nature is not re-
frained to the Laws
of
human
Reafon^ which
con-
cern only the true
Profit and Prefcrvation
of Men
Semperque recentes
ConvtClare j'uvat pndas,
v
zivere rapto. iCrteid. ix,
v. 6n, 613,
thdr
Chap.
II;
Of
the natural State
of
Man.-
115
their
P(i_(fage
through thofe
Parts
:
Jnd it was then
a
receh'd Cuftom
amongjl them^ to deal in this Man-
ner
with all tbofi
ivhom they were united to byfolemn
Leagues
and Jgrecmems. Jfocrates (Panathen.) ob-
fervcs of the Triballians
,
'There are no Men ivho ob-
ferve a flriSler
Concord amongjl themfehes }
but then
'they endeavour utterly to
defiroy
all befides ; not only their
Borderers and Neighbours^ hut any People to whom
they can force anAcccfs. Add. Grot. Lib. ii. Ch.xv.
.
f.
This antient Hoftility, amongfl: other Rca-
fons that are given for it, might proceed, in a great
mcafurc, from the grofi Superllition and Idolatry
of thofe Nations, by which every People imagin'd
themfelves to have peculiar Gods, and thofe only
true ones'. Vid. Juvenal. Sat.
if.
In return to this vulgar Argument, 'tis fufficient
to fay, that in thofe blinder Ages of the World,
the Dictates and Informations of found Renfon
were choak'd and ftifled by the Prevalency of cor-
rupted Manners. Yet it doth not follow from hence,
that there was no Man, even in thofe Nations,
fenfiblc enough to apprehend that the Laws of
Nature were violated by this Courfe of Robberies
and Spoils, or to difallow that State to be natural,
into which wild and ungovernable Men had thrown
themfelves, in Negled: and in Contempt of the
nobleft Part of their Being. For that a promif-
cuous Liberty of Rapine doth not flow as a Con-
fcqucnce from a State of Nature, is evident, be-
caufe the like ill Effeft is not feen in the State
which different Commonwealths now bear to one
another, which is really natural. Nor muJl we
admit what Hohhes farther aJTerts, thzt
fuppofmg
Matters food thus
,
Robbery or Pillaging would be
contrary to the Law
of
Nature. For thofe who had
plunder'd us in this Manner without Provocation,
we might have treated with the like Violence, and
have made Reprifals on their Poffeffions for the
Lofs of our own : But then we could not have
fhewn fuch rough Ufage to a third Perfon , who
bad offer'd no Injury or Molcftation to us before.
The Impudence of Tome Pcrfons, in breaking the
Law of Nature, is no juftifying Example for us
to imitate. Nor is the Remark more tolerable
which Hobbcs fubjoins, that this Kind
of
Life was
fWt without Glory to them who exercis''d it valiantly^
and yet not cruelly. Asit was the
Cuftom of
fome^ who
laid violent Llands on every thing
elfe.^
to
fpare the
Perfons Lives.^ and to
pafs
by the ploughing Oxcn^
and all the Inftruments
of
Husbandry. Which they
did.y not as
if
they were obliged to it by the Law
of
Na-
ture^ but purely confulting their own Glory.,
left
their
Cruelty ftoould betray their Cowardice. A wondrous
Glory indeed, to accomplifh only half a Villany,
when to have carried it through, would not have
turn'd to fo much Advantage I
XI. When we affirm that the Exercife of a
Peace towards all Men as fuch^
is the natural
State of Man, we imply that it is inftituted and
eftablifh'd by bare Nature, without the Interven-
tion of any human Deed
; and that therefore it de-
pends folely on that Obligation
of natural Law
by which Men are bound as they are reafonable
Creatures
j
and doth not owe its firft
Introdution
to the Agreement and Covenant of Men.
Hence
to us it feems ufelefs to frame anyPafts or Leagues
barely for the Defence and Support of this
Uni-
verfal Peace '. For by fuch a League or Bond
nothing is fuperadded to the Obligation of
the
Law of Nature; or, no Agreement is made for
the Performance of any thing, which Men were
not before by the Law of Nature bound to
perform : Nor is the former Obligation rendred
ilrcighter or firmer by fuch an Audition. For
we fuppofe both Parties to remain in a natural
Equality, and confequently not to be held to their
Covenant by any other Tie, than that of Reve-
rence towards God Almighty, and Fear of fuch
Evil as may fall on them if they break the Agree-
ment. Though indeed there appears fomewhat
of Bafenefs and Foulnefs in refufing a Thing which
one has cxprefly engag'd to perform. As for the
Power and Liberty which the injur'd Party hath,
of proceeding againft fuch a Violator of Nature's
Law, this is altogether the fame, whether any an-
tecedent Covenant hath been made, or not. Men
of any tolerable Culture and Civility mull needs
abhor the cutting into any fuch Compact, ihe
Heads and Conditions of which imply only thus
much, that the Party concern'd fhall not offend
in fome Point, which was before an exprei's Com-
mand of Nature. Befides, we fhould be guilty
of great Irreverence towards God, fhould we
fuppofe, that his Injunctions had not already laid
a fufficient Neceffity upon us, unlefs we ourfelves
voluntarily confented to the fame- Engagement}
as if our Obligation
rr, obey the divine Will de-
pended oi-i our own Pleafure. Therefore in every
Covenant fome Matter is to be inferred, the Per-
formance of which the other Party could not have
required from me, by a bare Right of Nature, or
which by virturc of that Right only I did not tlilly
and perfectly owe him; tho'it now becomes a true
and abfolute Debt , upon my Declaration, and his
Acceptance of my Confent. Thus, as a Man who
lets himfelf out to hire as a Servant to another, doth
not fct it down exprefly and immediately amongft
the Terms and Conditions of the Bargain, that he
will not at perfidioufly towards him, or that he
will not pillage or plunder him
;
fo that would be
a fhametul Agreement, in which a Man fhould
only bind himfelf not to break the Univerfal
Peace towards another
;
that is, not to ule fuch a
Right againfl him, as he obtains and exercifes over
Bcails. Yet fuppofing any fuch Robberies and
Depredations, as we have been lately fpeaking of,
to prevail amongft fome Barbarous Nations, then,
in order to the reftoring the Univerfal Peace, there
a^
would
ii6
Of
the natural State
of
Man.
Book
II.
would
be
Occafion to enter into Covenant, by
which
all Parties lliould tie themfelves to the Prac-
tice of the Law of Nature towards one another.
The Cafe is much the lame, when two Nations,
hitherto engag'd in War, lliall, by Agreement,
lay down their Arms on both Sides ; for fuppofing
that they do not come to any Terms of Settle-
ment about particular Matters and Performances
J
then the only Thing concluded on and eftablifh'd,
is that general and common Peace. We find in-
deed in Hiflory, many Examples of Common-
wealths reduc'd to fuch Extremities, as to purchale
of their Spoilers this
-
univerlixl Peace and For-
bearance of Injuries, not only by Compaft, but
by Tribute. Claudian De Laudib. Stilicon. Lib.'i.
1?. zio, 211. fays, that the Antients were obliged
to do fo, in thefe Verfes,
///;
terribUes, quibm oiia vendere
femper
Mos erat,
l^ foeda requiem mercede pactfci.
Thofe dreaded Foes,
Traders in Peace, and Huckfters of Repofe.
If between Nations or People, hitherto not
known to one another by Benefits or Injuries, by
Peace or War, any common Leagues are made,
without defcending to particular Points or Condi-
tions
i
fuch Leagues are fuppos'd to be entred on
for the Eftabiilliment of a Friendfhip, which is
reckon'd to imply a dofer Union, than is produc'd
by that general Peace of Nature. Or elfe we may
take them only for folemn Proteftations made by
both Parties, that they will for the future obferve
5 their mutual Oifices and Duties. In the fame
Manner as Perfons related, at their firfi: Meet-
ing, or iheii-
firil
Knowledge of one another,
are us'd to make loug
Declarations and Pro-
mifes to exprefs their mutual Benevolence
and
Love.
XII. After all, it muft be confefs'd, that this
natural Peace is but too weak and uncertain, and
fuch as, without other Affiftances, would prove
but a very mean Defence to the Safety of Man-
kind
;
fo that we might well enough exprefs, and
reprefent it in Ovid's Verfe ';
Pax tamen interdum
eft
;
pacisfiducia mmquam,
A Peace which all pretend, yet none can truft.
The Caufe of which Unhappinefs is the great
Wickednefs ofMen, their unbridled Luft ofPower,
and their Defire of encroaching on the Rights and
Pofleflions ofothers. When
Micipfa KingofA^z/-
midia^ in
Saluft
\
grew jealous of the growing
Vov^cr oijugurtha^
we are told the chief Things
that firighted him and fet him on his Guard,
were
the Nature
of
Mankind^ covetous
of
Dominion
and
Government^ and violently bent on gratifying its
De-
fires-j
and then the Advantage
of Opportunity,
which
by thefair
Hopes
of
Gain and Succefs, is able to
fe-
dticeMen to ambitious Practices, ivho were
other-wife
moderate enough in their Wifloes and in their Pur-
fuits. Indeed thele pernicious Charms of
Avarice
and of Ambition have taken fb fail: hold on human
Minds, that even the moll mild and gentle Doc-
trine of our Saviour Christ, which is perpetu-
ally inculcating the Rules of Peace, of Kindnefs,
of Good-will, of Propenfion to forgive Inju-
ries, of Humility, of Contempt of Riches ani
worldly Power; hath not been able to extin-
guilli the mcft unjuft Opprelfion?,
Treacheries,
and Wars amongft the Profefibrs of that holy Re-
ligion. So that Plutarclfs
'
Defcription will too
exacbly hit the Character of fome ChrilHan Prin-
ces, whofeDefires, not Seas, nor Mountains^nor De-
ferts, can
flop
arid conclude
;
not the Bounds which
feparate Europe and Afia can circumfcribe. irhen
fuch ambitious Spirits border on one another's
Pojfef-
fions,
it is fcarce poffible that they foould live
fat'isfied
with their proper Shares, and
abftainfrom mutual In-
juries andInvaftons. In
Effect they arc continually en-
gag'
dagainft each other. Envying and Plotting being the
necejfary Confequences
of
their "Temper. As
fur
the two
Names
of
Peace and
of
War, they ttfe them
juft
as they
do Money, not as they are determin\lby
Rcafon, but ac-
cording to
Cuftom
and Convenience. Nor AoihPater-
culus's Remark affeft only the Romans and Carthagi-
nians, when he fays
4, Amongft thofe People, there
was perpetually either a JVar, or a Preparation
for
War, or a deceitful Peace.
Therefore, as it is the
Duty of an honefi: and good Man to reft content-
ed with his ownLot, and not difturb the Portion
of his Neighbour either by actual Invafions, or by
covetous Defires : So it becomes a cautious and
wary Man, and one who has a true Care and Con-
cern for his own Safety, in fuch a Manner to be-
lieve all Men his Friends, as that they may foon
turn his Enemies; in fuch a Manner to obferve this
Peace with all the World, as a State which may
fuddenly be converted into War
^.
And the flx-
mous Saying of
Dionyftus Halicarnaffeus
s,
ihould
often run in ourThouglits: So long as wicked
Men
have the Power
of
doing
Mifchief, they cannot want
the Will. For which Reafon Euripides , tells us,
that a prudent
Diffidence is a
moft ufeful and advan-
tageous Quality: And that a wife Man ought 7
nei-
ther to ad like a Sheep, nor like a wild
Beaft, to
be neither tame in fuficring Violence, nor furious
in offering it
<:
.
7^Vw,indefcrlbing
the Manners of the Gfrz
^
Gomf.So^hod. Ajax.'Bhgtll. v.dll, c^c.
<
Add. Hohbes de Che, Cb.x'nl.
'Vid.deTriJl.
Lib. v. Elet.z. v.iu
5. 7, 8.
f'^'' \wi"'' ;^"t''''
""^^"^
"' * CUudmn's
CoufnUt. MallU. but thro' Miftake. St^Grotius, Lib.l Ch.ili. 'i
n.J:LT'l\ T i'"V
"o;.'-<:q";'==
of the other in Striftnefs,
or by virtue of any indifputable Right/ as ap-
pears tiom what our Author has laid a httle
before.
s
' " -'i
.
XII. Sahift. Bell. Jugurth. Ch.n.
Terrebat eum [viz. Micipfam] natura mortalium avida imperii, zy-pr^cebs adexilen-
cupidwem; pnterea opportumtas. /a*ak? rr /i/,.-ro, ^t^ti, n^ ,;^,yy,,^,or^^, .,;.... a.. ^..j.A...rS...r..
'.
I
'
-^
t'"-
'
.^";
^"- ^' veuiitnmur eos pofuioi \yiz.
Romanes, &
Eurip.
Helen, v.
1633, 1634.- Sol^fw-
>
aV.ria;
_
^
Oux. i^iv id'i) }f^f>iij-iiJt,aTtfo fipeTcTf.
The wf/?7T,inn
^^ "'
'"^f
''^"'
\'
'^
''"''i'-
.rf
^"Y'"-"'
h,
^"f'"-
We know not from whence thefe
Words are takenJ
>ne t^/{/o
Tiannator
attributes them to Ennpdes, but without any Certaintv.
Nations,
C H A
p. IL
Of
the natural State
of
Man.
Nations,
hath left thefc two Charafteis of the
Chauci
and the Cherufci^ very remarkable for their
Oppofition
**.
The former he calls a
moft
noble
People^
ivbo cboofmg to maintain their Greatnefs by
their juftice^
living in Secrecy and ^iet, without
Ambition^ and imthout Infolence^ by never inviting
IVar^ they never feel it
j
by never doings they never
fuffer
Violence and Spoil. And this is the principal
Mark
of
their Virtue and
of
their Power, that their
Superiority is not obtained by Injury. Tet they have
always Arms ready at hand
for their
Defence j
and
upon Occafion
could bring together a mighty Army :
And their Numbers
of
Men and Horfcs make them
fcmous and terrible, in the
midft of their
peaceful
Repofe. The latter, he tells
us, Ch.
xxxvi -were
too
fond of cheriflnng a long
and
a
decaying EaCe.
This ivas more pleajant to them
than
fafe For
amongfi flout and daring People,
'tis
never
the true
way to lie flill
;
and where
Men are
bufy in
ASlion
and Contention,
Honefly and
Probity
belongs
to the
Titles
of
Conqueror K thus the
Cherufci,
who had
once the Repute
of
Equity and
Juflice, now lie un-
der the Imputation
of
Folly and
Cowardice.
So true
is the Obfervation of Dio the Orator 1,
that thofe
who are
beft
prepaid
for War,
may
mofi fectirely
live in Peace.
^ Tactt.de Morib. German. Ch.xxxv. n,
^, <;,6. Populus inter Germanos nobilijfmm, qulcjue
magmtudinem
ftimn -/naUt iuf-
titiatuert-, fine
CHpiditate, fiiiempotentia, qii'ieti fecreticjue, nulla, provocant bella, nullh raptihus,
aut latrociniis popidantitr.
Uqite frdcipimm virtutis ac viriiim argumcntimi
eft,
quod, ut [uperiores agant, non per injurias
adfequantur.
Prompta ta-
inen omnibus arma, ac
fi
res pojcat, exercitus
;
plurimiim virorum, equorumque, ip- qiiiefcentlbits eadem
fama.
1 The faiue Author's Woi'ds are, Cherufci nimiam ac marcentem dm pacem inlaccjjiti nutrierunt,
idque 'jucundiHs quam
tutius fun
;
quia inter impotentes, (yTjalidos, falsi quiefcas, ubimanu agitur, modeftia,
^
probitas namina
fuperioris funtj Ita
qui olim boni iquique Cherufci, nunc inertes,
c/ ftulti vocantur.
'
"
Orat. i. Db Regno,
p. 6. Ed. Par. Morell. "Ort rcii xaAAis-a ^toXsp^sTy irxenrK^aa-iiiimi, T^roij
fj^iihiix s'lsriv imvisii uyir
CHAP. III.
Of
the Law of Nature in general.
The Contents.
I. 'The Connexion.
II, & III. 'The Law
of
Nature is not common to
Man and Beafls.
IV. 27;^? ObjeSl
of
the natural Law is not necejfa-
ry before there is a Law.
V, & VI. Whether the natural Law is common to
GOD and Man.
VII, VIII, & IX. The natural Law does not de-
pend upon-the Confent
of
Nations.
X, &XI. Whether
Profit be the Foundation
of
Law.
XII. Whether the Lavj
of
Nature appears plain
from the End
of
the Creation.
XIII. The Principles
of
natural Right are difco-
ver'd by the Light
of
Reafon.
I
Ince then it appears inconfiftent with the
Nature and the Condition of Man, that
hefhould live entirely loofe from all Law,
and perform his Actions by a wild and
wandering Impulfe, without Regard to any Stan-
dard or Mcafure
;
it follows, that we make En-
quiry into that moft general and univerfal Rule of
human Anions, to which every Man is oblig'd to
conform, as he is a reafonable Creature. To this
RuleCultom hath ^wenihc'i^zmto? naturalLaw,
and we may call it likewife the Law univerfal and
perpetual ; the former, in Regard that it binds the
whole Body of human Race, the latter, becaule
it is not fubject to change, which is' the Difadvan-
tage of
pofitive Laws. What this Law is, whence
the
Knowledge of it arifes, what are the chief
Marks
and
Tokens by which it is difcover'd, what
Matters
are to be referr'd to that, and what to po-
XIV.
XXI.
xxir
The true Original
of
the Law
of Nature h de-
rived from the Condition
of
Man.
XV. The fundamental Law
of Nature.
XVI, XVII, 6c xviii. HobbesV Opinion is enquired
into.
XIX. The former Original is
fufficient.
XX. The Obligation
of
the Law
of Nature is froni
GOD.
Of
the
Efiabliflrmcnt
of
the Law
of
Nature.
Some Things are
faid to be
of
the Law
of
Na-
ture reduEiively and improperly.
XXIII. Whether the La%v
of Nature is
different from
the Law
of Nations.
XXIV. A Divifion
of
the Law
of Nature.
fitive Conftitutions
j
are Points which require
the
more careful Examination,
becaufe if thisBafis and
Ground-work fhould be ill laid, whatever we after-
wards build upon it rauft fi^ll of Courfe. 'Tis' a
good Rule of Plato (in Cratyl,
p. zpp. Edit. Fran-
cof) AMan ought to be very
ftriU
andaccurate in ex-
amining the
firft
Principle and Foundation
of Things,
and no
lefs copious and diflinEi in explaining them
j in-
afmuch as
thefe Points being once clearly fettled, the
whole Scheme
of
DoSirine regularly
follows. And fo
much the more ought this Rule to be obferv'd in
our prefent Subjea, the more Truth there is in that
Remark of =
LaElantius, Lib.m. Ch.vW. p.zzJf
Ed.
Oxon. Becaufe in
framing the Manners and forming
the Model
of Life, it is the
highefi and mofl
fatal
Danger to
miflake ; we ought to apply the fritter Di-
ligence to the Study
of
our Duty. In this great Point
there is no Allozvancc
for Error or Difagrcement, all
Mr. Bakb. NOTES on Chap. iii.
>/ .''^^
P'-^le's
Words nre. Ail: (^^] zrfs* r ap/JW s-avTO; B-py;,T- van] ut^ft r tto^m Xiyet iTri, >^ T-ziv 5roiiif a-Kt-^D^
Lattanttus's
Words are, Et quoniam in difponendo vita
ftatu formandifq; moribus, periculo majori peccatur, majorem dili-
gentiatn necejfe eji
adhiberi, ut fcinmus, quomodo nos oporteat -jivcrc^ Hie -vera millus diffidio, nullus errori
eft
locus,'
omnes tmum [entire
opertet,
ipfamq; philofobhiam, tinoquaji ore prAcipere, quia, fi
quid fuerit erratatHtn, vita omnh evertitur.
ought
T
2
1 1
8
Of
the Law
of
Nature in general. B o o k II.
ouzht
to he
of
one Opmon.y
and to declare with a com- Beafts very much alike, on the Performance
of
nion Mouth the fame
Dotlrine : Since the
leaf Slip which the former are laid to have fulfill'd
the
tmy
overturn the Rule and Order
of
Living. To the Law
;
yet in Stritnefs and Reality they are ex-
fame Purpofe Diogenes
JpoUonias (in Diog. Laert. tremely different, fince they are done by Brutes
Lib. ix. Segm.
fj.)
Every Difcourfe,
in my
Judg-
out of fuiiple Inclination of Nature, but by Men
f?2cnt^ ought to take its Rife from fome
clear and ma- out of Obligation, of which thofe other Crea-
nifejl Principle
j
and the Style made ufe of
fhould be
tures have no Senfe. And therefore we muft fup-
fiain and grave.
poie Authors to fpeak figuratively, when they
IL The Roman Lawyers
defin'd
the Law of
attribute to fuch inferior and dumb Animals,
Ju-
Nature, to be that Lavj ivhich Nature teaches all
fticc, Fortitude, Pity, Gratitude, or Chaftity
j
living Creatures ; which therefore is not peculiar only becaufc they perceive in fome of their Pro-
to Man, but is apprehended and obfer\''d by other
ceedings the Shadow and Semblance of thefe Vir-
Animals. So that according to this Hypothefis,
tues
b.
For Things which feem alike in their ex-
thofe things muft be faid to belong to the Law of ternal Face and Appearance, are by no means the
Nature, which Brute Creatures either affect and fame, if they proceed from different internal Prin-
purfue, or avoid and abhor : Whence it naturally ciples. As for Grotius's Opinion <=, that fome
follows, that there mull be a Law common to Men Afts of other Creatures are difpos'd in an extraor-
and Beafts. Which Opinion it's likely might pro- dinary manner, by < an external Reafon or Princi-
ceed from that famous old Notion' about
^
the pie, as the Works of Bees and of Ants, and the
Soul
of
the J^Forld., of which all other Souls were a Frugality which fome feem to ufe about what they
kindof^-TzxTTTci^AtaTaorParticles,
being in them-
lijve got, for the Benefit of their Kindred and
felves all of the lame Nature, but exerting differ-
Off'-fprmg
;
this is allowable only if we mean by
ent Operations, according as they fell on differ-
it, that the Nature of thefe Creatures is in fuch a
ent Bodies, and met with different
Organs for
manner temper'd by the Divine Creator, as to be
the Conveyance of their Strength
and Powers,
capable of producing fuch Anions
;
not that any
Nearlyallied to this Fancy was the MgTeA'4'^V-""^,
outwardPnncipleviolently pdesand fteers them
',
or Tmnfmigration of Souls, according to which ^^ ^/'If
'^oth a Vedel. Nor is it difficult to un-
Men and Be^ils were thought to differ only in
dcrftand, why they do not dilcovcr the lame Cun-
their corporeal Figure, having Souls altogether of
"'"g m other Matters equally obvious; if we fup-
the flime Nature, and mutually lending to each
P"^e
with
<s
the new Philofophers, tliat whatever
other .
But the general Confent of learned
^'?''^ "rational Animals enjoy,_ ariles purely from
Men hath difcarded tliis common Law of animate
^hc Figure and Dilpofition of material Particles,
Beings : Inafmuch as it is impoffible to conceive
=^"d from the Variety of their Movements. Efpe-
how a Creature fhould be capable of Law, and at
cially fince even amongft Men we may find thofe
the Cime time incapable of Reafon. Hefml. Op.
who are extremely quick and ready at fome forts
&Dier. Lib. i
ver ayf.
Bufinefs, yet ftrangely dull and heavy about
'
'
'
' ^ others, not more difficult and abflrufe : Which
T S-\
^
i.(tp..T.<?, ir5> (A.v.^0 Vt|i Kfw/w,
(.^^ proceed from nothing elfc, but from the par-
'Mfu;7!>iFi
^'
Qaxs aUv, A s-o*'" 5'V
Braui and Spirits ^. Thofe therefore who will
r.'j-i
have a Laiv
of
Nature in Brutes, bccaufe they fee
This Law did fove
for human Race ordain :
them afting now and then with Ibme Appearance
The Beafts, the Fifhes, and the feathcr'd Train
of Regularity and of Defign
,
abufe the Term
He left to mutual Spoil and mutual Prey,
of Laiv, by an undue and unneceffary Applica-
But Jujlice gave to Men.
tion.
And altho' there are feveral Anions of Men and
Befides, there can be found no dumb Creature
Lil/. i. Ch. i. . 5. . I.
h Seehukcyt.
35,
*
Rom. iii. 4. Hcbr. vi. 17^18.
d
I Chron. xi.-c.
6, 7. Rom. ii'.
. VI.
*
Om- Author here breaks off his Difcourfe in a ftr.iiige M.inner, to confute a Writer which he had read over
in too great H.ifte. I'elthuyfen does no where make two dillinft Kinds of natural Ri^ht, one to which God i$ fubjeft
and the other to govern Man; but that natural Right which he calls divine, as well as that which he calls
human is
a Law only for Man. He has no Word that fo much as intimates, that he would eftablifli a Right common to God
and Men. He only endeavours to prove that the Law of Nature, which is taught us by Reafon, Ts really a divine
Law
and that God can't difpenfe with it, but he muft contradift himfelf, Co f-ar as the Conftitution of Things is fuch as
he himfelf appointed at the Creation of the World. This appears both bv the Coherence of his Bifcourfe,
and by
what he had before faid,
p. 51, 13. 1 had not minded to juftify this Author in this fecond Edition of my
Work, if I
had not forgot it in my firft. I know not how to read what lollov.s in the Oiiginr.l.
*
I know not what our Author means here, for thefe Words are not the Perfon's whom he confutes.
5 Nor is this Mr. Velthuyfcn's Conclufion which he aims at. His Defign was only to prove, that the Gentiles mieht
know very well, that by breaking the Laws of Nature they dilobeyed God, and (o deferved his Correftions, fo that
he might juftly punifli with Death any that had finned againft the Law of Nature. From whence it follows, that in
finning againfi the Law of Nature they finned againft the Law of God.
* Mr. VeUhuyfen- fays not the leaft Thing that tends that Way. He only afTerts, that God, notwithflanding his Al-
mighty Power, does nothing but what's agreeable to his Perfeftions. There is nothing, fays he,
of a worje Confeqtience
in religious Matters, than to teach that GOD does many Things wherein human Reafon can
fet no Jujiice. For,
if this
be
allowed, we deflroy all reafonable Worfliip ;
Men will be obliged to renounce the Vfe of
right Reafon. They mufi do and believe
in reference to GOD, Things contrary to the Light
of the cleareft Reafon, and conform to fuch Notions as to them are incredible,
Scc,
1 can't fee that Mv. Velthuyfen intends any other Neceffity here, tiian what is founded upon the Perfedions of
the
Deity, who permits us not to will the End, without willing at the fame Time the Means ncceflary to arrive at ii,
for
this is the Principle he ufes, as well as our Author, to difcover the Original of the Laws of Nature. See . 12. following.
.
vii.
^
Thi Creek oi Arijlotle is, <bu<rir.m
fO/^
aUaict to actinaxS t^v ccuTtivtp^ov clikj/av, li 8 tm i'oKi'iv,
n ^n. And aoajn
'E?!
Y^
i/jxtTivmral t( !ra>Ts?, (fuiri Knivay oixaiev,
1^
adijcon, xf fhnhf/jia, xoivuiia Ttfoi; aSi/Mi >)
/MOi iruv(r,XD.
See Cicero's
Tufc. ^fft.
tib.i. Ch.x'ni, xiv. The Confent of
ali Men in any Point, is to be efectfi'd a Law'
of
Nature. And again.
The
Confent of all Men is the Voice of
Niture^
Ch. X.
Chap.
TIT.
Of
the Law
of
Nature in
general
Ch. X.
calls thac natural Juftice^
which bears the
fame
Force in all Places^ and doth not depend on par-
ticular
Sentiments. And in his Rhetorick. Book v.
Ch.
xiii. he tells us, there is a general Right and
IFrong., or
Juft
or U'djuft.,
heliev'd and profefs'd by
all Men ;
although no Society jloould be inflituted
amongjl thera^ and no Covenants he tranfaUed.
Now. befides, that this Wayof proving the Law
of Nature is only a pofieriori =, and therefore can-
not fhevv the Caufe and Reafon of the Thing
j
fo
is it very flippcry and uncertain, and involv'd in
an endlcfs Maze of Doubts and Perplexities. To
appeal to theConfentof all Mankind, Mr. Hobbes
'
obfcrvcs to be inconvenient upon this Account,
bccaufe at this Rate it would be impoHible for a
Man, aftiially ufing his Reafon, to fin againft the
Law of Nature. Inafmuch as his Confent being
wanting, who is a Part of Manlcind, the com-
mon Agreement muft needs be maim'd and im-
perfect. Then again, becaufe it would not be fair
to gather the Laws of Nature from the Confent
of thofe who break them more frequently than
they oblerve them
'
. For, as Ifocrates
^
fpeaks,
It is a natural Misfortune which we all lie under.,
that we fbould more frequently tranfgrefs thanper-
form our Duty.
Nor will It be a more happy Way of arguing to
appeal to the Confent of all Nations. For, were
it pofTible for us to underftand all the Languages
of ancient and modern People, yet we fhould be
Hill fir enough to feek in the Knowledge of their
Manners and of their Inftitutions. We cannot
hit off this Difficulty by fiying, that the Confent
of the mofl civiliz'd Nations is fullicient, and that
the Opinions of Barbarians ai'c not to come into
the Account. For, what Nation, any Ways able
to manage and to prefen^e itfelf, will own the Ti-
tle of Barbarous ? Or what Nation can take fb
much on itfelf, as to defire its own Manners and
Proceedings fhould be the Standard in trying all
others, and that whatever People did not exaftly
conform to its Model, fhould be immediately
<
pronounc'd barbarous and favage ? Heretofore the
Pride of the Grecians cenfur'd all as Barbarians.,
who liv'd without the Bounds of their Country.
TheRomans afterwards fuccceded them, as well in
their Arrogance as in their Empire. And at the
prefent, fbme few Nations here in Europe have
the Vanity to prefer themfelves to the rell of the
World, in the Opinion of their own Civility and
Improvements of Living. But there are not want-
ing other People, who imagine themfelves to have
the Advantage of them in all Refpets : And 'tis
an old Proverb amongft the Chinefe, that them-
felves only have two E,yes, only the Europeans one,
and all the reft of the World are ftark Wind.
125
Some too there
are,
who fall foul upon our
Learmng, m profccuting
which we fpend fo much
good Timej they will have it to be no better than
a Prop, or a Crutch to fupport
and
affifl our Dul-
nefs
: Inafmuch as the good
Difpofition
of manv
Men carry them on to a natural
Innocence
and
Probity, without Improvement
or
Ornament
of
Letters
;
and bccaufe it requires no great
Clerk-
fhip to be an honefl Man. It is likewife too evi-
dent that high Attainments of Knowledc^e
are
not always blefs'd with the Attendance
of good
Manners or of good Temper .
Many Nations
we fee pride themfelves in the tedious Pageantry of
vain unnecefl-iry Things; defpifing thofe who lead
a Life of lefs Gallantry and more Simplicity. Yet
were we to feek for Innocency and Integrity, we
might, perhaps, find them much fooiier amongft
thele plain and unartificial Mortals, than amongft
their Itately and formal Neighbours. 5
'Tis a
fhrewd Remark of
;///>, Lib. i'l. Ch.'n. f peaking
of the Scythians; It
feems wonderful., fays he, that
meer Nature fJmuld give them, what the Grecians,
with the long Inftitutions
of
their
wife Men, and the
Precepts
of
their Philofophers could never attain
-,
and
that the
poUteft Manners fljould be diftanc'd and out-
done in the Comparifon with Barbarity.
Offo
much
greater
Benefit on one fide was the Ignorance
of Vice,
thaw on the other the Knowledge
of
Virtue. Vid. Va-
ler. Max. Lib. i. Ch. i. . z. Extern,
fc? Sext.
Empiric. Hypotyp. Lib. ii. Ch. v. where we meet
with feveral Things to the fixme Purpofe.
Befides, that fuch a Confent can be of no Force,
appears from this farther Refletion
; that the
Number of Fools far exceeds that of wife Men; and
that few Perfons have form'd their Opinions upon
a full Search into the Foundations of Things
> bur
-
moft Men follow on in the Track of others, and
yield an implicit AfTent to their Notions, without
applying their own Thoughts or Judgments to the
Points in Debate. Farther, altho' we have a to-
lerable AfTurance of the Confent of moft People,
at leafl as to the general Precepts of natural Law
5.
and altho' we may prefume on the Confent of the
reft, from the Principles of thofe who are better
known to us
,
yet it is more fafe to conclude
hence, what thofe Nations efteem juft and equal
amongft themfelves , than what they think fair
Ways of dealing with Strangers
j all whom
are
by Ibme People accounted Enemies, and treated
accordingly
^.
VIII. Tho' the common Ufe and Cuftom of
many Nations may feem to be alledg'd with more
Force for proving a Thing to be lawful or allow-
able, than for the proving it to be actually com-
manded by the Law of Nature
;
yet that we can-
not with any Security make fo much as the former
* He Che, tib.n.
. i,
^ Oral. adPhilipp. '
Plato Epift.-x. Firm Integrity, Faith, and. fnccre Dealing, this I tal-e
to be the true Philojophy.
<
Add. Montaigne's
EJfays, Lib. i. Ch. xxx.
2 That is,
not fiom the Nature of the Thing it felf, but from feme external Principle, as from the Confent of People.
* The Greeh is, 'A^^a y-t tvuvts^ TiXuta v^i^oxufv^'j i^tCfjt/ciPTeiv{v. i) xaroeSiv.
*
Charron reckons this among the foolifh Opinions that are in the World, to condemn and rejeft all Things,
Manners,
Opinions, Laws, Cuftoms, and Obfervances, as barbarous and evil without Knowledge of them, mcerly be-
caufe they
are not ufed by us, and are not thought proper for our Praftice.
Of Wifdom, Lib. i. Ch. vi. . 9.
Numb. i.
See alfo
Lib.W. C^. viii. and C/;. ii. . 5. Let the Reader further confult Mr. Bruyere's Charafters in his Chapt. of Judg-
ments,
p. 410. and he'll find fomething very ingenious and fmart upon this Subjeft there.
5 Jufiin's Words are, Prorfus ut admirabile videatur, hoc Hits naturam dare, quod Grxci longa fapientium doHrinn
pracepttfque
philofophorum
confequi nequeunt, cultofque mores incultA barbaris, collatione fuperari.
Taato plus in illis proficit
vinormn ignoratio,
quam in his cognitio virtutis.
This appears
elpecially by the Example of Two of the mofl famous People ia the World,
I mean the Greeks and Romans,
Szz Parrhajiana,
Tom.i. Page 102, 203. ztii^if. LeCUrc'sArsCr^tjca, Tom.l. Part 11, ;?. i. C/;. vi. .z,vc.
of
Of
the Law
of
Nature in general. B o o k
II.
iz6
Of j-jipfe
Conclufions feems probable from the great
Variety
and Contradiftion difcoverable in the Man-
ners and in the Inllitutions of the moft famous
People upon Record. So that we may well apply
to the prefent Cafe, that Saying of
Socrates ,
"TToAAB^ayapipwi'.io?*;
conftiltno very expert
Mafters^
when you refer yourfelf
to the Multitude for Iriftruc-
tion. To the fame Purpofe Plutarch
t>
obferveSj
that the Laws
of
Men are
vaftly
different, fomemak-
ing one "fhtng to he good^ and fome another : And
Tacitus's Defcription of an Army compos'd of va-
rious Nations, may ferve to reprefent the fame wide
Difigreement. Their Languages, their Manners,
their Defires^ fays he, are different; and while fome
will have one Thing to be lawful, and fome the con-
trary, amongft
them all, nothing can efcape as un-
lawful
<=.
To give fome Account of this Variety
by way of Specimen. Ariftotle
^
reports of fome
lavage Nations on the Confines of Pontus, that it
is cuilomary with them, to borrow one another's
Children, to furnilh out their Feafts. And thefe
People he prefently after calls Irrational, Wild, and
living only by Senfe. Eufebius, in his Book dePrx-
paratione Evangelica ^, reckoning up the foul Cuf-
toms and Manners which had been correfted by
the Doctrine of the Gofpel, amongft others, men-
tions the Pollution with Mothers and Sifters in
Perfta {which Diogenes Laertius
^
too takes Notice
of from the Authority of Socion) the eating of hu-
man Flelh, and the murdering of Children under
a religious Pretence amongft the Scythians : He
adds that the Maffagctts,
and the Derbices us'd to
kill their Relations when they grew very old, and
make an Entertainment with their Bodies
j
that the
Tibarcni in Cappadocia, threw their antient Perfons
down Precipices j
that the Hyrcanians call: out
their Dead to the Birds, and the Cafpians to the
Dogs, to be devoui-'d. Hither alfo may we refer
thole foul Watchings and other Ceremonies, de-
fign'd for the Honour of their Gods, but mixt
with all the licentious Practices of Adultery and
Lewdnefs j
as alfo the human Sacrifices barbaroufly
murder'd on their Altars. The fame excellent Au-
thor
8
gives the following Relations out of ar-
defanes^c Syrian. 'TisaLawamongfi
//;<? Gctulians,
that the Women
offer
their Bodies to whomfoever
they pleafe, efpecially to Strangers
>
and that their
Husbands jhall not accufe
them on thefe Accounts, or
pretend to cenfure them as guilty of Adultery. The
fame Liberty obtained
amongft
//jcBadtrians.- Where-
as, on the contrary, amongft
the Arabians, all Adul-
trejfes were puniffd with Death, and iffufpcUed on-
ly, underwent
fome leffer
Penalty. In Parthia and
Armenia it is provided by Law, that no Man flmll
be accusal for
killing his Wife,
his Son, his Daugh-
ter, or his unmarried Brother or Sifter. Amongft
the
Atrians petty Rohheries are punifti'd
with Stoning;
amongft
the Baftrrans only with the Ignominy
of
be-
ing publickly defiled
with Spittle. The
wife Men
of
Greece are not aftiamed
to court the Love
of
little
leautifiil Boys. In Britain many Men
poffefs
one
Wife.
In Parthia many Women belong to one Iluf-
band.
Sextiis Empiricus
^
the Sceptick, to fhew
that there is no Certainty in the Notions of
Honefty or Diflioncfty, hath raked up a great
Heap of thefe contradictory Cuftoms and Inlli-
tutions. But he hath ftumbled very fatally in
the very Entrance of his Defign, while he talks
in this Manner : Amongft
tis Pollution with the
male Se.-< is unlawful and abominable
j
yet
amongft
the Germans, as is reported, it is no Difgrace^
but rather a faflnonable
PraStice. For the Grecians
were fo fcandaloufly addi6ted to this unnatural Vice,
that Plato, in his 8th Book of Laws, thought
there was need of urging fome Reafons to prove
the Poffibility of reftraining it by publick Edifts.
And that the Boeotians, Sc.\-tus Empiricus's Coun-
trymen, ought not to ftand excepted from this Im-
putation, may be gathcr'd from a Paflage in Cor-
nelius Nepos'sLik oi' Epaminondas ; though perhaps
the vile Cuftom had ccas'd in thofe Parts before
this fceptical Philofophcr wrote. That it once
prevail'd there, he himfelf afterwards relates. But
what he reports of the Germans, is fo groundlefs a
Falfity, that 'tis wonderful how it fhould enter in-
to the Head of any one, who is the leaft acquaint-
ed with the Manners and the Story of that Na-
tion. He adds, that the Cynick Philofophers, and
Zeno, Cleanthes, and Chryfippus,
cfteem'd the fame
foul Enormity an indifferent
Thing. That fome
of the Indians thought it no Indecency to be fami-
liar with their Wives in Publick. That in feveral
Parts oi Egypt for Women to proftitute themlelves
was look'd on as a creditable Profeflion
;
and thaC
'twas ufualwith the younger Sort firft to get them-
fclves a Fortune by the Jilting
Trade, and then to
marry. That the Sioicks held it to be no U'rational
Pradice either to frequent the Stews, or to main-
tain one's felf by Pimping. That the Perfians con-
tracted Marriages with their Mothers, and the E-
gyptians with their Sifters : The former of which
Zcw maintain'd to be agreeable to Realbn
'.
That
Chryfippus permitted a Father to have Children
by his Daughter, a Mother by her Son, and a
Brother by his Sifter. That Plato allow'd the
Community of Wives. That 'twas a receiv'd Cuf^
torn with many of the Barbarians to feed on Man's
Flefh
>
which the Stcicks themfelves approv'd of.
That, amongft many others.
Adulteries pafs'd for
indifferent Matters. That the Scythians offer'd
Strangers to Diana; and kill'd their own Parents,
when they arriv'd beyond the Age of Sixty Years.
That by a Law of Solon:% at Athens, the Parents
were impower'd to put their Children to Death.
That the i2o/ Gladiators, after the Performance
of their Murther, receiv'd Honours and Rewards.
That Thieves amongft tht Spartans were punilh'd,
not for ftealing, but for letting themfelves be
catch'd. That the Amazons, if they happen'd to
bear male Children, willRiUy
made them Cripples,
to
prevent their Performance
of any manly Aftions
or
Exploits. He enlarges farther about the different
Opinions in reference to the divine Nature, a-
bout the Diverfity of religious Rites and Ceremo-
nies,
about the various
Manners of Burial, and
Plato Alcihiad. li
"
In Themi/lod- P^'hon. Hyfothef. Lib.W. Ch. v. p.
115.
^\.Wech. 'Hlft. 3.
i;i jii C/; xxxiy.
infin.
d
Ethic. Lib. vii. Ch. vi.
' Lib. i. Ch. iii.
f
Sa his Preface, . 7.
'f'h
Menage sAoles.
'
ff
;
>
'; i-^;" :
-Pyrrhor,.
Hyfothef.
Lib. iVi. Ch.xxiv. Ubid. Ch. xxin. ZenoV Speech, as there
reprejented, reacheth the htghefi Degret
of
Lcofenefs and Impudence. ^ .
^ i t,t
$.
vni.
'
But here he fpeaks of tlie Multitude or Populace, and not of the Confent of fevera N.u.ons.
^ Thefe Remarks n-ainfl Sextus Empiricus, ia favoui- of the Germans, comaui only an ufeloJs DigreHion, wh.cli
gpight well be fpaied, as I have done. ,
Chap.
III.
Of
the Law
of
Nature in
general.
the
abfurd
Procurements of Death *. 'Tully ^
re-
ports
that the Egyptians^ having their Minds over-
come by ivicked
Errors, -willfooner let themfelves be
cut in Pieces,
than they will hurt a Serpent, an
Afp,
a Cat, a Dog, or a Crocodile : And
if
they happen
umnuares to do any
of
thefe Creatures a Mifchief, they
voluntarily
undergo anyPimipment. Busbequius
'
in-
forms us, that Theft is an honourable Praftice a-
mongft the Colchians : And Fran. Alvarez that in
Abyfj'ynia
the Cuftom is, for the Thieves toprefent
a Part of their Booty to the King, keeping the
reft without Scandal for their own Ufe. Philo
Ju-
d<sus de T'emulentia, p. 108, lop. Ed. Genev. ' And
thefe
T'hings may give us IVarning not eafily to credit
thofe
Uncertainties, which being diffused thro'' almofi
the whole PForld, have thrown both Greeks andBar-
barians into common Errors
of
Judgment. I mean
thofe early Inflitutions, thofe national Cufloms, thofe
antient Laws, through the whole Sum
of
which we
cannot
find
one inzvhich all agree; but in every Coun-
try, People, City, Street, and even in every
Houfe,
the Men at leaf, differ from the IJ 'omen, and the
Children from
both. And indeed I do tiot wonder, that
a confui d and mifcellaneous Rabble, meer Slaves to
Laws and Cufloms,
however introduced,
inufdfrom
the Cradle to yield Obedience to them no
lefs than to
Maflers or 'tyrants, and having their Mind cow''dand
broken by Severity and Blows, and not able to afpirc to
any great and manly Attainments, Jljould believe the
Traditions they receivedfrom their Ancejlors, andlet-
ting their Reafon lie without
Ufe
or Exercife,
affirm
1things,or deny them unexamin'd and unobferv'd. But
Icannot forbear
wondering at the Philofophers
j who,
luhilfl
the greatefi
Part
of
thempretendto hunt
for the
real Truth and Certainty
of
Things, dividing themfelves
intofo -many Troops andOrders,pronounce
of almofi eve-
ry Matter, great or fmall, ever with Difference, and
often with Contradi&ion. Add. Montaigne's
Eff.
Lib. i. Ch. xxii. and Charron
of
JVifdom, Lib. ii.
Ch. viii. .
4,
7.
IX. But that Notion of extracting the Law of
Nature from the Manners and Cultoms of the
World, is accompanied with this farther Inconve-
nience
>
that 'tis almoll impoflible to find any Na-
tion, which is
governed purely by natural Law
j
but every Country hath its own particular Laws
fuperadded, either in Writing or otherwife; to be
made ufe of when the People have any Bargains or
Tranfaftions with their Fcllow-fubjeds. And
many times Affairs in Debate between whole Na-
tions, are decided either by civil Law common to
both, or by the Law of Nature, as it is not na-
ked, but cloath'd, as it were, with many pofltive
Additions. So that it is no eafy Matter to diftin-
'
Add. Ti'iog. Laert. in Pyrrho, L'lb. ix.
'Thalia,
p.
112. Gr. Edit. H. Utefh.
guifh what thofe
Nations
admit for natural Law;
and wliat for pofitive and civil.
We may add to
this Confideration, that mecr
L'le and Cuitom
when it hath born a long, and an
unqueftion'd
Sway
frequently puts on the Face and
Semblance
of na-
tural Reafon. 'Tis
manifefl, fiys Agathias
^
that
whatever Law or Infi'ttution hath obtain'd thro'
along
Courfe
of
Time
arnongft many People, they
certainly
cry it up
for mo
ft
excellent and mo
ft
equitable ; and
if
any Thing be attempted contrary to it, this they
rejeSl
as ridiculous, and unworthy
of
all Credit and Allow-
ance
.
We havea famous Example to this
l-*urporein
Herodotus
. Darius, for Experiment's fake,
put
the Queftion to the Greeks, who were under his
Command, what Sum of Money he fhould
give
them to feed on the Bodies of their deceas'd Pa-
rents,^ after the Manner of the Indians. Upon their
Refufal to comply onanyConfiderations, he ask'd
fome of the Indians,\vhM they'd take to burn their
dead Parents after the Grecians Fafhion, and not to
eat them : But they fetting up a general Outcry^
defired the King to have better Thoughts of them.
Befides, to have been inur'd in any Opinion from
one's Infancy, is fo forcible a Prepoflt-fiion, that
altho' the Opinion be falfe, yet it fcarce enters in-
to any Perfon's Head to queftion it
;
at leaft it paf-
fes with an uncontrol'd Currency, arnongft Men
of vulgar Parts and Capacities. '
Ariftot. Problem.
. 18.
^. 6. Thofe Things which Men have at
firfi
made Choice
of,
and to which they have been
accuf-
tom'd, in thefe they are not able to 'judge
for the bet-
ter. For their Mind is already corrupted by evil Pre-
judices and
Prepoffeffion. Cicero. Tufc. Qu^ft. Lib.
iv. Ch. iii. Some Perfons are tied and
refirain'd in
their Not'ions,
before they are capable
of
judging what
isbefi, and afterwards, in the
weakefl Part
of
their
Age,e'ither
follow'ing the Op'inions
of
fome Friends, or
taken with the Speech
of
the
firfi Mafter
they have
heard, theygive their FerdiSls on Po'mts which they do
not in the leaji underfiand, and being carried with the
Violence, as it were,
of
a
Tempeft, to fome particular
DoEtr'me or Seel, they cleave to 'it as
if
they were hugging
a Rockto favethe'ir Lives. And a httle after, / know
not how it comes to
pafs,
that
moft
Men had rather con-
tinue in a
Miftake, and quarrel and
fight
in
Defence
of
an Opinion which they have once lov'd andembraced,
than to examine without
Obftinacy or Partiality,
what
is deliver'd with
moft
Agreement on all Sides. Add.
Mich. Montaigne's
Eff.
Lib. 'i. Ch. xxii.
PhiloJud.de
Abrahamo
p. 194. B. Ed. Genev. Inveterate
Cuftom
ufually bears as much Force as Nature
itfelf. To
the greateft Part of Mankind we may apply Sextus
Empiricus's
Saying, they follow the
ufual hFays
of Life without Thought or Refleclion
f.
And
b
Tufc. SUf/iJl. L'lb. V. ch. xxvii.
'
Epifi.
^
Pyrrfjon. Hypoth. Lib. iii. Ch.\x'\\.
^ Lib. ii. Ch. xx.
* Ph'llo's Greek is, 'ExiT J' ijK.S? is KHfa.Y.a.Xa ^hr, xiat tdZ; i.<pt'iiri ^foai'^iojv, a, ^iSlit > xxtrm tw iiy.tstS/jin aiXxi^vTUi,
xoiKV "Ei;(ri ofC/5
i^ fia^Sa^oii st^u'/cv-x tuv (m t5 Kfltiv iAic&ei/ ; nvn a thut' if\' i ccyayal ^Jiprndv ul cm ^al^av, y^ 'lin xii-
.vd'fac fu^
ilia.
_
ciKixt iKurmy avjffa /O^j nv Kj yvixMci. >C, n.Ttioi 7Sit.\&a, rot'i i^oi; i\.x.iy.^iri- to. yh ai'^pa
xaf' iiyjh i-ripen, xaAcs, iC. rk Vfi-
!ro>, is^sT?, >i -r'a iUciM, uiixx- 'Ey'a
<?'
b TiSciufjiscKa. ti <rvfjk7!i<poftifB/ioi k, fhiync, ix>-'"<
i^^i ^ v'o^m T oTiua-'iv ilmyfbt-
fc it>.!i;5 oSAoc, t' aijTui sri <rT.a,^yaim /mh Trxfaniiit [for fo it ought to be read, inftead of tiy-iivj iii av Sitr^xaTaa n
Tvfunuv, (Ui.fi,x6uv, xaraxiiceviuMr/Sjiei, tki ifvyj,?- r^ f>,iyx. v^ viansov <f}eir^f/,x ?LxQiiv jW/i) ivyx/^oc,, TTi^wi loii, t|
7:a^xioiiTiy
vcixo.x
<pxs>ix<;-ss-^txiff^ii- TW)i's Words are. Nam cteri pr'imhm ante tener.tur adfiriHi, quam, quid ejfet optimum,
juJicare
potuerunt -. de'mde
infirm'ifimo tempore utatis aut obfecuti am'tco cuidam, ant una alicujus, quein prtmum audierunt, orat'ione
capti, de rebus
'mcognitis judicant, a-ad quamcunq; fufit difciplinam
quafi
tempe/late delati, ad eam> quafi
ad faxnm, adhere/cunt.
* S. Emfirjciu's
Words are,
'
E^siat
^
<ro|V5 tj fitt^rutj rnfirir
Eurip'des's
'
OJ
tie Law
of
Nature in
general. B o ok IL
128
i Etiripides's
Obrervation is no lefs true, that the
^traditions
'which tve
received
from
our Parents^ and
which are grown up ivith us, no Reafon can con-
fute,
no Strength
of
IVifdom
can over-rule ^ To the
flame Head we may refer that Text of the Apo-
flle, I Cor. xi. 14.
and that Remark in Plato, in
his feventh Book of Laws, that our ufing one of
our Hands more readily than the other, proceeds
purely from Cuftom : Inafmuch as Nature equal-
ly favours both. Amongll many People Honour
and Refpeft are meafured by the Length of
Beards
''
5
whereas, on the contrary, the greateft
Part of the Americans think it a brutifli Indecen-
cy to appear with any Beard at all '.
But all this while, we do not afcribe fo much
Force to Cuftom, that it fliould be able in fuch a
Manner to deprave and feduce the Judgment
of
Reafon, as to render the Truths concerning natu-
ral Laws impoffible to be apprehended
''.
X. This ftrange Diverfity of Laws and Manners,
by which moft Nations in the World contradid
each other, hath, without doubt, been the Occa-
fion why fome Men have aflerted that there's no
fuch Thing as natural Law, but that all Law firft
arofe from the Convenience and the Profit of par-
ticular State?;, and is incapable of any other Mea-
fure. Thus Horace, Serm. Lib. i. Sat. iii. v. p8,
III, ^c.
Atq^-, ipfa
utilitas, jtifii
prope mater ^
aqui.
Jura
invcnta meta injujii fateare necejfe eff,
"Tempora
fi
fajiofq;
velis evolvere -mundi.
Nee natura poteji jujio fecernere iniquum,
Dividit ut bona diverfts, fugienda
petendis.
Of Mother Profit, Juft
and Right were born.
Turn o'er the mufty Annals of Mankind,
And you'll confefs that Laws were firft enjoin'd
Thro' Fear of Wrong: Meer Nature never knew.
Or Good, or Bad to fhun, or to purfue.
Ovid Ep. HerOld. iv. v.
131,
i^c. makes his
Pboedra declare her Mind to the iame Purpofe.
Ifla
vetus pietas avo moritura futuro^
Ruftica
Saturno regna tenente
fuit.
Jupiter ejfe piumftatuit
quodcun^;juvaret.
That Thread-bare Virtue only held its Sway,
Whilit heavy Saturn rul'd the Sons of Clay.
Jove
broke the dull Reftraint >
by Jove'^ Decree
Profit is made the Teft of Piety.
Photinus's
wicked Counfel in Lucan, B. viii.
1;.
488. Etfeqq.
proceeds on the fame Principles.
Sidera terra
Ut dijlant, 13 f^amnia mart-, fic
utile reElo.
Sceptrorum vis tota perit,
fi
pendere jufla
Incipit ; evertitq-y arces refpeSlus honefli.
Libertas feelerurn efl,
qua regna invifa ttietur.
As Fire from Water, as each heavenly Light
From Earth, fo Profit
ftands remov'd from Ri^tt
If nice Regards to Faith and Truth are ihewn,
Your Scepter drops, and you unhinge your Throne.
The Way to fix all hated Reigns has been
To grant a general Liberty of Sin.
Arifiippus too, and Pjrrho in Diogenes Laer-
tius
%
deliver themfelves very grofsly concerning
the Origin of Juft
and Unjuft. But of all the
Antients nonedifputed this Point fo largely as Car-
neades is faid to have done. His Arguments, as
Ladantius
' hath contrafted them, are
'
to this Ef-^
feft : That Men firft inftituted Laws to fecureand
to promote their own Advantage
j
whence they
came to be fo various according to their different
Manners, and different Times ; but that there was
no fuch Thing as natural Law in the World. That
Mankind and all other anmiate Being";, are by the
Guidanceof Nature, carried on to the Purfuit of
their own Profit
>
and that confequently there can
benoJuft;ce> or, ifthcicbe, that it muft be the
highell Folly, inafmuch as it would make a Man
injure himfelf in confulting the Conveniences of
others. That all Nations famous for Empire and
Command, and the Roynans themfelves, who then
reign'd Mafters of the World, if they would be
juft, that is, if they would reftore every one his own,
muft return to their anticnt Cottages, and to their
primitive Poverty
".
In clearing up thefe Objec-
tions, it will not be amifs to begin with 7;<///s Re-
mark, in his fecond Book of Offices, CZ;. iii. *
Profit-
able, fays he, is a f-f^ord, which by the Corruption
of
I'ime and Cuftom is perverted infenfibly to the Signifi-
cation offomeivhat that maybe feparatedfroniHonefty
j
fo
as to make fomething boneft
ivbich is not
profitable,
and fomething profitable
without being
honefi : AnEr-
ror
of
the
moft
pernicious Confequehce to the Life
of
Man. Onwhich Account, in his third Book of the
fame excellent Work, Ch. iii. he tells us, that So-
crates us'd to curfc the Authors ivho
firft
divided
thefe
Names in Notion and Opinion, which were in Nature
fo
infeparably united. For thofe Alafteis of falfe Poli-
ticks cheated the heedlefs Vulgar with the ambi-
guous Term of Profit
>
which is of two Kinds, as
'
In Bacchis. -y.ioi, &c.
>
Vide Arrian.Epiflet. lit. ii. Ch.wi.
' Vide Rochefort. Defcript. Aniill.p. i.
Ch. viii. . 6. & Ch. ix.
i
Add. Selden de
J.
N. 5c G. fecund.
Hebfios. Lib. i. Ch. vi. ' See Book ii. ard
Bookix.
^
Divine Injlhutions, Lib.v. Ch.x\i\.
Add. Grot. Prole^om. N. i6. Sec.
'
Euripides'i Words are, Harfo? vufct^o^^aii,
'urr6' ijj,iiAi>'.;
xf^V
K!tT,9', aj^i? auTct >cTteAir A070;,
Gi/J' ti ^! axfar to ircpat ivf^lai ^fivan.
'i
St. Paul in that Pl.Acelhews us only the Power of Cuftom, which is fo ftrong, that Nature it felf taught the Corinthi-
ans,
that if any Man among them wore long Hair, it was a Shame to him. whereas if Women had long H.iir, it was ho-
nourable.
M
// ; }
r
-^
. X
. '
La^antius's Words are. Ejus [i. e. Carneadis] Difputationis hic fuitjumma : Jura jibi homines pro utUitate
[anxsjjei
fcili'cet
varia pro moribus, O'
apud eofdem pro temporibus
f/pe
mutata -, jus autem
naturale nullum ep. Omnes
c/ homines er
alias animantes ad utilitates [uas, natura. ducente, ferri : proinde aut nullam ejfe
jujlitiam
;
autjijitaiujuajummam
ejfe ftultt-
tiam. auoniam jiii noceret alienis :ommodis confulens Omnibus populis, qui florerent
imperio, V Romanis
cfuoq; ipfs, qui
totiu'sorhis pctircntur, fi
mjli TJelmt ejfe,
hoc efl. fi
aliena reflituant, adcafas efe
redeiindum, C^in e^eflate csr miferiis jaiendum.
5 Ti;/ij"s Words are, '/ quo [verbo] lapfa
confuetudo deftcxit devia, fenfimq;
eo
dedutia efl, ut honeflatem ah utilitate fecer-
ntns, CT- conjlituerit honcflum ejfe
aliqmd, quod utile mn effet. O" utile quod non honeflum, qua nulla pcrnicies major hominum
vit/t potiiit adferri.
_ . .
n
-rr
Again, Itaq; accepimus, Socratem txecrari fol'mm m, qui primum h*e natura cohnrentia opiniont diflraxipnt.
iC
Chap.
HI.
Of
the Law
of
Nature in
general,
129
it is rated by two
different Principles. One fort of it appears to have been their chief End and Defign,
Profit
is that which appears fuch to the deprav'd to hinder Men from fquaring
their Actions by fo
Jud'Tmenc
of ill compos'd Affeftions
;
thele being falfe a Meafiirc. Foi-, fhould any one refolve to di-
mov'd
chiefly by prefent and tranfitory Advanta- ret all his Proceedings to his own
private Advan-
ces, and very httlc folicitous about future Con-
tage, without any regard to the reft of
Mankind;
cerns.
+ The other and the true Profit is ad-
lince all other Men might as well take
the fime
judg'd fo by found Reafon, which doth not only
Courfe, there could not but arife the
deepeft
confider Things at hand, but weighs and exa-
Confufion, and a kind of War of all againft all,
a
mines the Ef^'e6ls and Confequences which they
State
"
the moil unprofitable and the moft incon-
arc likely to produce. Which therefore muft pro-
venient in the World. On the contrary, it is very
nouncc that alone to be truly profitable, which is
manifcft,that he who, byobfcrving the LawofNa-
univerlally fuch, and which gives AlTurance of
ture, endeavours to win the Affedions and the good
Conilancy and Duration , but can never judge it
Grace of others, may conceive much furer Hopes of
a dcfirable Thing to enjoy a momentary Advan- Profit attainable by their Afiiflance, than he, who
tage, drawing after it a Train of endlefs Mifchiefs. crufting to his own fingle Power, takes the Liberty
'Tis a moft unhappy and a moft dangerous Plea- of treating others as he lifts
=.
Nor is it poffible
fure, in the Heat of a Fever to relieve ourfelves for Men to frame a Notion of any Profit,
which
with cold Water, which will be fure afterwards to
will be their own Peculiar, or to which all Menwill
redouble our Tortures. Aftions perform'd in Con-
not have as good aTitle as themfelvesj fince Na-
formity to the Law of Nature have a double Ex-
ture hath never given any Man fo large a Privilege,
ccUency, not being only Houcjl^ that is, conducive as to let him exercife any kind of Right againft o-
to the Prefervation and to the Increafe of the Ho-
thers, the Ufe of which they are not allow'd to
nour and the good Credit of Men
;
but likewife turn again upon him. Therefore 'tis a great Mi-
Ufcful
and Profitable^
promoting their Intereft and
ftake to fanfy 'twill he profitable to you, to take a-
Advantage, and contributing largely to their Hap-
way, either by Fraud or Violence, what another
pinefs. And this latter Qiiality is fo far from be-
Man hath acquir'd by his Labour
'*
j
fince others
ing an unworthy Attribute of Virtue, that even in
have not only the Power of refifting you, but of
Holy Scripture, i 'Tim. iv. 8. Godlinefs is faid to be
taking the fame Freedom with your Goods and
profitable to all things.) having both tbePromifesof this Poflcflions. And you have as little Reafon to think
Lifie
and
of
that -which is to come. Ontheother hand,
it will prove i?i^i^(?/fl^/ow to you to break yourFaithj
thofe Actions which contradift the Law ofNature, fince your own Example may be made ufe of to
are always bafe and difiooncfi^ and tho' they now and your own Prejudice. Ifocratcs \x\Areopagitic.
p.
x^z.
then bear fome Appeararxe of Profit and of Plea-
t
Theyjudge
thofe who break Faith and Contracts, to
fure, yet thefe Charms are quickly over, and never injure the Poor more than the Rich. The latter.^ by
fail of being attended with a more confiderable loftng their Dependents., could
fuffer
only
fome little
Croud of Evils and Misfortunes ^. ' Tully in his Damage in their Revenues. The former.^
if
they were
firft Book of Offices.)
Chap.
4.
talks admirably for thrown
off
by their Patrons^
whofe Support
andAf-
our prefent Bufinefs. Betwixt a Man and aBrute.^ fiftance
they continually needed^
muft
be reduced
to ex-
lays he, there is eminently this Difference ;
the one treme Indigence andMifery.
^
The fame Orator, in
is carried on by Senfi^
and to that only vjhich is pre- Orat. dePace,
p. z8f.
Ed. Parif. placeth the chief
fent,
with little or no regard to what is either
paft
or Strength and Foundation of all his Advice to his
to come: Whereas the other^ by the
Benefit ofReafoti.,
Countrymen, in this Principle, that there is more
fees
the Confequence
of
Things ; their Rife and their Gain and
Profit in a peaceful Competency^
than tn a
Progrefs., and couples together Caufes and Effects; needlefs Purfuit
of
Abundance. Thwt
Juftice is much
compares Rejemblances
of
ASlions and Events
j
tacks more eligible than Injury^ and the Care
of
their
the prefent to the future ;
and
fo
taking in his whole own Poffefilons^ than the Deftre
of
other Mens
=.
Life
at a View., he prepares 0.11 Things neceffary for
'
Nor lliould any prelume fo much on his own
theUj'e and Comfort of
it. Therefore 'lis fo far from Strength and Power, as to imagine that others will
being true, that Civil Laws were firft inftituted for not repay him with fuch Ulage as they receive
the lake of this momentary and baihu'd Profit, that from him : For all true Power arifcs from a Con-
'
Marc. Antonin. Lib. vii.
. 74. Thofe AH'tons are profitable or advantagious, which are agreeable to Nature. >
See Pi'ov.
XX. 17. v.5,4. ix.17,18. xxi.6. '
Add. D.Cumberland, Chap. a.
.29. . 2.
<*
5fe Piov. i.
13,14, C^c.
^
Which
Afleition he afterwards proves at large, and which is much more to the prefent Purpofe than that above-mention'd by
our Author.
*
As theObjefts which are near us are commonly efteemed greater than thofe vaft Bodies that are at a Diftance ; fo
Li refpeA of Good and Evil, the prefent have the Advantage, and, in Coiiiparifon of thofe that are at a Diftance, are
always the greateft : So the moft ofMen are like prodigal Heirs, believe a lefl'er Good in prefent preferable to the Re-
\erfion of a greater ;
and fo for the prefent PoflelTIon of a fmall Thing, they'll part with a large Inheritance which
would certainly come to them. This proceeds from a falfe Opinion. Everyone ouglit to know, wherein confifts his
Pleafure, tor what is abfent now, will one Day be prefent certainly, and then having the Advantage of Nearnefs, he'll
fee Things at their juft Proportion, and fo prevent in Time the unreafonable Eftimate he has fet on them by reafon of
the unequal Meafures. M.v. Locke's Ejfay oj the Underjlanding, Lib. ii. Chap.xxi.
. 93. See alfo, what goes before and
follows.
'
Sed inter homineni is" belluam hoc maxirne intereft, quod hic tantum, quantum
fenfu movetur, ad id folum,
quod adeft,
quodque prafens
eft fe
accommodat, paululum admodum fentiem pr.tteritum aut futurum. Homo autem, quod rationis eft
par-
ticep!, per qiiam confequentia cernit, caufafque reriim videt, earumque progrejfus v quafi antecejfiones non ignoral, Jimilitudi-
T.ii comparat,
c/ rebus prfentibm adjungit, atque adneilit futuras, facile totius -vita curfutn videt, ad eamque degendam pn-
fann res
necejfarias.
^
Of the Word /Hf;/;;, fee Note i. on .9. of Chap. ii. of this Boo/:.
' This Palfage of i/ocrrt^ci is nothing to our Author's Purpofe, as anyone maydifcern at the firft Sight.
T/,r i/i/j io-i^j^ioiv <iipAijiiiuTif t^ x.ificiXiUTifct.y ami T^ iToAt/3-fj]/0(rw>l?, r'tit
3
^ixuioo-uvlai r <iiAxi5, fnv
ij
T i^.uv tfrtf/ifXltii "f ?
9 "
There are more Men that poifon, fteal, ajid cheat us, than there are againft whom we can commit thofe Crimes.
"
Every one is more liable to be offended, than offend; for among Twenty Perfons that are Equals, it is manifeft
" every one of them has lefs Power againft the Nineteen, than they againft him.'' BayU's Dii. Hift.crCrit.Tom.iii.
p. 2745.
Col. 2.
S jundioQ
I ao Of
the Law
of
Nature in general. Bo o k
IL
iunftion
with other Men, whom 'tis impoflible to and JJfurance
of
general Profit
j
for while it takes
Jceep
tocfether by your
fingle Force. So that if Place by the Univerfal Confent
of
all Parties,
there
that falle and fpurious
Profit were to be the Mea-
fure of all our Proceedings,
the Life of the ftouteft
Mortal would be as often in Danger, as it fhould
feem profitable to any one to rid him out of the
Way : And whoever took fuch a Courfe, would
only fet a fatal Pattern, and chalk out the Way
to his own Deftruftion.
On the whole Matter
then, not Juftice, but Injuftice is really the highell:
Folly; which, tho' it may feem to fucceed for the
prefent, yet is neither general nor lafting
;
and
tends to the Diflolution and Deftruftion of human
Safety
;
Men being chiefly
guarded and fecur'd
from Dangers by Society and by
Friendlinefs. Nor
will this hold true only of
particular Men, but
likewife of whole States and Communities
;
there
having never been any
Commonwealth fo power-
ful, or fo well eftablifh'd,as not fometimes to ftand
in need of their Neighbours Affiftance
>
fince no
fingle Kingdom could long bear up againft the
united Forces of a ftrong
Confederacy.
^inElilian obferves
'
that an /// Example can
never be truly advantagiotts
;
for
tho'' it maygive fame
Delight as the Occafion
now flands^
yet it afterwards
draws on us a heavier Load
of
Mifchiefs.
It is im-
pjjible, fays Demofihenes,
Olynthiac. 2. to obtain any
firm
and durable Power by Injuries^ by Perjury, and
by Lies. Epicurus himfelf, in his Notions of
Ju-
ftice, was very honourable and very fair, as
GafJ'cn-
dus hath given us this fhort Reprefentation of
them ' . Jufiice not only never hurts any one, but,
on the contrary, always carries along with it
fome-
thing conducing to the Eafe
and 'tranquillity
of
the
Mind ;
which it likewife farther fupports with the
Hopes
of
wanting nothing that nncorrupted Nature
can defire.
A Soul where Injujlice hath taken up its
Seat, cannot but be in perpetual Diforder and
Confu-
fion,
whilfl when it attempts any thing with never
fo
much Secrecy, yet it hath no Jfjurance
that the Fal
will ahvays be undifcover'd. And fince Jufiice
is tle-
fign'd for
the Promotion
of
the common Good, ifs
plain that nothing can be
jufi
which doth not tend to
the Advantage
of
whole Societies, and
of
each Mem-
ber in particular. And becaufe every one by the Gui-
arifes this common Advantage, that Men do not mu-
tually give and receive Injuries, but live in Peace and
^ietncfs together
j
which as it is good and
profita-
ble,
fo
doth Nature incite every Man to embrace and
to purfue
it. Tho' it it muft be obferv'd
by the
Way,
That what Gaffendus afterwards
delivers
a-
bout a different Profit, among different
Peifons,
and about a variable Jufiice, mufl not be admitted
in regard to Natural Law, but only to Civil
Conftitutions. Diodor. Sicul. Lib. xxv. Eclog. i.
Epicurus, in the Book which he calls Settled No-
tions, affirms, that a Life led according to
Jufiice
is free from all trouble and Difquiet ; but that In-
juftice
is full of
Difturbance and
Difquiet. Lu-
cretius, Lib. V. iij*!, 8cc,
Circumretit enim vis atque injuria quemque,
Atque unde exorta
eft
ad eum plerumque revertit.
Nee facile
eft
placidam ac pacatam ducere vitam^
^i violat faSlis communia fcedera pads.
Becaufe
diffufive
Wrong can fpread o'er all,
-^
No State's fecure
;
nay, oft' the Wrongs recoilC
With double Force on the Contriver's Fall. j
Nor can thofe Men expeft to hve at Eafe,
Who violate the common Bonds of Peace.
Mr. Creech.
In fhort, any one is able to judge what a Con-
tradiftion it is almoft to common Senfe, to make
fuch a Profit
as is oppofite to
Jufiice,
the Standard
of Afting.
I
The Sophifl Protagoras in Plato.^
p.
22f.
Ed. Fran.Ficin. though a Trifler in other
Matters, yet had Wit enough to fpeak fmartly on
this Point. In other Habits, fays he,
// a Mart
pretend, for
Example, to be an excellent Piper, when
he doth not underfland a Note, he either
raifies the
Laughter or the Indignation
of
thofe that hear him
;
and his Friends ad'monifio htm
of
his Madnefs and
Vanity. But the Cafe is quite otherwife in Injufiice.
For
fuppofe fome Perfons know another to be really
unjuft,
yet fhould the Man himfelf confefs that he is
guilty
of
that Vice before Strangers,they would take it
for
granted, that he was out
of
his Wits
; maintain-
dance of
Nature, defires anclpurfues what is good for
ing that fuch a Wickednefs is never to be difcovefd,but
him, it is neceffary, that whatever is
juft
fiwuld
be the contrary Virtue always to be pretended to,whcther
according to Nature, andfioovM therefore be caWd na- it be really praxis"d, or not. Not to counterfeit
Jufiice
tural. And this
Juft
ice is nothing elfe
but the'Pledge therefore they take to be a
fenfelefs Extravagance
{fince
"
Syntagm. Part iil. Ch. xxiv. & xxv. Vide Ciceron. de Tin. Bonorum V Malorutn, Book i. Ch. xvi.
Nunquamfrodeft malum exemplum, etiamfi Inprafenti occajione qtiadam ddeHat, In futiirum tamen altlus nocct. Declam.
2.5 5,
Ob eVi', ii " At^'cii A(ivjToi, i^ixSvia, xui iato^KSiw, xcci ^.^u^ofSfjov
iuw/jbit /3ioaia xltiim^.
'* *
<^ raXf 'a>lkctii anTcSi (irs'ff <ru ^yi'/ii)
iccv ti?
^jf
<iy<c? uvXtnm uMt vi !! imni Ti^ny,',
'
fti) fVi, xcclays-
Xciirtv, ^aXiTTXiidirt, cj i clxtTci zrfociivTii nshtitriv ai finiivifo/jet. c
^
o'ix.atcirut^, x^ c* ri) ^i( aroAiTix;'! cifir^, iarn rox
xai ii^ixriv, oTi ahu.^ fVi'> ' st" uvtci; xai' cturi TaXribn Asyi) ctiamm zre\uii, o ixtt o-oipfort/W iySvre tivui, TiiXiifi ytyiv,
ciTaZia, ///uviccv, y^ (fad 55->l5 <J\r ^diut tiVai S^y-aiXi idv ri atnt, itlt Tt
fj^ri, foaiH^ T ^^n srfsa-TreitsfO/tot cituiea-myiv, ai? -
vayKaioii iS'im, ovjiv' kjj /<atr-/iTW? /JUirijci' nuriji, ti ^n
fiVi ci titSftDTron. But I do not fee how this P.lfThge and the
following one of SUtin'fil'ian make for oiiv Author's Purpofe, fince they only prove the Maxim of the Duke of Rochefoucaut,
That,
HypocrKy is .in Homage which Vice pays to Virtue. Moreover, there is not anything that can prove, that Profit
may be oppofedto Juftice, and any Man's private Intereft to the I'ublick. I fhall alledge fome more pertinent Authorities
to this Purpofe, outoi'Seneca:ind Arrian's EfUletus. Seneca's \ffords, Epift.^i.
are. Nee
poteft quifqitam beate degere, qui
fe
tantum intuetur, qui omnia ad utilitates Juas convertit : alteri vivas oportet,
ft
vis tibi viverc. Hue focietas diligenter c^ fanile
obfervanda eft,
qun nos omnes omnibus mifcet, v judicat aliquod
effe
commune jus generis hurnani : i. e.
"
"Tis not poflible
"
for any Man to live happily who regards himfelf only, who minds his own Intereft only; we muft live to others Profit,
"
if we will advance our own. This Union in Society is carefully and facrcdly to be preferved, which intermixes us to-
"
gcthcr, and teaches us, that there is a common Right of Mankind." ^rrM's Words in Epiiiet. Lih.i. Ch.\\x. are,
KkCoAk n [0
Zsi/t] Toiai/ri* ipfinii tS AoyixS i^an xccTe<rxiuu(nv I'm y^ri^ifx; T i^iiin ct'/aiuv ahy^rai Tvf)/Kvi/, si' /j,/! ri u'i ri
icoiiict i<pf/iiAriir sTfotripipiiTKi, r5 iyAri Uxavar/iloi yiHTXt to zrcctTo, tlurS iitxa, -syotiir i. e. GoD hath difpofed the Nature
"
and Order of reafonable Creatures in fuch a Manner, that every one of them fhould advance each other's Intcrefts, fo
"
as contributes to the publick Advantage; fo that tho' we refer all to our private Advantage, we ought yet to do what iii
"
us lies to promote that of others." M. Antoninus has many ingenious Reffedlions in his Works tending this way.
whoevci'
Chap.
IH^ Of
the Law
of
Nature in
general.
31
nsjhocvcr
makes
a contrary
Profefiondcfer-ves
to be
driven
out of
human
Converfc
and Society "^ Mo
Mm
isfo
bad,
lays
^uMilian ,
as that he defires
to feem
bad.
And almoll; every Body Ipcaks more
honeftly
than he either thinks or afts.
But
the
divine
Providence hath fufficiently con-
futed
this
pernicious
Opinion, by making itsbold-
ell
Patrons
and
Aflertors feel the fttal Confequen-
ces of it.
To give an Inftance or two.
"
Lyfan-
der
that
crafty
Defigner, whomanag'd moft Af-
fairs by
Cheats
and Shuffles, who plac'd all Right
in Profit, who
affirm'd
Truth and Lies to bein-
different
Things,
and either to be moft valuable
"
as it was moll
advantagious 5
who bragg'drhat
Men were to be
deceiv'd
with Oaths as Chil-
'Tis true, that this is not much to the Purpofe, but we muft own, that rf/r^.vy/i'n did not much depend on it ; and though
he docs not explain himfelf fo diftinftly as our Author, yet he lays down a Principle which reaches to the very Bottom of
that which cftablifhes Society, in another Place, which is this,
"
That which is fuch in general, and of that Nature that
"
Men can't difpenfe with the Obfervation of it, without bringing a great Prejudice to all Mankind, or which if Mankind
"
(hould permit to every Body, 'twould be to their great Damage, whatever is fuch, fay I, is forbidden by the Law of Na-
"
ture." Page
115.
.
XIII.
'
NS
5
t^o" ytiu<r^ To (TsafTB, 0, n trci vfx,x\im !, r^ eT<u5. Being endued with a. Soul, yon may know
from your'
felf,
what and how you ought to a^. DioChryfofl.Orat.\. DcServit,
p. \<yO. Ed. Morill.
To explain this Rule more fully, 1 think this ought to be added : From whence it follows, that whoever is oblig'd to aim
at a certain End, is oblig'd at the fame time to make ufe of the Means, without which it can't be obt.iin'd. Whatever con-
tributes ncceflarily to an univerfal Sociablenefs, ought to be looked upon as prefcrib'd by the Law of Nature; and, on tlie
contrary, whatever difturbs it, to be forbidden by the fame Law.
Whenever a Thing appears advantagious or noxious to Society in General, in whnt State foever Men are, in every Place,'
and at all Times, we niuft look upon it as either abfolutely commanded or forbidden by the Law of N.uurc. So altho' Theft
or Adultery may in certain Circumftances, and through the Corruption of Manners in certain Countries, have caufed hale
crno Trouble in fome particular Societies, as fome affirm, that Experience hath proved m the Kingdoms of fl.c
Maffa\^ets.
and Lacedemonians, yet thefe two Crimes are not a whit the lefs contrary to the Law of Nature: For if they were allowed
always and in all States, there would refultfrjm them, without doubt, monflrous Inconveniences and tcrriLle Pifordersj
and, on the contrary, every Society vvbatfoever, muft be more quiet and iiappy, where the Members of it rcli.-ioufly ab-
ftain from Robbery and debauching their Neighbour's Wife, than where fuch Attempts are frequently made. Our Aiitlior
explains himfclf well enough upon this Subjeft in feveral Places of this Book, and in his other Works, i/i. hisipicilepKm
Coiitrozerf. circa Jus Natur. Chap. iii.
.13. So that I am amazed that certain Men, who labour to confute him, and pretend
to take a new Method in explaining the Law of Nature, make continual Alterations in a Tiling fo clear.
5
Our Author (in the Beginning of the following
J.
of this Chapter, and in bis Speciraen Controverf. Chal>. y. .15, as alfo
inh\s Spicile^ihin ConiroverJ. z^c. Chap.i.
.14.)
declares, that he defigns to explain here the Duties of Men only which pro-
perly refer one to another t For, according to him, our Duties toward G o D belong to natural Theology, and Religion is
noother ways concern'd ina Treatife of natural Right, than as it is a more ftrong Cement of human Society. As for the
Duties of Man to himfclf, they are derived partly from Religion, and partly from Society. So that were Man independent
on G o d's Authority, and no way concern'd in Society, we could not conceive how he could be fubjeft to any Obligation
from himfelf. It fome had attended to this Syffem of our Author, they would not have fpent fo much Paper in delivering
Objections (b ill grounded. Neverthelefs 1 own, that he did well to prevent thefe Cavils by putting out a Treatife contain-
ing all the Duties of Man, of which we may know the Neceflity by the Strength of Reafon only, and which, if we rightly
underlfand the Thing, are contained in the Idea of the Law of Nature, otherwife we muft agree, that his Method to prove
the Principle of Sociablenefs is (ubjeft to fome Inconveniences, as we have obferved above in Note \. But all this maybe
reftiiied in (bme mealure, by keeping clofe to the Notions of the Author above quoted. We muft confider the Nature of
M.ui, whofe Conftitution we have originally difcover'd to be the Foundation of natural Right, cither as it came out of the
Hands of the Creator, or as framed afterward diverfly by fome human Afts. I. From th s Principle only. That Men are
Go d's Work.nanfhip, it evidently follows, that they ought to fhew towards that fuprcme Being, all the Sentiments which
are comprehended in the Notion of Religion, and of wliich we fhall treat in C^. iv. $. 3. Note 2. following. Moreover,
G o D having ccnfulted the Prefervation and Happinefs of Mankind (as it appears plainly) both by the Faculties he has en-
dowed him withal, and bv that ftrong Inclination which carries us irrefiftibly to fearch after Good, and avoid Evil : He al-
fo requires, doubtlcfs, that every one fhould not only preferve and make himfelf happy, but alio contribute his utmoft En-
deavours to the Prefervation and Happinefs of others. There arc alfo two other Fundamentals of the natural Law in gene-
ral, taken in its full Extent, and they are, i. Love of ourfelves, in a true Senfe
; and, 2. Sociablenefs. Infomuch that as
Religion contains all the Duties of a Man towards G o d, fo Love of ourfelves (forfo it may be beft exprefl'ed to avoid all
Equivocation) comprehends all that we aredireftly obliged to do in Relation to ourfelves
;
and Sociablenefs all that is due to
others. See . 24. Note}. So that Sociablenefs is oppofed to Self-love, and Self-love is no farther a Foundation of Sociable-
nefs, thanas we are bound to others, becaufe we love ourfelves. But thefe are two diftinft Principles, which though they
have one great Relation, and equally concur in the Sight of the Creator, do yet differ in the Main, and ought wifely to be
managed, fo that we muft keep an equal Balance, as much as is poflible, between them: I fay, as much as is poflible, for
ii fometimes happens that we can't at the fame time perform all the Duties which flow from thefe three great
Principles of the
natural Law
;
and in fuch Cafes we ought to regulate ourfelves by thefe general Maxims : i. That out"
Duties toward God
fhould always be preferred before all others. 2. That when there is a kind ofOppofition between two
Dutiei of Self-love,
and two of Sociablenefs, we ought to prefer that which is attended with the greateft Advantage, i.e. we muft confider whe-
ther the Good which fhall be procured to ourfelves or to others in performing either of thefe Duties is more conflderable,
than the Good that (lull redound to ourfelves or to others by the Omiftion of that Duty,
which we can't at prefent difcharge
without ncgleain2
fome other.
3.
If, all Things elfe being equal, there is an Oppofition between Self-love and the Duties
T of
138
Of
the
Law
of
Nature in general
Book
1 1.
Nature,
doth not only appear, upon
Examination,
to be the moft plain and eafy, but it is likewiie
own'd for the moft proper and genuine
Way, by
fuUConfent of the greateft Part of
Learned :Men.
There's no Need of heaping up
Teftimonics and
Authorities, but we may let Seneca
fpeak for all
the reft.
^
By what other Means, lays he, are ive
preferv'd, but by the
mutualJJJifiance
ofgood Turns?
'This Commerce and Intercoarfe
of Kindncjfes adds
Strength and Power to
Life ;
and, in
Cafe
of fudden
Jffaults, puts it into a better Condition
of Defence.
Take us all afunder, and what are we, but an
eafy
and an unequal Prey to wildBeafts ? Man by Nature
is weak on every Side: Society
fortifies his
hifirmity,.
and arms his Nakednefs. Thofe two Excellencies,
of Reafon and
of
Society, render him the
moft
potent
of
all Creatures, who would otherwife be obnoxious
to Injuries from every Thing about him. Thus, by
the Help
of
Union, lie commands the
World, who,
if
divided, would fcarce be a Match
for any living Ri-
val. And it is Society alone which gives him his
fovereign Sway over the inferior Creation. This was
the Thing which
fir
ft
reftrain'd the Violence
of Dif-
eafes, which lent Crutches and Supports to Old Age,
and
adminiftred Confolation to Grief. Take away this,
and you cut afunder the Band
of
Union, the vital
String
of
Mankind
.
There are other lefs principal Caufes, or rather
Arguments of a fociable Nature in Men. For
Example, becaufc nothing is more fad and dif-
agreeable than perpetual Solitude
^
: Becaufe other-
wife we ftiould have no Ufe of our Tongue, that
moft noble Inftrumenr, by the Help of which
Mankind have this Advantage above all other
living Things, that they are able to exprefs their
inward Sentmients in articulate Sounds
'
: Becaule
every good and excellent Perfon is defirous of
ihewing his worthy Deeds amongft others. A-
mongft thefe fecondaiy Reafons of
Sociality,
is
that which Tally takes Notice of in his firll Book
of Offices, Chap.i^w. There are
fame People, Hiys
he
7,
that
fanfy all Leagues and
Affociations
amonz.fi
Men, to arife from the Need that one Man hath
for
another, toward the
fupplying
of
our
natural
and
common
Neceffities : Becaufe (fay they)
if Piovi-
dcnce had delivered us
from this Care
of lookin"
after
Food and Cloathing, by appointing
fo-me extraordinary
IVay
for the Procurement
of
it
j no Man
of
either
Brains, or Virtue, would ever trouble his
Head about
Bufinefs, Jmit wholly deliver
himfelf up to the attain-
ting
of Wifjhm. But -thh^is a
Mifta-kr^ffTr even in
thatCondition a Man would
fiySvlinrdc,'antWfi}
for
a Companion in his very Studies : He woultTe
willing
to teach and to learn, to hear and to
fpeak. He talks
to tlie fame Purpofe in the Third Book of that
Work, Chap. v.
It is more according to
Nature,
for
a Man to undergo all Sorts
of
Labours
andTroubles
for
the Service and theConfervation
{if
it were
poffible)
of
the whole World,
after the Example
ofHercu\es,whom
the Gratitude
of
Men hath plac\l
far
his P'irtue among
the Gods
}
than to live in Solitude, and not only
free
from Cares,but even wallowing
inPleafures andPlen-
ty, with all the Advantages
of
Strength and
Beauty
over and above. This it is that makes all great and
glorious Spirits
prefer the
former Kind
of Life to the
latter. What the (ame Author obferves in hisZ^-
lius, is rather applicable to particular
Friendftiip
than to common Society
: Friendftnp
firfi arofe ra-
ther from Nature than
from Weaknefs-y
rather
from
the Bent and Inclination
of
Mens Minds, than
from
the Confideration
of
the
Profit it would
produce.
We would have it obfcrv'd,
that the
fundamen-
tal Law of Nature eftr.blifti'd
by us, doth not dif-
agree with that which Tir.
Cumberland
hzih
laid
down in his Work on that
Subjeft
\ concern-
ing the Study and Endeavour " after
the com-
of Society, ^hcther it happens through the F.ict of another, or not, then Self-love ousrht to prev.iil : but if there be an In^
^uahty. then Preference ought to be g.ven to that of the two Sorts of Duties, wnich
.^accompanied with tie Aetel^
Pro"
fit. See what is faid upon Chap, v, and vi. of this Book. II. But it often happens that Men wirhnnVl.ir.lf ^,\ ,
Obligations which refult direaly and i.nmediately from tl,eir original
crifi^utionaL'S'^itu^
add thereto by theirown W.ll, or by fome Comraft and pofitive Law. divers private Enaar,emenr, wl tl, ,
.^-'eatoi
theObieftof the Law of Nature, a^s it is a Ruleof .ftL which re^i "s fu^h En^^^^^^^^^^^^
I Tn o"hr
duoughly to conform then- Aft.ons to their original Conftitution, but in a different M.-,nner,
a^cordin^to the cliffere^S
ftate they are >n, asall the Parts of a Clock concur to fulfil the Contrivance of the Artifl, although
evIrvWlVdm^^^^^^
t
a Way agreeable to Its particular Form. See
J. 12, and 24. following.
""a"
^veiy wiieel
move in
.A,;^^^,^f, &c. Men are the
Defence
of Mer,, Cities
of Cities
, as the Hand rubs the Hand, and the Finders waff, the Fin
f^e^2^^-a.ij5-
S/^Xii.
T::i"'''^'rcTt;t
^'^--^-^^^rnfom.uuralConj.nmL
and CommJ.ty.
'^^il
^^
.nftr.cUor vua, contra.ue
iru,.fione?fMtas n>unit.r ejl, ien^ciorum cornieZ":
TnTnT/t
oT ::dZ^^^
hum c^ v,n,m.
c" .mheall,Jl.,us
cr faaUimus
fangu.s. .^I'omam c.tens anmaUbus ,n tuteam
fTuZ^Ltn
Zf
cunciue ^asanafcuntur,
^
ailura vUam
fcgregem, annntafunt: hom.nem nnbelUa anpt :
noTJnUumluZldenl^"'
terrMemcitensfectt; nudun,,
<J- tnjirmmn
focietas mimit. D.;as res dedi, an^ ilium obnoxr.nf^Jr.^ir "f""^'"'""".
Kecverum ejl, ^uod duuur a qutbufdam. propter
necejf.tatem vit., quod ca ,. naturadej,deraret,
confe.ui fine ah.s
otmtam
ejfe cum hommLus
comn>un,tate,n
o-
focieluetn
;
quod /, omnia
nobis^^Zadrm
atque effiiere non pofjemus, idcirco
,'
"
^
'^Z' r , ,: :
-J'-
'
"">'"*' i-ummutiuiiicj/iicir joiieiaiem
;
ciuoa It omnia nobis aus nAr'iff,,.^
adtumjue pertinent, qua/, virgulad.v.na.
ut ajunt,
fuppcditarent, turn optiL quifyue ingej, negoti.s
o2ibZ\m}^'^^
,nn fein cognitione,
o~ fccntia collocaret. Non ejl ua, nam
o^ folitudmem fuglret, c ftcum Jlud.i qulreret"
tuSo'cen
>
J-
., , -
J
....
/.;? difcere vellet, turn audire, turn dicere.
Mavs ejl fecundum naturam, pro omnibus gemibusj,
fieri poljit^confervandis. autjuvandis
maximos
lahorcs
molefliar.ue
nitantem Herculem ilium, quern hominum fama ieneHciorum memor. in concil,ur rhfl.,.^ ..u...^
' ""^"MW
--i.. V.
jcw., .iram,
fro omnwus gentwus,ji
fieri
poffit, confervandis. autuvandis
maximos
lahorcs moUH,^r..u
^T^::^"""''"" "/f^''^
;!'''"'
l"^'"^''"''"''"'
fama
ieneficiorum Lmor. ,n concilium cdejlium
colloS
\7ifvfZ,
> There are feverai other Authors whofe Principles being well underftood
mav be reducerf tn ,U- u l ,
mon
Chap.
IIL
Of
the Lci'Vo
of
Nature in
general.
mon
Good, and thedcmonftiating all pofliblc Be-
nevolence
towards all Men. For wc, when we
maintain that a
Man ought to be fociable, do at
the fame time intimate, that he ought not to make
his own
feparate Good the Mark of his Proceed-
ings,
but the Benefit of Mankind in common
j
that no Perlon ihould puifue his private Advan-
tage, by opprefling or by neglecting other Men
j
and that none hath Realbn to hope tor Happinefs
and
Succels, who either injures or defpifes his
Neighbours.
From this focial Nature of Man, and from the
Confideration that every one is born not forhim-
felf alone, but for all human Kind, the Lord Ba-
con^ in his Work of the jidvanccmcnt
of Learnings
Bookv'u. Ch.i. deduces feveral excellent Corolla-
ries }
as, that an aftive Life is preferable to a con-
templative one
J
that the Happinefs of Man is to
be fought for in Virtue
i",
not in Plcafure
j
that
the Fear of fudden and unexpected Accidents ought
not to deter us either from managing publick Af-
fairs, or from maintaining Society and Commerce
with other Men : Laftly, that we ought not to
withdraw ourfelves from civil Bulinefs, out of a
tender and fcrupulous kind of Humour, or out
of an Averfion to the ufual Methods of Complai-
fance. In which place the fame noble Author
flirther obfervcs, that there never was any Philo-
ibphy, Religion, Law, or Difcipline found out
in the World, which fo far exalts the publick
Good, anddebafes private Intereil, as the Chrif-
tian Inftitution appears to have done.
XVL Let us confider now whether or no the
Doctrine aflcrtcd by Hobbes^ in his Book De Cive,
CbapA. . 2. clafhes with what we have been de-
livering on this Head. Certainly he hath been in-
terpreted with very great Rigour, and with very
little Reafon by fome learned Men , when they
cenfure him for teaching, that Nature did not in-
ftitute
Society^ but Difcord^ amongfl
Men, and, as
they hence infer, that all Kind of human Society is
againji the Dcfign of
Nature .
Which is much the
fame Thing, as if 1 fliould talk thus. Speech is by
Nature attually born ivith no Man ; therefore all
Speech ivhich is afterwards learnt, runs againji Na-
ture's Intention. Or thus. All Men by Nature come
into the IForld little , therefore it is againfi Nature
that they Jhould grow up to larger Dimenfions. Or,
Men are by Nature fubjeit to Difeafes ; therefore it
is againfi
Nature, to make
ufe of Diet, or Phyftck
to prevent or to cure them. We muft confefs, that
this Notion of Ilobbes, looks at firft View ex-
tremely paradoxical} efpecially if a Man doth not
confider diligently the Ambiguity of the Word
Nature. But for fear any one iTiould hereafter be
cheated by the fame doubtful Philofophy, and led
fatally into Error
>
let us firll obfervc, that Self-
love and Sociablenefs ought by no Means to be
39
madeOppofitcsj
but thofe
different Inclinations
are m fuch a Manner to bctemper'd,
that the for-
mer do not overthrow ordifturb
thclatter*". When
by the Enormity of wild LuRs this
Tempcramenc
IS broken, and fo all take up a Refolution
of feek-
ing
each his own Advantage to the Injury
of o-
thersj then ariie thofe Heats and
Contentions
which divide and confound Mankind. For the
avoiding which, the bare Care of our private
Safety commands the Obfervation of focial Laws,
fince we cannot enfure our own Perfons v/ithouc
their Afliftance and Proteftion. As {oy Hobbes'sDe-
monlbation, in which he ingenioufly enough de-
duces thofe Laws which we call natural, from the
Principle of Self-prefervation, the firft Remark
that we iliall offer concerning it is this ) that fuch
a Way of Proof doth indeed clearly enough make
out, how conducive 'tis to the Safety of Men, that
they aft according to thefe Dictates of Reafon:
But it is not an immediate and direft Conclufion
to fay, a Man hath a Right of ufing thofe Means
for his Prciervation, therefore he is oblig'd, as it
were by a Law, to obfervc and to purfue them :
For to give thofe Dictates of Reafon the Force
and Authority of Laws, there is need of pro-
ceeding on fome other Principle, than what he
lays down.
In the next Place, great Care is to be taken lefl
anyfhould conclude from fuch Arguments andPo-
fitions, that when he hath once enfur'd his own
Safety, and fet himfelf out of Danger, he need
not trouble himfelf about the Security of other
Men; or that he may infult how he pleafe, over
fuch a Perfon as doth not contribute to his Quiet
and Hapinefs, or hath not Strength enough to
difturb it. For we therefore give Men the Name
of focial Creatures, becaufe they, of all living
Things, arc the fitteft and the moft able to pro-
mote the Advantage of each other: Neither is any
inferior Creature capable of receiving fo great Be-
nefit
I
from Man, as Man himfelf Again, the
Excellency and Perfection of any particular Per-
fon rife the higher, the more he deferves of the
Community by his publick Benefaftions
>
and
Works of this Kind are reckon'd the moft noble,
being fuppos'd to proceed from the greateft Wif-
dom : Whereas any worthlefs Wretch, or a meer
Fool, may be able to trouble or to hurt his Fellows.
Befides, f uppofing every Man's private Advantage
were efiablifli'd for the Mark of his A6tions, if
many Perfons fliould happen to fix that private Ad-
vantage on the very fame Thing ', there will ei-
ther be a Neceflity of faying that thefe many De-
fires, including a plain Contradiction, are con-
fiflent with Realbn, which is the higheft Abfur-
dity : Oi^, fince none can pretend that his Dcfire
would have the Preference of the reft, we fhall
be fbrc'd to admit it for a Truth, that no Man
*
Compt.Conr'm^. in Jure CiviLi,Ch.xiv. in
fi>7.
>
Arrian. Epitht.Lib.i. Ch.xix. Cod has difios'd the Nature andCon-
fututionof r.itional Crcdtures ajttrfuch a Manner, that they can't advance their private, without contributing fometking to the
fublick Intereft. Community doth not exclude the Purfuit of
private Advantage.
Virtue is tlie Caufe of Happinefs^ but it is not Happinefs itfelf. All Happinefs coufifts effentially in Pleafure, although,
there being diveife Sons ot Plcafure, every one will not make a Man happy. This might be ealily provedj it this were a
proper Place. See a fine Paflage of jV/o;.!^He's upon this Subjeft,
Effays, Lib.u. Chap xlx. Inn.
. XVI. ' Our Author muft mean Harm, for to fay Benefit would not be agreeable to right Reafonin^.
^ Again, our Author is guilty of an Inadvertency, for infteadof flying, on the veryfame
Thing, he Soubtlefs meant to fay,
on Things very
different from one another ; as appears from iiis Reafoning afterwards, and from Dr. CiiniberLind, Ch. v. . 1 6.
whole Notions our Author follows:
If
right Reafon, fays that /i/7; Writer, diilatestoVeicv,
that all his happinefs, and the
End that he aims at,
conffts in the Enjoyment
of
the full Right
of
the Lands which ]
ohn and j
Ames pojjefs, as alfo of
their Perfons,
and
of
the Coods
of all others ingcncral, right Reafon cannot infpire ]ames and ]ohn to place their Happinefs in the Enjoyment
ef
a
full Right in the Lends and Perfon c/Peter, ggd of
all others, for that would imply a plain Contraditlion, &c.
T i
ought
1
40 0/
^^^
^^'^
^f
Nature in general
B o o k IL
ousht
(o to make his own
Profit the Aim of his fens, but they are both extremely agreeable and
^ ! _ . ^^^f^z-l/^v nn/1 rr> v^ml/^ rl-if>
COnfiftcnt.
''* onrif^Tic fiiffiripnrlu frnm rSp R nip
Proceedings,
as not to confider and to regard the
Good of others.
Farther,
whoever attempts to
draw every Thing to himfelf and to his own Inte-
reft, without
looking
towards his Neighbour, will
not only labour in vain (it being impoffible that all
as appears fufficiently from the Rule
propos'd by our Saviour, Matth. xxii.
39.
when
he commands us to Icve our Neighbours as our
fehes
4. Indeed Reafon plainly informs u^, than
whofoever hath a hearty Dcfire for his own Secu-
Perfons and all
Things fliould be difpos'd accord- rity mull not, cannot neglcd the Care of his Fel-
ine to the
contradiftory
Defires and Wills of par- lows. For, fince our Safety and Happincfs depend
ticular Men) but he will Ukewife invite others to for the moil: Part on the Benevolence and on the
plunder and to deftroy him.
Moreover, if that Affiftance of others, and fince the Nature of
Men
only can be faid to be good to a particular Perfon, is fuch, that for Benefits conferr'd they expeft
a
which conduces to his feparate Intereft, it follows,
that in refped of all other Perfons it mull be m7,
inafmuch as their Intereft or Profit is not further-
ed by it : And fo what one covets and purfues, all
the reft will oppofe and keep off, which cannot
but raife perpetual Clafhing and contendmg a-
Return of Kindnefs, and when no fuch
Return is
made, refrain from farther Favours : NoPerfon in
his Wits can ftick fo clofe to the Puifuic of his
feparate Advantage, as to divert himfelf of all Re-
gard to the reft of the World : But rather
the
more rationallv he loves himfelf^ the more earneft
mongft Men '. Laftly, although another Perfon he will be in endeavouring by good Turns to pro-
hath done me neither Good nor Hurt, and though cure the Love of other Men. For no one hath
he hath nothing in him to raife either my Fear or any Reafon at all to hope, that Men will volun-
mv Love, yet Nature obliges me to efteem even tarily contribute towards advancing /jwHappinefs,
fuch a one as my Kinfman and my Equal ; which whom they know to be malicious, perfidious, in-
Reafon alone (had we no others) were fufficient grateful, and inhuman, and that theie wicked
Praftices are the Requitals which he will make for
their Bounty
j
on the contrary, it fhould be ex-
pected, that they will all join together in ridding
the Earth of fuch a Monfier, or, at leaft, in rc-
to enforce the Practice of a friendly Society and
Correfpondence amongft Men. And upon this
Confideration, fuppofing there was a Nation in
the World maintaining Peace and Juftice amongft
ihemfelves, and of fuch mighty Strength as to be ftraining him from doing firther Mifchief
and fo not reftrain'd from
formidable to all others,
hurting them by the Fear of a like Return
>
yet
Ihould this Nation or People affault, drive, kill,
or drag into Slavery their weaker Neighbours, as
often as they thought
convenient, we Ihould pro-
nounce them actually guilty of a Breach of the
Law of Nature. And yet (as we fuppofe) thefe
People might preferve
thernfelves, whether they
allow'd any Rights to others, or not '. In the
fame Manner, none will commend the Life and
XVII. Neither is the followingArgument which
the //oM//?i make ufe of at all conclufivej
"
Parti-
"
cular Men when they join Society or Company
"
with aertain others, have Regard to fome pe-
*'
culiar Good or Benefit, which is likely to re-
"
dound to themfelves : Therefore human Nature
determin'd to Society, or, I
^^
... ^v....v.^ my fclf in a focial
Manner towards him, from whom I do not ex-
expert fome particular Advantage." For thus
(C
in general is not
"
am not oblie'd to behave
((
amongft
Profefiion of Robbers, bccaufe they exercife fome much indeed is evident, that the Reafon why cer-
little Juftice towards thofe of their Gang, becaufe tain Men join in any certain Species of Society, is
~
"
"
either becaufe they have a peculiar Refcmblance
and Agreement inDifpofitionof Mind,or in other
Qiialitics ; or elfe becaufe they think they ftiall
better obtain fome End which they drive at, a-
mongft thefe Perfons than amongft others. But
(befides that, regularly fpcaking, no Man hath
their Captains divide the Prizes equally
them, and becaufe he who either openly or fecret-
ly robs one of the Crew, is (even by Thieves) ad-
judg'd unworthy of farther Partnerfhip and Socie-
ty with them
''.
This Rule of extending our Care
beyond our own Perfons, is fo much the more di-
ligently to be attended to, the more evident it is, the Property of belonging to no particular Socie-
that a Man of more Strength and Power than or-
dinary, is likely to be tempted to the Violation of
natural Law, by the Thoughts of his own Self-
fufficiency >
that fince his private Safety is abun-
dantly provided for, he need not give himfelf the
trouble of maintaining Peace and Friendfliip with
his Neighbours.
But to conclude this Point, as the Care of our
own particular Prefcrvation doth not exclude a
Concern for Society, fo neither doth a kind Re-
ty) even amongft Men who are united only bv
the common Tic of Humanity, that general So-
ciablenefs and Peace are to be obferv'd and culti-
vated} which implies little more than this, that
they abftain from hurting one another unjuillv,
and that as far as their ftnftcr and particular
Ob-
ligations leave Room, they mutually promote and
communicate their Interefts and their Goods.
XVIII. Hence it is clear what Anfwer ihould
be made to thatObjetion,//ocyV/(t;/ lov'danother
gard for Society fupprefs our Affedlion to our Per- naturally, that is^ upon account
of
his being a Man,
'
Self-Intereft
Is a poor Centre
of
a Man's Adlions, fays my Lord Bacon,
Hff.
xxiii. XiiiCkeron.
Off.
ii, Ch.xi
: magis vitHperandus
eft
frod'ttor patrU, quam communis utilitatis aut falutis defertor, propterfuam utiUtatem, aut falutem.
)e Fin. Lib. I'd. Ch.x'ix.
"
A BetiMyer of his Country is not more foully fcandalous, than he who deferts the com-
Neci
Cicero Dei
"
mon Benefit or Safety for the Procurement of his own."
<*
Quiftadiitm
ciirrit.enitizy" contendere debet, quam maxime pojfit , utvimat; fupplantare eitm, qiiicum certct, aut manti de-
pellere, nullomodo debet. Sic in vita jibiquemque petere, quod pertineat ad ufiim.
noniniquumeft,alterideripere jus non
eft.
Chry-
fippus apudCiccron. De Offic. Lib. iii. Chap. x. In running
of a Courje a Man may be allow'd, nay, he ought to ftretch and
contend his Utmoftfor
the ViHory : Hut he tnuft not, on any Account, trip up his Antagonift's heels, or thruft him out
of
the
Lifts
by
main Force. So in Life,
it is very fair and allowable, for every Man to get, by honefi Means, -whatever makes
for Vfe and Ad-
vantage; but 'tis by no Means lawful that hefiould take it awayfro-nothen.
then
Chap.
Ill
Of
the Law
of
Nature in
general
then
there can he no Reafongiven^ivhy every one
fiould
fwt love every one cquaUy^all beingeqtmUyMen :Orivhy
aManjhoul'dchoofe to frequent theirCompany moji^from
idmn he receives cithergreaterHonour or greaterProfit.
]n this Fallacy, common Society is confounded
Avith particular and ftrifter Confederacies, com-
mon Love, v/ith fuch as arifes from peculiar and
fingular Caulcs. For to dcl'erve that common Af-
fcftion, no Property is requir'd but barely the be-
ing a Man. Nature having, for the Reafons above
aflign'd, really conilituted a general Friendfliip
amongll Men, from which no Perfon is excluded,
unlefs he hath rendred himfelf unworthy of it by
his monlhous ViUanies. Now, altho' by the good
Difpofal of the All-wife Creator, our Natural
Laws are fo fitted to human Condition, that the
Oblcrvation of them is join'd with the Intereft
and Advantage of the Obfervers
j
fo that even
this common Love is exceedingly profitable to
Mankind : Yet in affigning the Caufe and Reafon
of it, we are wont to have Recourfe, not to the
Benefit proceeding from it, but to the general
Nature in which it is founded. For Example, If
we are to give a Reafon why one Man ought not
to hurt another,
we do not ufually fay, becaufe an
abrtaining from mutual Violence is profitable (al-
tho it is fo indeed in the higheft Degree) but, be-
caufe the Perfon being another Ma, that is, ano-
ther Animal related to us by Nature ', it would
be a Crime to oifer him any Harm
^.
Yet befides this common and univerfal AfFeli-
on, fome Circumftances may make a Man love
one Perfon in a higher Degree than another : Sup-
pofe, becauie their Inclinations particularly agree,
and their Heads lie the fame Way
j
or, becaufe this
Perfon is more able, or more willing to promote
his Advantage
j
or, becaufe their Race, or Original,
makes them allied to each other. As to that Ob-
lcrvation about Mens being more willing to fre-
quent fuch Company, where they find themfelves
preferr'd to others in Honour and in Profit j the
Realbn of the Thing is this, becaufe every one
mud naturally love his own Intereft, if he have
Wit enough to underlland it. But this Love is
by no Means repugnant to the fociable Nature of
Mankind, if it doth not rile to fuch a guilty
Height, as to dillurb the Harmony and Agree-
ment which is univerfally to be maintain'd amonglt
Men. For Providence did not for this Reafon
give us a fociable Nature, that we fhould there-
fore negledi: ourfelves and our own Affaire. But
rather we are ftudious of Society on this very
Account, that by a mutual Communication of
Afliltance and of Goods, our own Concerns may
141
be manag'd with more
Convcniency,
and with
more Succcfs. And altho'
when
a Man unites
himfelf to any particular
Society,
he hath a prime
Regard to his own Intereft,
and
but a fccondary
one to the Intereft of his
Companions
; not being
able to carry on his own Matters
without
fuch a
Conjunftion
}
yet this doth not hinder him
from
being oblig'd fo to purfue his own private
Ends
and Advantage, as not to injure either the Corpo-
ration in general, or any fingle
Member of it,
and
fometimcs to poftpone his leparate Good, for the
Advancement of the common Benefit.
What is urged about the Original of great and
lafting Societies, or States (it being faid that they
are not deriv'd from mutual Benevolence,
but
from mutual Fear ; by which Word they
mean
any Kind of Precaution and Forefight) is entirely
befide the Purpofe. For as theQueftion
doth not
ut prefent proceed about the Rife of Civil
Society
in general ; fo farther, it is highly agreeable to our
natural Condition, that whereas fingle Perfons,
or
a few join'd in Confederacy, might lie perpetually
expos'd to the Infults of fuch Wretches as purfue
their private Ends, without Regard to their Neigh-
bours
j
many fhould unite in a Body, and lb
ftrengthen their Guard againft farther Ailaults and
Milchiefs. Neither is it indeed abfolutely necef-
fary, to the proving any Society agreeable to Na-
ture, to fay that it arofe entirely from mutual Be-
nevolence. And yet even this Principle muft be
allowed fome little Share at leaft, in the forming
of States, fince the Perfons who firft begin them
are commonly join'd on the Account of Kindnels
and Good-liking, though many others may after-
wards engage in the fame Union, by the Induce-
ment of Fear. But as for this Fear, which is
look'd on as the Cement of States, as likewife
for that Difpute, whether or no Man by Nature
be
^S)ov TToAiTixoVj
we fhall examine them more
at large when we come to enquire into the Rife
and the Original of Commonwealths.
XIX. This Principle which we have eftublifh'd
for deducing the Law of Nature, as it is the moft:
genuine and the moft clear, fo we take it to be
in fuch a high Degree adequate and fufficienr,
that there is no natural Obligation bearing
a Re-
gard to other Men, the Reatbn of which is not
terminated here, as in the chief Head and Foun-
tain of Duty. Yet, as we ftall hereafter
fiiew,
to give thelc Diftates of Reafon the
Force and
Authority of Laws, there is a Necefiity of fuppo-
fing that there is a Go d, and that his wife Provi-
dence overfees and governs the whole World, and
in a particular Manner the Lives and the Affairs of
' Luc'mn in Amo'lbus, Tom. i.
p. 89;.
Ed.
Amft. Wc do not, like brute Creatures, ajfetl foiitary Meditations, but joining
together in a friendly Society, ive make our Joys to be the greater, and our AfjiiCiions the
lefs, by being mutually communica-
ted : And our Pleafures halving many Sharers in them, Jill us with the truer Satifatdon and Delight. Dio Chi-yfoftom,
Or<i/. xii. tells us, tiiat the Rc.ifoii why ^^^''c hath ohen the Title oCfp'^-'" and irxtfCcSi-, The Kind and The Friendly, is,
becaufe he gathers, as it -JL-ere, all Mankind into Unity and Society, and would have them prove, Friends to each other, with-
out the
le.ifi Mixture
of
Hatred or Oppojition. In like manner, {ays he, he is cill'd, ^fH-^
or hofpitable, becaufe we ought
really to think no Man a Stranger to us.
.xvni.
This is what the Roman Lawyers fay. Cum inter nos cognationem quandam natiira conflituit, confequem eji
hominem
homini infidiari nefas
effe.
Digeft. Lib. i. Tit.i. Dc Juftit. & Jure, Leg, iii.
'
Seneca has very well obferved this, and fiys. That the higheft Point ot Fiiendfhip is to look upon one's Friend as
n Perfon v/ho ought to be as dear to us, as we are to ourfelves ; we ought to provide for the Interefts one of ano-
ther. Iwill, fays he, bejiozu upon him that is in Want, but in fuch a Meajure as not to be reduced' to
Necejjity my
ftlf. I
will ft
ep
in to the
AJJiflance of him who is in Danger
of perifljing, hut not
fo
as to perifl> with him.
Quiim fumma amici-
tix fitj amiciuii
fibi arquare, utrique iimul confulendum eft. Dabo cgcnti, fed ut ipfe non egeam, fuccurram peritu-
ro, fed ut ipfe non pereani. DcBencf. Lib, ii. Chap. iv.
.
XIX, '
See Kote
5. upon the 15th Paragraph.
Mankiad,
jt
42
^f
^^^ Law
of
Nature in general Book
It
Mankind.
For we cannot by any Means fubfcribe Rules would be obferv'd out of a: bare Regard
to
to the
Conjefture which
' Grotius ftarts, in his Pro- Inteveft, as thofc are which the Phyficians
prefciibe
legomem^ or Introduftion, N. XI. I'hat the Laws in the Regimen of Health. Grotius feems to
have
of
Nature ijoould take Place, Jhould we {as we cannot taken the Hint of that Notion from a Paffage
in
without the
moft
horrid Impiety) deny either the Being Marcus Antoninus
b
> If^
fays the Emperor,
the
Gods
of
GOD^ or his Concern in human
Bufinefs. For, do not confult about any
of
our
Affairs, which
the
fhouldanyWretch be fo horribly fenfelefs as to main- 'vile
ft
Impiety canfcarce believe; why then 'tis
fit that
tain that wicked and abfurd Hypothefis in the rank- Ifijould confult or deliberate about my own
Concerns
eft Way,and fo hold Men to have deriv'd their Be- And all my Deliberation
mufi
be concerning
what
is
ing wholly from themfelves
5
according to them, the
moft
profitable for me. Now that is
moft profitable to
Edifts of Reafon could not rife fo high as to pafs every one, which be
ft
agrees with his Nature
andCon-
into a Condition of Laws ;
in as much as all Law fiitution. And my Nature is to be rational,
and to be
fuppofes a fuperior Power. ' 'Tis a good Obferva- a fociable Member
of fame City or State.
My City
tion of 2//)', Dc Natura Deorum, Lib. ii. Chap. ii. and Country, as /(?/ Antoninus, is Rome,
as Iam
Iknow not, fays he, but that upon taking awayReli- a Man, is all the World : Ithofe Tloings
therefore
gion, andPiety towards the Gods, all Faith andSociety which are profitable to thefe Communities,
are
the on-
of
humanKind, and even the
moft
excellent Virtue
of
ly T'hings which are good and expedient
for me.
Juftice, muft
be hanifli'd the World ".
Unlefs the As to what a certain Learned
Man obje<Sts
that
' Liban.Beclam.ul. p.z^o. 'Ed. Pari/, Where there is no Honour ef
the Gods, there can he no Fidelity
amongfi Men.
b
g^g
his moral Reflexions, B. vi. . 44.
'Mr. VeCourtin, theTianflatorof Grotius, explains thefe Words, but fomething obfcurely, and feems alfo to miftake
him; tellinguSj that he maintains. That Man's natural Light, without any Star of God, would carry a Man i"n a moft effi-
cacious Manner to feek Good and avoid Evil, by all Means poflible, in Obedience to that Law only which Reafon
prefcribes
and with the Execution of which Confcience is charged. 1 fufpeft that Grotius never defigned to exprefs himfelf with fo much
philofophical Exaftnefs, and that there is little Rhetorick in that Paffage, if the Senfe being rightly
underftood, has that
Meaning; That the Maxims of the Law of Nature are founded upon the Conftitution of Mankind, and neceflarily
contri-
buting to the Advantage of every one, willnotceafe to take Place, and be praftifed outwardly in fome meafure, althoutrh
no Deity be acknowledged
;
but then they can't be looked upon as Duties, nor can be put in Praflirce, butupon the Account
of fome Intereft or Vain-glory. Mr. <iy/ goes much farther, and maintains, in his Confederations upon a Comet, pa? 5-4.
That Reafon, without any Knowledge of G o d, may fometimes perfuade a Man, that a Thin^ is honeft,
and -rood' and
commendable to be done, not for the Advantage coming by it, butbecaufe it is fuitable to Rea/on.
The famou?
Chancel-
lor Bacon (whofe Authority, no more than Gro/iwj's, Mr. ^^zy/e doth not take notice of) has delivered much the fame Thin<J
in his Serm. Fidel. 1 17.
where, making a Parallel between Superftition and Atheifm, he reafons much after the fame manl
ner in his Confideration on a Comet, though more largely. My Defign is not to examine Things throushly, and therefore
1 fhall only make fome fliort Reflexions, I own, that Religion is neither the only, nor principal Balls of Society-
but
then, in my Opinion, we muft allow, i. That the Notions of Honefty being ftript of all Relation to the Will of God
the fupreme Lawgiver, the Author of our Being, the Proteftor of Mankind, and of Society, are meer Chimera's
ormecr
barren Principles, pure Speculations, incapable of laying a Foundation for good Morality, or to produce folid
Virtue
If
ivelook upon the Athcifi (fays Mr. B/jy/e himfelf) in the Dijpofition of
his Mind, -U'e fliall find that he, not being aiv'd by
a>2i
. 0-0
iperfeft
and incohe
rent. 1
fay. All Things elfe being equal. For it would be ridiculous, to compare, for Example, a polite and
well-inftruft-
ed People with a favage Nation, who have not Senfe enough to do any Evil. We muft befides, if we will exadly
diftini^uifh
the Effefts proper to Atheifm, and a good ov bad Religion, fuppofe the Perfons fo compared together, to be very
near'^fur-
nilhed with the fame Notions, and to be in the fame Situation, anaunder thefame Circumftances in general,
otherw'ife
we
Ihall be in Danger of attributing to Relioion, what really proceeds from Nature, Education, Cuftom, or the like-
which
Religion is very little or nothing conducing to; or we may accufe Religion of Impotency, by reafon of fome
invincible
Obftacles in them, upon whom it would not fail to produce its Effeft, were it not that they are ignorant of the moft
neccfla-
!-y Point. UponthisFoot I maintain, that Religion, tho' corrupted, would produce better Effefts than
Atheilm,
that it
would difturb Society lefs, and that the Good it would do, would be much greater than the Evil it would caufc.
1 will' not
deny, but there may be amongft thefe Atheifts, Men of Senfe and Philofophers, who, reflefting that it is better
for Men to
fubjeft themfelves to certain Rules of Life, than for every Man to follow his Humours only, may obferve them
outwardi v
fo far as they are exempt from fuch Circumftances, as fome great Intereft prefent, or fome violent Paftion forces
them iipoii
fuch Counfelsasarereafonable, calm and aware of the Confequences. But the common Sort of ignorant
People
and
Idiots, which make up the greateft Part of Society, are not able to make fuch Rcfleftions. To curb in therefore
the' Vio-
lence of their PaiTions, and to outweigh Mens private Interefts, which often clafh with the publick Good, fome
more obvi-
ous Principle,
which all the World may be fenfibic of, and which may make the decpeft Impreflions upon them
muft be
found out, and that, in a Word, can be no other than the Fear of a Deity. Experience fufficiently confirms
this
that in
all Times this Motive has had great Influences upon the Mind of Man ; for who knows not, that in the darkeft
Tini'es of Pa
ganifm, it w-is the Caufe of Honefty in many Nations > Mr. B^y/c proves at large. That Men did not always
acl accordin<r
to their Principles, and fo it might well happen, that many Pagans did not perceive nor draw the Confequences
which foi^
lowed from the falfe Notions which they had of the Deity. 'Tis certain, that not only the Philofophers,
but the Vul-ar
looked upon the Gods as the Revengers of the Violation of the Laws of Nature. See what is faid in the next Ch^t
i"
-
JCote
4.
Since then there are among Atheifts the fame Principles of Diforder, as among Pagans, from which no Man can bo
refti-ained hut by Religion, it feems plain that Vice muft reign with much lefs Controul and Extent in the Society
of"Atheifts
th.tn in a religious one, aliho' their Worfliip be falfe and erroneous. Itmaybe, perhaps, pretended,
thatthewant
ofthi'
lleftraint is made up by the Diforders created in religious Societies, by Superftition and falfe Zeal ; and I own that thefe In
conveniences, which arile from the Abufe of Religion, are s^reat ; but the Disbelief of a Deity would produce much iireater
As much as the Notions of Religion are perverted, and though they are made ufe of as an Occafion
or Pretence of cort'
firming or engaging many Perfons in the
Commiflion of Crilnes, yet they tail not to difcoura^e and deter others and th i
of a much gre.ater NiUTiber. The Notion of a G o d, and of an invifible Judge, who will punilb Vice and reward Virtu^^
arc naturally fo faft linked together, that the moft fimple have a Senfe of it, notwithftandin? their other falfe
fuperftitio
Idea's, as appears from the Example of the Pagans.
But, as much as Atheifm pleafes fome Men, as the more
pure Stite
Nothing but pernicious Confequences can be drawn from it, tending direftly to the greateft Loofenefs and
Debaucherv
Con
fequcnces which are clear to the Sight of all the World, and can't but brin? Deftruftion to a Society, which is'
compo'fed of
Men endowed with fuch irreligious Principles. If the Nations which are fo barbarous as to have nb Reli..ion be nK;p^> f
s
belidcs that the Hiftories which give an Account of them are contradifted by more modern and faithful
RelatiJns
thefe Pe
pie are either not formed into any Society, or are fo illiterate and ftupid, as there is little Dift'erence
between
them ind tl,,-'
.Bealts, as the ingenious Witer of the Rights
of
the Chrijlian Church, has very well obferved in his Preface ig Se^ nl \
^lllSlZV'!'
^'^
'}'^^^'
u
"''*'
'l'""^{"'>-
'^y']"'^" adverficsDeos fuhlata,
fides etiamt-[oeietat>s human,generis,
o~ una
xceUentijJimav;rtns,
jufiitiatollatur. See alfo Libantus, Declam. iii.
/>. 250
&
>
^
""
particularly
Chap. III.
Of
the
Law
of
Nature in
general.
ikA
particularly the Y\rtuzo<^ Fortitude
cannot be de- it rather
contradias
and
hinders
the P.-.f.rv r'
nionflrated from our Principle,
unlefs we farther the
SociableneC. thr P.. !L
4
',^
Pi^efervation, nionflrated from our Principle,
uiilefs we farther
fuppofe the Immortality of the Soul>
finceother-
wife there would be no
Reward to a Man who
fhould throw away his Life on
agoodCaufe:
This
will require no great Pains to anfwer.
For altho'
the
Sociablenels,
the
Peace,
and
the
Tranciu'ilTirv
of
Mankmd.
But the
Genius
and
the
Scone
S"
Chnlhanity
differs vaftly from
thefe
meer
nftura
Schemes;
and the holy
Apoftle
had
good
Rcafon
without bringing this high Point
into the Argu- XX. But to make thefe Dlfl-.r^c .rp r ^
ment it is poflible to demonftrate,
that a Soldier tain
the Pow r aTd th D^^^^^^^^^^
^-
may fairly
be commanded to fight to Death in cefTarv m Z\t\T.
^''^^'[g"^)' oj^^aws,
it
isne-
the Bd,if
hi. Co,y^
ft,
bcfMcfr^
aSh^
Foral^^V'SS
'S'.lSVlrr
there appears yet no clear Reafon why
wc muft ecy
of them be clearly
appa em vrSk'^^!''''
Ster-IS'l^^wL^rthSc^fi^SiralSd
^;^^^^^
-eS^yrarstS;^:-^^^^
tainly to be chofe. But it is a lefs Evil to fi^ht
with extraordinary
Danger,
and even to the Taft
Breath, than to fufFer
unavoidable
Death for run-
ning away.
And therefore
that Soldier
muft be
thelreat ft Fool,
as
wdl';sti.g;.:at;ft
Coward fo,
S^^'thi;:\t^ A^^^^^^^^^^
who_would not
chooferather
tofSl
honourablvbv deriVd i \^^S^^!^A'^^Trlr^y'^''^''^
"^^ey who would not
chooferather
to fall honourably
by
the Enemy's
Hand, having firft
anticipated his own
Revenge,
than to deliver up
himfelf to be igno-
miniouflydifpatch'd
by the
Executioner +.
Itfeems
fufficient
that a Man fight with all his Force and
contrary,
whenever
the Humour
takes
him
And
altho'
we fhould
fuppofe
many
Perfons
ftandingin
a natural
Liberty,
and combining
to keen
thefe
1
recepts,
yet the Force of them could then
laftno
deriy
d it. Nor would the
Obligation
then
only
ceafe,
when all the confenting
Parties
ftiould
pleali
to alter their
Minds (as is now the
Manner
of
re-
ceding
from
mutual
Covenants by
common
Con-
sent)
but even during the
general
Agreement,
the
Akii.v 1 u- T T
^
r
"^ '""-'=
^ ''^^
o"^ even during the
general Ap-rcei-npnr rl,
Ability, le his Inducement to this
Behaviour
be Power of obliging
would be wantbf rnXr
'^'
S; o^nfrf"''"^'
^"^
"^
^^-\f
^he Dtn- could take^'lace
otherv^i^
L"by
Ee
In^en
gei of Death,
as it
prefTeson us. Many
Difficul- tion of Covenants
and fince cZ-nlnrc n
ties are not otherwife to be avoided, than by un- their Strength
to' fome Law ,>Tk
""^^ '"
dei|oing
others of almoft equal Hazard
.:^nd pear
hoiTV^could
a^raiw
humairSo^e"
Fate fooner
overtakes
the Coward, than it mafters i eignty capable of Obligations
nlef 1^^cv
.
Ss^pA^ri^he^^S'i-Si;-
hb.^^JSS
S'-
of in r Z ? f
^ "''"''^
^^^' "^^^^'^
Subjefts like other Laws
;
yet even
thus rh^v
Sumr,u^
Bonur.,
xs fo far from
promoting,
that concluded and to be mamtain'd,
that the Obliga-
Comp.SeUenDe
J.
X. u- G. Lib. i. Ch. vii
' Horat.
Lib. iii. Od. ii. ver.
14, CTY. Mors
^fugacem perfequitur virum
;
Kec parch imbeliis juvenu
4
Foplitibus,
timidove tergo.
and
make"routJ"cr"'-,?rn''r'V'
"'"f
'
^"'
"^^ "'"'^
f!''"
''"'="'^'
'^''' "-^^ """ft =ff<^a"l Motive to leflen tlie Fenr, ofDeith
the.- Life,
anTtheP;o
eao7&t^S';f^-h'n^
ti,e Defence of a good Caufe engages us in ?s the
HoAfo?" J:
pie is but
a falfe
Binverv .^^r -r T L '^"i'
''' '^'"
' ?^'* M<='>
^
'he Courag? produced bv any
o her P.-inci
and the Idea
of
ITZCou^^J^^ 7f
'he
Undauntednefs
w^ich naturally follows That Pcrfuaflonl
when t is ftZJ
Aug.
p. ,,8.
"
^'g'ofly 'mprefred on
the Mind.
See the Kcu,-s
of the Rep.
of Leuer;. July
,707 ). 79. and
I
See
. XV.
Note
,0. above
See
what is faid
at the End of . xxi. with N.te6.
Hon
Of
the Law
of
Nature in general.
B o o k 11.
144
tion of natural Law
proceeds
from God himfelf,
the great Creator and
fupreme
Governor of Man-
kind
}
whoby
Virtue ofhis
Sovereignty hath bound
Men to the
Obfervation
of it. And thus much
may be demonftrated
by the fole Light of natural
Reaion. Here then we lay it down as a granted
Truth, that God
Almighty
is the Creator and
Governor of the World,
fince it hath beenlliewn
with fo much Evidence by
wife and learned Men,
and fince no Perfon of Senfe
and
Underftandmg
ever call'd it in
Queftion
'. Now this lupieme
Being having fo form'd
and difpos'd the Nature ot
Things and of Mankind,
as to make a lociable
Life neccflliiyto our
Subfillence
andPrelervation-,
and having on this Account
indued us with a Mind
capable of entertaining
fuch
Notions as conduce to
this End, and having
infinuated
thde Notions in-
to our Underftandings by the
Movement of natu-
ral Things, deriv'd from him the firft
Mover; and
likewife mort clearly
reprefented to us their nccel-
fary Connexion and their
Truth :
Hence it fol-
lows, that it is the Will of God,
Man iTiould
frame his Life according to that
Difpofition and
Method which he feems
peculiarly to have affign'd
him above the Life ot Brutes.
And iince this
cannot otherwife be atchiev'd
and
compafs'd, than
by the Obfervance oi nattnal Lwd;, it
muftbefup-
pos'd that God hath laid an
Obhgation
on Man
to obey this Law, as a Meam not
anfing from hu-
man Invention, or changeable
at human Pleafure,
but exprellyordain'd by
God
himfelt for theAc-
comphfhment of this Dcfign. For when any So-
vereign enjoins his Subicft
the Purfuit of fuch an
End, he is at the fame Time fuppos'd
to oblige him
to make ufe of thofe Means,
without
which the
End cannot be attain'd
. Nor is this the only
Proof of Man's beii.g oblig'dto a focialLite by the
Command of God, that, as the
Condition of
Mankind ftands at prefent, we
could not lupport
and fecure ourfelves, unlefs this
Perfuafion were_
firmly rooted in our Minds; and that by Order of
the divine Providence it Co falls our, that by a_ na-
tural Confcquence our Happinefs flows from luch
Aftions as are agreeable to the Law of Nature,
and our Mifery from fuch as are repugnant to it :
But it is farther confirm'd by this Confidcration,
that in no other Animal there is difcoveiable any
Senfe of Religion, or any Fear of a Deity
>
^
To which maybe added, that tender Senfe of Con-
Vide M. Antonm. Lib. i.v. i.
"
Vide Protag. De Platon. p.
124.
Ed Wfr^. Ficin. ' 'Tis remarkable what
Tacitus fav: A vi Ch vi. of Tiberius. His own Crimes and V'dlames were by his Ccnfaence turn d into the greatcjt Punijh-
ments to hm. And \t was not without Reafon, that thegreateji Majler of
Wifdom us'd to affirm.
That could we open the Hearts
o.f
Tyrants, weJlwuld difcover the Strohs and Wounds of
Guilt : The Body not being more cut and tormented with Strifes, than the
Mind ,s with Cruelty, Luft,
and ill Defigns.
Cicero De Finib. Lib. i. Ch. xvi. If
there be any who think them^ehes
Juffiaentty
cuarded andfecur'd againft
the Difcovery of
Men, yet they dread the
Majc/iy oj the Cods
:
Andjudre all thoje Cares and D,J<;uiets.
which Night and Day prey upon their Minds, to beJentfrom Heaven, as a prefent Punfmentfor
their Crimes Seneca /^Laftant.
Lib vi Cii xxiv Vain Madman! what can it profit
thee to have had no Witr.efs of
thy Vdlany, when thou always carriefi a Con-
fcience about wiih thee r Albricus De Deorum. Imagin. Ch. xxii. A wicked Man ,s never Mafler of
his own Countenance. Add.
Juvenal. Sat. xiii. 139.
The Advantage of a good Confidence
Martial hath thus happily exprels d. Lib. .v. hp. xxiu,
Ampliat itatisfipatium Jib,
vir bonus : hoc
efi
Good Men live twice :
It doubleth every Hour
Vivere bis, vita pojfe
priore firm.
To look with Joy on that which pais d before.
Add. Philoftrat.
Be Vit. Apoilon. Lib. vii. Ch. xvii. <> De Give, Ch. 111. .
ult.
Ch. iv.
$.
111.
\X
'
The flron<Jefl and moft n.itural Proofs of this fundamental
Truth m.iy be found in tcc.'.e's f/iy,)/ ^w-?trirr.
nl'j
B'l^.Ch.x.^.^.ZSrc.
Set
LeClerc'%Latm-X^i!^l\(toiPneumatology,
Part. m.Ch.u
'
^
Ini^n i hif<^<^
^u., ^^ix^
f^oUu., ^fircv ?
^,. ... r5 e.i
.v.yu.u..
^..,
^.. ^.. c.ou..<r.
, .^.yj^f ^^.
iS^uih xJ ivAi,"
.>*., ; e
"
Man is the only one of all the Creatures, who by reafon of the Relation which he ha
to th'edhineBeingithinks
that there are Gods, and ereflcth Altars and Images to them />/; gathered tins Notion from
Socrate. his Mafte, as it appears from what -VwoZ-io^
relates. Memoirs of
Socrates, Lib.\. Chap. iv. \umb.
.3.
See alU
Cictro De Lerib. Lib. i. Chap. viii. and LacUntiui De Ira Dei, Ch. xiy.
fcience inherent in the Minds of Men that are not
corrupted and debauched with Vice; by which
they are convinc'd, that to fin againft Nature's
Law, is to offend him, who huth a foveieign
Power over Mens Souls, and who is to be fear'd,
even when we do not apprehend any Dangerfrom
human
Punifhment
"=.
The Laws of Nature would have a full and per-
fect Power of binding Men, altho' God Almigh-
ty had never propos'd them anew in his rcveal'd
Word. For Man was under Obligation to obey
his Creator, by what Means foever he waspleas'tl
to convey to him the Knowledge of his Will.
Nor was there any
abfoluteNecelYityof a particu-
lar Revelation to make a rational Creature fcniible
of his Subjeftion to the fupreme Author and Go-
vernor of Things. No one will deny but thac
thofe Perfons who were not acquainted with the
holy Scriptures, did yet fm againll the Law of Na-
ture: Which we could not affirm, did this Law
derive its Force from the
Promulgation made of ic
in the ficred Writings. Onthis Account we can by
no Meansadmit of that Notion ftarted hy Hobbes
"J,
Since 1
bo
fcLaivs^ fays he, "w/jich v.e call natural^ are
nothing elfe
but en tain Concluftom apfrchended by Rea-
fon.,conccrninglhings to be doneand Things to be omit-
ted
;
and
ft
nee JLiiv, in a proper Senfe.^
is only the Speech
of
him., idoo by Virtue
of
his Right commands Men to
execute or to abjiain from fome
Performances -y there-
fore
they are not La'xs as theypi-oceedfnm Nature., but
only as they are enafled by God in Scripture. For
we do not take it to be cfTcntial to a Law, thac ic
be conveyed to the Subjects Notice in the Form and
Manner of a Propofition j
but we reckon it fuffi-
cient that the Will of the Sovereign be gather'd
and underftood any way, whether by internal Sug-
geftionofthe Mind, o'r from the Contemplation
of our State and Condition, and of the Nature of
thofe Affairs and TranfaCtions which are to engage
our Life. And indeed he himlelf acknowledges as
much, in another Part of the fame Work
%
where
he obferN-es, that the Laws
of
God are declaredthree
ways;
firji
by the tacit Dictates
of
right Reafon., Sec.
Befides, the Laws of Nature, as they are deduc'd
by Ratiocination, cannot be apprehended other-
wife than in the Manner of Propoficions, and
therefore in this Rcfpcct they may be allow'd to
bear that Name. But as in Civil Laws it matters
nor, whether they be
promulgated in Writing, or
Chap.
III.
Of
the Law
of
Nature
in
generd,
14.5
viva voce ',
fo the divine Law is ofequal Obliga-
^ iVs^-^t S-g*, x^. -^
,r'de^a, A'^r^' To folkiv
tion,
whether it is dxfcovcv A to Men either by
Go-o and to obey Reafonis the
fameThL. But rul/y
God
himlelfin a vifibleShape, and with the Re-
hath left the moft noble Teilimony
for our Pur-
femblancc of a human Voice, or by holy Men,
pofe,as It is cited out of his Bocks
DcRepublicd
bv
peculiarly inlpir'd from Heaven> or whether, lail-
La^antitis
d;
There is indcecl,(^ys
h^,a La-w anrce-
ly. It be work'd out by natural Reafon, from the
able to Nature^and no other than right
Reafon made
Contemplation ot human Condition. For Rea-
kno-.mto all Men, conjlant and perpetual;
which
fan, properly fpeaking, is not the Law of Nature
calU us to Duty by Commands, and deters us
from
ulelf, but the Means, upon a right Application
Sin by treats; and ivhofe Co^nmands and threats
of which that Law is to be dilcover'd. Nordoth
are neither
of
them in ^oain to the Good, though they
the Manner and the Method of promulgating a
may
feem
of
little Force to the Hoicked, this
Law
Law belong to its inward Eflence and Conftitu-
^e are neither allowed to difannul, nor to
diminifi;
tion. Farther, altho' it feem a more clear and a
nor is it pojjihle it JJwuld be totally re-cers'd; the
Se-
more compendious Way of revealing one's Will
natc or the People cannot free us from its Juthority
to another, to force it upon his Senles by exprefs
z^t.,
^, ,,, ^,,^ ^^^
^j^^'.
Explainer or Interpreter
of
Words and Speeches
J
yctthatislikewile reckon'd
it
heftdes ourfehei. Norwill it be different at Kornc
to be fufficiently reveal d, which we muft un-
and at kthms, now and hereafter ; but -will eternal-
avoidably difcover, if wc make ule of the Occa-
jy and unchangeably
affeSt all Perfons in all Places:
fion Offer d, and keep the Way that we are put
God
himfelf appearingtheuniverfal Mafter,theuni'
into. And thus Man, who, by the Bounty of his
^crfal King, 'tis he who is the Inventor, the Ex-
Crcator, enjoys the Faculty of comprehending
plunder, the Ena^erofthis Law
;
which
whofoez-er
both his own and other Mens Aftions and ot
fiallrefufe to obey, Jhall
fly
and loath his own Per-
judging whether orno they are agreeable to hu-
fo^ and renounce his Title to Humanity
; andfliall
man Nature, cannot but take Occafion ((uppo-
thus undergo the
fevereft Penalties, though he efcape
iing there are more Men in the World befides
every thing elfc which
f
Us under our commonName
himfelf) to obferve and confider how fome of
and Notion
of
Piiniflrment. Sophocles fpeaks very
thole Adions do really thus agree to the Inclina-
honourably on the fame Subjea in his firft Oedi-
tion and to the Condition of Mankind
'.
^^,^ ^^t
,j
, g j ^
^.^
/,
Although to render a Law obligatory there is
aNeceffity of making it known to the Subjefl:
j
,
\ / ^
<t
and altho' to deduce the Law of Nature from the
'
^^/"' "t'T^^'^^f'
<^C'
Suggeftions of Reafon, and to apprehend its
Foundation, and its neceflary Connexion with the
'
?
, ;r
-f,u.
Aflions of Princes, or Commonweahhs, than of private Perfons, as Mr. Bernard has obferved
,udge
''^"-^'^%Vi/s Words as a oood and fmart Notion, in his F.Lcn. PMofcfh.
PraH. Page .36. 1 fhall give
m '^'"'"g.W
n^Prence between an
A<Treement and a Law. this would not produce a particular Law diftincl from the natural,
but it muft be
referred to th?t general L.iw of Natm^e which obliges us to keep ..11 Covenants Further neither all
Peol
no nor the
greateft and more civilized Part did ever yet agree together to obferve thofe fbrt of Cuftoms which
C^i\ to belona tS the Law of Nations; n.iy, there is not fo much as One, in which they exadly agree in the Prafticc
^"f^-r How thev^become
Obligatory, See Mr. T/ri/s Obfervat. on Pufindorf,
xci. Num. 14.
Mr. Biidderis's Elemen.
%ul\' traSl V-x^e%o6 Z07.
as a\fo a Difcourfe // i>/r., .1,2, c/f. in Tom. L of the Comment.
&
Opufc of Mr. HrW..
n-ulfecnnA of^thefe' Authors had Occafion to obferve, after he had treated of the Law of Nature the Application
JZ People
might make of it one to another, fo far at le.ift as the thing would permit and require him
V 'Tis not exaftly the Notion of the owa L.iwyers, for they underftand by the I<j-ci. o/W^r;<ii, properly fo called, that
kVK the 1 iolit' of natur.il
Reafon has eftablilhed among all Men. and fo is common to all Nations, ;. e. as the Definition,
fuopofes
to'all thofe that follow the Light of Reafon. It chiefly confifts of fuch Things as the Necefllties and Bufinefs of
Tt obli'^eustoeftablilh,
for we refer to it civil Government, Propriety ofGoods, all Contracts almoft. Slavery, and the
i" J
r
slaves
theki"htsof
Wars, crc. e^itod -vera naturd'is ratio inter omnes homines conjiituit, id apud cmnes
fopulos
\T.aTa4oiitHr,
voeattm^H Jus
Gentium, ^z^^' ?
]ure omnes gentes utan,Hr-Nam
ufu
exigente,
^
lumanis
mceffmnbus,
lentes humane jura qiudamtb, conftuuermt.
Belli etmim ortafunt, C7
captivitatesfecHt^ vjervitutes. Et ex hoc
luregentmm
^oZes
pme Jtraclls mtroduai funt
Inftit. Lib. i. T.t. 2. .
i. 2.
Manumijfwnes quo<^uejuris gentmm funt Ex hoc
Jur
rentiLhitrod'AlUtelia:
difcret^gentes : regna condita : domtnia diJimCia
:
agristmmm pojni
:
^difiua coUocaU: commeraum,
emmonts,
vendifioncs.
locationes, conduaiones.
ohligattones inftitut^; exceftis quibufdam. qm
\:.^]
jure end, introduiU
jum.
TVa ft Lib i Tit i Leg
4
5
So that the Law of Nations is near a-kin to thofe Laws of natural Right which our Author
^Ifu Conditional
"
-'4.
and \ht Roman Lawyers fometimes confound it with the Laws
of
Nature, becaufe the Rules of both
!,P founded
on natural Reafon. See 0>5 upon that Pafl'age of Czreri), where by the Law of Nature. ;. e the Law of Na-
,L^ one Man
can't promote his own Intereft at the Lofs of another : Nequt verl hoc folum Natura, 1. e. Jure Gentmm
Zrkutum
efl,ut non Ineat fui commodi caufa mcere altm. De OfRc. Lib. iii. Ch.v. p.
296,0-r. See alfoMr. Hertius.de Lytro..
,,7.
i
The
Roman
Lawyers do not refer Alarna<-e to the Civil Law, becaufe, according to them, it belongs not only to the
T nfNitions
butLawof N.iture; Nine \
ex ]meUaturAU] defcendit mans atque fi.miiuconjunflio.quam nos
tnatnmonium
.,lh,mus
Diaeft Lib.i. Tit. I. Leg. 1. . 3. They only fay, that to make a Marriage-comraft valid, which is the Effeft
flWeuflw
._^
Law
'both the Perfons who are to be married muft be Citizens of Rome. SeeUlpian. Tit.
5. . 3,4. Seneca,
I R\r,ciis Lib 'iv ?; Boeth. in Top. Cicer. Ch. iv. Likewife, ahho'aM^j//,
to make it valid, requires certain Formalities,
;trstrinaers
can neither make a valid W';//, nor inherit hy^ Will (See Cod. i/i. vi. T,Y.
24.
and !);.. Gothofred. upon it)
v^prthel?fs
Wills were reputed to be from the L.AW of Nations, as appears from this. That a Soldier might make a Perfon
Condemned 'to
Banilhment, or condemned for all his Life to the Mines or Qiiarries, his Heir, becaufe they ftil! had a
Ri'^ht bv the Law of
Nations. Vt funt in opus publicum perpetuo damnati, (7
in mfuLwn deportati. ut ea quidem, qtit
ims
cJiisfunt.
non habeant, qu^ ^ero juris gentium, habeant. Vyi^. Lib. Ixviii. Tit.
9.
^'P'^""' Leg-
.7. .. See
Lib
xNix. Tit. I. De Te/lamenio Militis. Leg. 13. $ i- See alfo the Law of the Code quoted, Lib.tw. Ch.x.
.4. Note u
o
Law
o
Chap.
Ill-
Of
the Laiu
of
Nature in general.
151
itfw of
Nations^
becaufe the former werereftrain'd
to
the
Citizens,
whereas Strangers were admitted
to a
Share and Right in the latter.
Many
Authors do farther rank under the Title
of
the Law
of
Nations^ feveral Cuftoms mutually
obferv'd by tacit Confent, amongft moft People
pretending to Civility
;
efpecially in the Affairs
and
Tranfaftions of War. For after that the moll
polirti'd
Parts of the World came to cfteem Mar-
tial
Glory as the greateft of human Honours, and
to think that a Man had no fuch fairway of fhew-
ing his Excellency beyond others, as by being
able by his Boldnefs and his Sagacity to deftroy
many
of his Fellows j
upon which Account there
perpetually arofe either unneceflary or unjuft Con-
tentions ; for fear great Captains, if they us'd the
full Liberty ofajullWar, fliould bring too much
Envy on their Power, and expofe themfelves to
general Hatred : Many Nations found it conve-
nient to temper the vigorous Fiercenels of hoftile
Proceedings, by a Shew of Clemency and of Mag-
nanimity . Hence arofe the Cuftoms of exempt-
infT certain Things and Perfons from Martial Vio-
lence >
the particular Manners of hurting Enemies
to fuch Degrees, of treating Captives, and the
like. Machiavelm his Prince^ Chap. xii. relates
one Praftice of this Nature, which I queftion
whether it were worthy of the Name and thePro-
feffion of Soldiers >
he fays, itwas firft introduc'd
by Jlberigo de Coffio of Romagna, and kept up in
the Italian Wars of the laft Age, chiefly by the
foreign and mercenary Troops j the oppofite Ge-
nerals endeavour'd with all poffible Induftry, to
rid themfelves and their Soldiers of all Trouble
and Fear : And their Way was, by killing no one
in Fight ; only taking one another Prifoners,
whom they afterwards difmifs'd without Ranfora.
When they were in Leaguer before a Town, they
Ihot not rudely amongft them in the Night ; nor
did the Befieg^d diftuib their Camp with the like
Incivilities. They made no Intrenchments for
their Security whilft encamped ; and when Win-
ter came on, never lay at all in the Field. And to
behave themfelves in this manner was Part of their
Difciphne and Inftitution. An Agreement fome-
thing like this Strabo tells us of, Lil>. x. between
the Eretrians and the Chalcidians^ forbidding the
Ufe of miflive Weapons againft each other. To
which we may add the Cuftom obferv'd by the
antient Indians, of letting the Husbandman re-
main fafe from all Injury and Moleftation, even in
civil Wars
.
But altho' thefe Cuftoms feem to include fome
kind of Obligation arifing from tacit Confent}
yet if one who is engag'd in a lawful War, fhall
neglect them, and protels that he will not be bound
by fuch Reftraints
;
provided what is contrary to
them may be rightly done according to the Law
'
Arrlan. in Indicis, Ch.ip. xi.
*
Cuftom never obtains the Force of a Law in any State, but by the tacit Confent of the Sovereign, which may eafily
be prcfunied : But vchen one People treats with another, how muft it be determined what repeated Afts, and what Space of
Time (hall render a Cuftom obligatoi7 ! Moreover, ereat Revolutions often happen, infomuch that not only the Sove-
reign,
but alfo the Government itfelf is wholly changed; and in this Cafe, why (hould a new State, or a new Prince, be
obliged
exaftly to obferve a Thing which they never confented to ? This is what Mr. Hertius has well obferved. See his
Difcourfe,
De Lytro, before quoted, .2.
'
SatokW Rac/!elii is plainly meant here, asappearstomeby what Mr. Hfrj fays in the fame
Difcourfe, $. u. where he
mentions a Difcourfe, De Jure Gentium, of that Lawyer, who was Profeffor .nt K;i in the Province of HW/w.
*
See what is faid Note i. .11. Ch.9. Lii, yiii,
cannot
of Nature} he is guilty of no other Sin, but
^
fort of Unskilfulnefs, in not adjufting his Pro"
ceedings to the nice Models of thofe who reckon
War in the Number of the liberal
Studies. As a
Gladiator is accus'd of Inexpertnefs,
when he
wounds his Antagoniftotherwiie than by the Rules
of Art. Whoever therefore wages War in a juft
Caufe, may flight thefe Formalities at
Pleafure,
and govern himielf purely by the Law of Nature :
Unlefshe thinks it more for his Intereft to obferve
them, as a Means to render the Enemies lefs ievere
towards himfelf and his Men. On the other hand,
he who profecutes an unjuft Quarrel , if he
punctually fulfils thefe Niceties, is fo far in the
Right, as to appear wicked with fome kind of
Temper and Moderation. However, thefe Rea-
fons not being general, cannot conftitute any Law
of an
*
univerfal Obligation. Efpecially fince as
to any Reftraints which depend on tacit Agree-
ment, it feems reafonable that either Party fhould
have the Liberty of abfolving themfelves from
them, by making exprefs Declaration that they
will be holden by them no longer, and that they
do not expeft or require the Obfervance of them
from others. Hence we find many fuch Pra6liccs
to be worn out
by Time, or overcome by the
Prevalence of contrary Cuftom. Neither have
7 thofe Men any good Reafon of Complaint,
who cenfure this Doftrine as a Notion bv
which the Security, the Intereft, and the Safety
of Nations are robb'd of their fureft Guards
and Defence. For the Enfurance of thefe Advan-
tages and Blcffings doth not confift in thePraftice
of fuch mutual Favours, but in the due Obler-
vance of the Law of Nature , a much more fa-
cred Support ; and which whilft they enjoy, they
have little need of inferior Methods of Protection.
And fure it ftiews much more Excellency and
Worth in any Cuftom, to derive it fi'om the Law
of Nature, than to eftablifti it only on the Con-
fent of different People.
Amongft the chief Heads of that voluntary Law
of
Nations \vh\chGrotius maintains, he reckons the
Law
*
of Embaflies. Now as to this Point it is our
Opinion, that the Perfons of Embaffadors are fa-
cred and inviolable, even amongft Enemies, by the
meer Law of Nature
}
provided they do not come
purely as Spies, nor enter into any hoftile Defign
again'ft the Perfon to whom they are fent ; altho'
in the ordinary Courfe of Bufinels, and of Trea-
ties, they prefer their Mafter's Intereft to all others.
For inafmuch as fuch Perfons are neceffary for
the procuring, the preferving, or the ftrengthening
of Peace by Leagues and Covenants
j
and fince
the Law of Nature enjoins us to embrace Peace by
all honeft Ways, it muft at the fame time befup-
pos'd to have provided for the Security of thole
Men, without whofe Intervention this good End
1^2 Of
the
Law
of
Nature in general, Bo o k
II.
cannot be obtain'd '. To this Right of perfonal cerning the keeping
of
Faith^ doth oblige us to (land
Safety, is join'd another of being exempted from to fuch Agreements
j
yet the Agreements them-
the Jurifdiftion of the Sovereign to whom they felves cannot be call'd Laivs^ in any Propriety
of
are fcnt
j
at leaft in all Matters relating to their Speech or of Scnfe. Befides, they are almoft infi-
Office. Since otherwife they would not have full nite in Number, and commonly are fettled only
Power and Liberty to promote their Mafter's In- for a Time. Nor do they any more conllitute
a
tereft, with due Application and Vigour, were Part of Law in general, than the Covenants
and
they oblig'd to give an Account of their Manage- Bargains of particular Subjefts with each other
ment to any Authority, befides that which they do belong to the Body of the Civil Law of the
reprefent. Other Privileges commonly attributed Kingdom : But they are rather to be elleem'd
the
to Embafladors, efpecially to thofe who refide in Subjeft and the Concern oi Hijiory
<=.
Courts, not for the fettling or the fecuring of XXIV. Of all the Divifions of natural Law,
Peace, but chiefly for the diving into the Secrets that feemstous molt accurate and mod convenient,
and Policies of a State, thefe depend abfolutelyon which confiders, in the firft Place, a Mill's Beha-
the Indulgence of the Prince who entertains them
>
'viour towards himfelf, and then towards other Men.
and therefore, if he fees convenient, he may de-
'
Thofe Precepts of the Law
of
Nature
which
prive them of thefe Favours without the Breach of bear a Regard to other Men, may be againdivided
any Law, provided he will fuffer his own Mini- 'mto
abfolate zn^ hypothetical, or conditional.
The
fters abroad to be treated in the fame Manner. former are fuch as oblige all Men in all States and
The
'
Right of Burial, which, according to Conditions, independent fi-om any human Settle-
Grotius, feems likewife to make a particular Head ment or Inftitution. The latter prefuppofe fome
of the Law
of
Nations, may be well referr'd to the publick Forms and civil Methods of Living to have
common Duties of Kindnefs and Humanity
b.
Nor been already conftituted and received in the World,
are the other Inftances which he offers of Confe- Which Dillindion Grotius hath thus exprefs'd
in
quence enough to ellabliih a new Species of Law, otherWords
i
'the Law
of
Nature is concern"d^not on-
fince they may with Convenience enough be al- ly about
fuch things as
exifl
antecedent to human JVilJ,
low'd a Place in the Syftem of the Law
of
Nature, but
likewife about many Things whichfollow upon
fome
As for thofe Perfons who
'"
rank under the Law jiSlsof thatWill.'-^ Whence altho'theZ)o?i/oor
of
Nations, the particular Compacts of two or more
"
the Propriety of Things, as it now Hands, is efla-
States, concluded by Leagues and Treaties of Peace,
"
blifh'd by the Pleafure of Men
j
yet fuch a Settle-
to us their Notion appears very incongruous. For
"
ment being once
fuppos'd,;;/m7z,aw informs us
although thz Law
of
Nature, in that Part of it con-
"
that 'tis a Sin to take the Goods of another Man,
Add. Marfelaer tegat. Lib. ii. Ch. xiii.
>>
Add. Ant. Matfh. Be Crlmin. Prokg. Ch. iii.
. ?.
<:
Add. SeldeK
He ManClaufo, Lib.'x. Ch. ii. Concerning KWU'nVffwidifj, or C/?ow, befides others, fee c/fr. ad Gra;. ii^. ii. C/;. iv.
.
5
' Altlio' after Deathwhatever Treatment the Corpfe of the Dead meets with, is all one to it, the Right of Burial is not a
whit the lefs founded on the Law of Humanity
;
infomuch that it is a kind of Punilhment to be deprived of Burial, as the
Prafticeof Civil Judicatures fhews, andthe Uneafinefs of fuch as in their Life-time are troubled at the Thouolits that their
Bodies, when dead, fliall be caft into the Highway. To this we may add, that, according to the Cuftoms and ordinary O-
pinions of Men, Burial is a Mark ofHonour. Now to deny a Man the Honour that he may lawfully claim, although but by
an imperfeft Right, is without Contradiftion, a Breach of the Law of Nature. It is to no Purpofe to objeft, that a dead
Manisnot fenfibleof whatisdone tohis Caicafe, yet he may be really wronged for .all that, for 'tis not neceflary that an
injured Perfon Ihould know or feel the hurt done him, or be in a Condition to obtain his Right. (See Lib.'i, Chap.i.
.y.
Note
4.)
AH the World agiee, th.it an Infant in the Cradle may be wronged, and fo may an Idiot, althouh'the f^rft knows
not what It fuffcrs, and the other does not underftand the Hurt done him. Laftly. the Relations and Frieiids of tlie De.id
do in fome Manner reprefent his Perfon, and have a Right to require the Honour of Burial for him. But, by Burial we are
toobferve, that all the Lift Duties to be paid to the Dead are anderftood, whether it be by burning of the Body, or inter-
ring it
;
for this depends upon Cullom, which alone detennines how the Memory of the De.nd is to be honoured. More-
over, as we have intimated, a certain kind of Punilhment is fometimes inflicted upon the Bodies of fuch as have committed
enormous Crimes
;
and this is chiefly praftifed upon fuch as have killed thcmfelves, and confequently the Ma^iflrate cannot
punith them any other way, to affright others and difcourage them from the like Attempts. But the Rights ol" War do not
c.\tendfofar, as to deny Burial to flain Enemies ; this Refufal anfweis not to the Lawful Ends of War, and can have no o-
ther Principle than barbarous Cruelty. 1 have taken this almoft all out of Buddsus's Element. Philofoph. Praii. We may add
upon this laft Article what Plato f.iys, vix.. That it is a great Piece of Cowardice to treat the Body of him with whom we are
Tom. 11. Mr. Thomajius nevcrthelefs maintains, that there is no Evil in refufing Burial to Enemies, ;jnd he affirms it a Thina
altogether indifferent; but I leave it toothers to examine whether what he favs'about it in his foy?;r/. Jidrifpr Di-vin Lib Vn
Chap. X. deftioys the Principles I have laid down. He alfo fays. That fuppofing there be fome Obligation to .nant a Bu-
rial, the Retufal of that Dutvof Humanity is no juftCaufe of War. I own it, but it oughtto be confldered, tlut this Re-
fufal in fome Cafes (hews a bloody Difpofition, and may be more juflfy made a Caufe of War, than many other Thinas
that are.
' =>
"
'Tis the fame Mr. R.jf^fi;/, beforementioned, inhis Book Dejtire gentium, in which he follows Herman Conrlnziui's
Difcourle, De
Jure, as I underHand from Mr. Hertius.
*
^/.- ^i^!^'.-,.
'
'^^ '""'^ ^^'^' 'ou'ards God. See what is f^iid above,
. 1^. Note 5. and in the next Chapter,
. 5. Note 2
This Divilion IS very n.uural and antient. We find it in Tufc. &u4. Lib. i. Chap. xxvi. Hu philofiphia nospr.mum
adlllorum
\Deorum\ CHltum, demde ad;us hominum,
quodptumeftin genens humanifoaetate, turn ad modeftiam, magnitudmemque
an'mi
erudmt I.e. " Philofophy
te.iches us fi.ftof all the Worfhip of a God, then the Duties of Men one to another
which are
" founded upon the Society of Mankind, and then on a Moderation and Greatnefs of Mind." Every one knows that the
Gofpel obliges us to relpecl God, our Neighbour, and ourfelves, as the three principal Objeas, and greateft Originals of
our Duty. This Divifion is clearly deduced from St. Paul's Words, T,t. ii. 12. Jhe Grace
of G o d, which Irmgett Salva-
tion
teacheth us to deny Ungodlmefs and worldly
Lufts, and to it-vefoberly, right
eoufly,
and godly in this prelent World
We may alfo nere take Notice of th.u Paflage of the Philofophick Emperor, Tf..; c^,,ri,. v. p:
=f.,
r nm ^"e^LlX" i ^rji,
T>i S-fi cci-My, cc(p
<i <rvij,^ct,.i jrao". ^a,Tu,^
^
^fccrg^ o-i,^oix.Ta.i 1. e.
"
We have three Obligations,
the one to the Caufe
" which IS furrounding us, i.e. our Body; the other ties us to the fupreme Caufe from whom all Things come which hap
" pen in this World, i.e. Go d, who is the univerfal Reafon ; the third and U& obliges us to all Men.
t e as ioined in So-
"
ciety." M.Antonin. Lib. \iu. .zy,
>
1
*'
without
Chap.
III.
Of
the Law
of
Nature in
general.
1 ^ o
^
j6
"
without
the Owner's Confent
*."
That is,
there
are
many
Things which as to thcExcrcifcof
the
Aft are
arbitrary, or where it is left to the free
Pkafure
of Men, whether they will perform fiich
an Aft,
or no : But the Aft being once perform'd,
there
follows
upon it, by Virtue of fome Precept
of
the
Law of Nature, a moral Neceffity or Obli-
gation}
or elfe the Manner and Gircumltanccs of
the
Aft are by the fame Law adjulled and deter-
niin'd.
Thus, for Example, altho' the Law of
Nature
doth not command me to buy of anotherj
yet
fuppofing
me to buy at my own Pleafurc, it
commands
me not to feek my own Gain to the
Damage
of the other Party, nor to cheat him in
the
Bargain.
And many fuch Precepts of the
Law
of Nature there are, which cannot take
Place,
or indeed be underftood, unlefs upon Sup-
pofition of diftinft Proprieties of Things, and of
the
Eftablifliment of civil Authority. Yet it can-
not hence
be prov'd, that even all pofitive Laws
are
Part of the Law of Nature, becaufe Nature
obli<Tes us to obey the Commands of the fupreme
Maoiftrace,
tho' our own Confent gave him his
Sovereignty over us. Thus
much indeed is cer-
tain, that the Violaters of civil
Laws do, by break-
ing their intervening Covenant,
mediately fin a-
gamft the Law of Nature. And yet there ftill re-
mains a prodigious Difference between
thefe na-
tural Laws which we call hypothetical^
and the po-
fitive Laws of civil Governments
j inafmuch
as
the Reafon of the former is drawn from the Con-
dition of Mankind confidcr'd in general
> but the
Reafon of the latter is taken from the particular
Intereft of any Nation or State, or from the bare
Pleafure of the Legiflator. Therefore our civil
pofitive Laws are not fo many Precepts of the na-
tural hypothetical Law, but do only borrow their
Force of obliging ' in human Regard, from the
Virtue of fome fuch hypothetical Precept of Na-
ture. Now of thofe human Inititutions which
ferve for Foundations of thefe hypothetical
Pre-
cepts, the three chief are * Speech^ the Dominion
and the Price of Things, and
s
human Sovereignty^
or Command. And by this Divifion we fhail here-
after guide our Proceedings, when we arrive at
that Part of our Defign.
a
Vid. Leg. i. . 5. T). De funis. Leg. xlii. D. Ve verbt Signif.
*
See above, . 12. Notei.
Tlie Lift Editions fay, in faro humano, and the Englifh Tranflator follows them, rendring it, in human Regard,
whereas
the firft Editions expicfled it, in for Divino, as the Reafoning of the Author plainly requires; and Mr. Her-
tiu!, in his Edition in 1706, hath fuff'-red this Miftake to pafs.
4
See "Sote on . %. Lib.m. Chaf.ix.
5
All that our Author fays in this Chapter refpeifts only the Obligations of the natural Law, which obliges us to aft or
notaft
indifpenfibly,
and which hath for its Objeft fuch Aftions as contain in them an Agreeablenefs or Difagreeablenefs
to the human Nature ; but, as 1 have already faid above, Lili.i. Ch.\i. . 16. N. i. we muft acknowledge a natural Law
of fimple
Permidion, by Virtue of which we may do, or not do, according as we judge fit, every Thing which has not a
neceffary
Anreeablenefs or Difagreeablenefs with the Nature of Man, unlefs it be exprefly ordered or forbidden by fome
pofitive Law,
either divine or human. 'Tis upon this natural Law of fimple Permiffion, that all Rights, aswell natural as
acceflTory and acquired, are founded, as Liberty, theRight of fuffering no Evil from others. Empire or Authority over
Perfons, and other fuch like Things, which ordinarily receive divers Changes, according to the Will of Man. Por Ac-
rions
permitted by the Law of Nature miy become obligatory, and afterwards return to their natural LidifFerence. Mr.
Selden (as is before obferved) acknowledgeth this Right of fimple PermilTion. See his Treatife DeJureKat. cyGent.fe-
(undurn Hebnoi, Lib. i. Chap. viii. And if we examine what our Author fays hereupon in the Beginning of
J.
^z. we
Ihall find, that he
can't forbear owning a Right of fimple PermilTion, See Lib.'i. Chap.
\i.
. 15- ^"f^ ^-
CHAP. IV.
Of
the Duties and Terformances
of
Man towards him[elf\ as well
in Regard to the Impro'iiement
of
his Mind, as to the Care
of
his
Body and
of
his Life,
The Contents.
I. Every Man is to take Care
of himfelf.
II. In isjhat that Care
confifls.
III. lHoe Mind is to be infiruUed in Religion.
IV. And all corrupt Opinions to he rooted out
of
it.
V. ^ke Knoivledge
of
a Man's
felf
is necejfary.
VI. A Man (l:ould know his Soul and its Offices.
VII. And how great its Abilities are.
VIII. Nothing above its Abilities may he attempted.
IX. How ynuch we are to labour after Fame :
X. And how much after Riches:
XI. And about Pleafures.
XII. Our Raffions are to be governed by Reafon.
XIII.
Of
our Studyfor
Learning.
XIV.
Of
the Care
of
the Body.
XV.
Of
the
Ufe of
Life.
XVI . IVhat Obligations weare under to preferve Life.
XVII. How far our Life is to be imployed in the Ser-
vice
of
others.
xvm. IVhether it is to be endangered for
them.
XIX. Whether Self-Murder is lawful.
A Ltho' this be a Quality common to
'
Man, for his own Prefervation, and is
naturally
glad to
l\.
with other Animals,' that he is concern'd be in as good a Condition as
poflible
;
yet that
Mr. Barb. NO TE S on Chap.iv.
.
.
.l.
ThlsObieftion ught f^rft to have been anfwered, before our Author had entred
upon this Subieft, r;i. How
a Man can be
under any Oblijation to himfelf? Our Author meddles not with it till he comes to
. 16. where fee
Kote I.
This
Negleft proceeded from hence, that the fifteen firft Paragraphs
were not in the firft Edition, but bemg.
idded in the
fecond, the Obieftion became fo far poftponed. ,. ,
.
X
^'*
1
54
The 'Duties
of
Man with regard to
himfelf. Book
II.
his
= Care of himfelf ought to be of a much more draw us all, more or lefs, out of the ftraioht
Path
refin'd, and of a much nobler Strain, than what ofReafonj and unlefs we bridle and reftrain i hem
we can fuppofe in brute Creatures, there is good pour out a Flood of foul and unworthy
Adtions'
Reafon to conclude
:
Not only becaufe he hath thro' the Courfe of our whole Lives.
And
it
receiv'd more Endowments than they, andfuchas may, perhaps, quicken our Induftry, to
confider
are more capable of fruitful Culture and of ufcful that we have but one Time allow'd us to act
our
Improvement
j
but farther, becaufe he cannot per- Part in, and cannot hope for a fecond
Entrance
form the Duties to which he ftands oblig'd, unlefs on the Stage, to amend the Faults of our
firftPer-
he brighten and quicken his Faculties by good formance. For that old Complaint
in
Euripides
Exercile, and make them more vigorous and more will ever be as vain and inefFeftual
as when it
was
ready, in the Production of worthy Anions. Be- firft made
'
:
fides, the Labour which a Man fpends on his own
Improvement, is not terminated in himfelf; but Me miferable ! that Men fhould be deny'd
fpreads abroad its Fruit to the Benefit of all Man- The Gift of fpringing to a fecond
Youth
kind ; and the better any Perfon approves himfelf A double Age ! The Struclures
which we raife
in the Management of his own Gifts and Abilities, If found detedive, later Cares reform,
he is juitly elteem'd the more excellent Citizen of New modell'd : But our own unhappy
Frame
the World, and the more generous Benefa6tor to Stands without Change, and falls without
Repair
J
his Fellows. Wherefore Man, in his Endeavours
to fulfil the Laws of Society, to which he is by his O ! might we turn our Steps, and tread awain
Creator directed :.nd defigned, hath good Reafon The Path of Life, what Slips we once
hadmade
to imploy his firlt Pains and Study on himfelf
j
We would correft, and every cheating
Maze
fince he will be able todifcharge his Duty towards Avoid, where Folly loft our Way belore.
others with fo much more Eafe and Succefs, the
more difgent he hath been in advancing his own
*
Now fince Man confifis of two Parts, a 4
Soul
Perfection. Whereas he who is unufetul to him-
and a Body^ whereof the foimer is the great Prin-
felf, and idle in his proper Concerns, can give o- ciple and Springof human Actions, the latter fup-
ther Men but little Reafon to expe6t Advantage plying the Place of a fubordinate
Irftiument
the
from his Pains.
Care and Improvement of the firlt and nobleft
There is fcarce more Neceffity for our engaging Part, may juitly challenge the
Precedence in our
in this Care, than there is Solicitude and D fficul- Endeavours
s.
ty in the Profecutionof it. For, in the firlt Place, II.
'
The Culture of the
Mind, which all Men
Men are born in an entire Ignorance of Things, are oblig'd to undertake, and which is abfolutely
and theirMinds whilft yet tender, may be eahly ncceflary for the Performance
of human Duty
fo far defiled and tainted with vile Opinions, that confifis chiefly in thefe Particulars
;
that we ob-
it will afterwards be no eafy Labour to wafii off tain true Opinions concerning
all fuch Things
as
the Stains. Refides,
we bring hereditaiy and in- our Duty bears any Reference to, that we let
a
bred Cormptions with us into the World, which right Judgment and Price on thofc Obje6ts
which
^ Our Author here puts the Cire of preferving n Man's felf, before that of perfefting himfelf, which is indeed
the
more natur.il Order; lor befides that the Idea of Prefervation is a Thing more fuiu;le than that of Perfeflion, our Beino-
certainly pre-exifts our Well-being; and in vain a Man thinks of perfeiting hinifeff; if he has not before taken all the
Care he can of preferving himfelf. But if the Author exprefies himfclt well in this iirft Period, 'tis by mcer Chance
for he forgets himfelf the next Moment, and takes a clear contrary Method in this Chapter; for all he fays in this,
and
the thirteen following Paragraphs, concerns only, the Care of pcrlccling a Man's felf; and he begins not till the
fif.
teenih to fpeak of his Life and the Prefervation of it. Further, we muft obferve, that according to the Principles
I
have above laid down to reftify our Author's Notions {Chap. in.
. i-;. Note';.) the Duties of Man to himfelfdireftfy
and
immediately flow from Self-love, which obliges him both to prefervehimlelt; and put himfelf into as good a Condition
as
poflible to attain all the Happinefs that he is capable of. Montagne'i Words may be pertinent here.
"
The
princi-
'
pal Office (fays he) which we have here, is for every one to govern himfelf. 'Tis the chief End of our Beino-
" here. He that forgets to live well and pioudy, and thinks to difchar<Je his Duty bv ordering and mana-^in'^^
others"
" is a Fool. He that is carelefs of his own Health and chearful Converfluion, to l^erve others, takes, in my Opi-
" nion, an ill and unnatural Courfe."
Effays, Lib. iii. Chap. x.
p. 748.
But we mufl; always fuppofe, 'that
Self-love
muft be managed according to every one's Condition, and without any Prejudice to Religion or Society.
See the"
general Rules which 1 have laid down in the Note above quoted.
'
Euripid. Supplic. 1080. (y
feqq.
Ol' /mi. n' <?i fl^crcuriv ix. hi' rah
TtauiXitrm u^i^cciirit i^o^ii/AiSa.
'Aimcc e^' ix. I|tr(i', ti eX' iifSfi vioi
AitAS
fills ^Ld^itTii, t^offlajU/fS'' M.
See Gataker upon Marcus Antoninus, Lib.n.
. n. p.
60. Edit. Londin. 1652.'
* So Saluft fpeaks, Sed omnts
noftra vis in animo cr corpore Jita eft.
Animi imperio, corpoorU fervhio maris utimur
alH
termn nobis cum Diis, alterum cum belhiis commune
eft.
De Bel. Catilin. Chap.i.
'
s
Thus Pi;?/tf judicioully refleds to the fame Senfe, Kl
f<J'
tSt-o
^
[i^oAoy>,J)] iVi v]-x-;k5 htit^iMrUv, v^.
ui Tro /JAsAw
. -ZoifiMTm
T
;^" xfD^irak T tVi^sA^w
irffoi? jrfaJ^oro,, i.e. We
viuft
allconfejs, that the Soul is to be
chicly taken Care
gf,
and above all Things to be looked
after. The Care
of
our Bodies and Eftates we may commit to others.
In Alcib, i.
f.
448.
See alfo his Book De Legib. Lib.y. in the Beginning; and Cicero De
fin.
Lib. v. Chap. xii, xiii.'
. II.
This Paragraph and the following afford an Example of the Correflions and Additions
which I have made
of the Lemma's in the Margin, to fit them to the Subjeft treated on. The Author fhews in what this Care confifis
as if he were fpeaking in general of the Care a Man ought to take of himfelf, whereas this Paragrph
treats only of
the Care of the Soul in Oppofition to that of the Body. In the following Paragraph he diftin-'uHfies
and explains
more diftinftly the ditfeient Duties,, which make the Paits of the general Duty.
'^
*
3 commonly
Chap.
IV.
The Duties d/ Man with
regard
to
himfeK 1
1
1
commonly
excite our Appetites, and that wetem- Choice. That this
eternal
Being
cxercifes a So"
per and
regulate our Pallions by the Diredion of vereignty not only over the
whole
World
or over
found
Realon
'.
Mankind in general, but over every
individual
hu
III.
AmongfttheOpinions then which it high- man Perfon : Whofe
Knowledge
nothing
can
ly
concerns all Men to Icttle and to embrace, the efcape : Who, by Virtue of his
imperial
Rieht
Chief aie thofe which relate to Almighty God, hath enjoin'd Men fuch
ceitain Duties by
natura}
as the great Creator and Governor of the Uni- Lazv, the Obfervancc
of which will meet
with
his
vcrfe.
That there is really exifting a fupreme Approbation, the Breach or the Negle6>-
with
Being,
from whom all other Things derive their liis Difpleafure: And that he will for this
Purpofe
Origmal, and the Pnnciple of their Motion
j
not require an exaft Account from every Man of his
as from a dull and fenfeleis Power (as the Weight, Proceedings,
without
Corruption and
withouc
for Example, in a Clock) but as from a Caufe en- Partiality
'.
du'd with Underftanding and with Freedom of Now as the main Parts
^
of human Duty
turn
on
5fMhatIi.i fine P.i(rage to this Piirpofe, which begins thus,
Ef'fiAxvi.mt.Grofiov. An.mus mt^ens vera, ierltus
fun-
endonim ac fetendorum, nonex opinione,
fid
ex yiatura prcua rebus vnpo>2ens
fuuherriwus, crdtnatiljhmis. cum decore
cumv!rib,<sf.viU!a'J>ccus, imperturhatm i:rc. t.e. " The Mind looks into the Truth, is skilful in knowina what is to be a-
" voided and defired; fets a Price on Things, notaccording to the common
Opinion, but accordin<T to ks Nuiu-e -
'
is moft beautiful, orderly, graceful, and the' ot great Force, vet is found,
uncorrupted, and undffturb'd
<^c'
$
III.
;
Prmuefi Demtm cultus (fays iecc^) Deos credere, demde reddere Mn
majeftatem
Jmm. redden bonitatem, Hne aua.
nulla majefiasejt.
Sere,lies
efe, quifr.pdemmunde, qui univerJaiufuA temperam,
qmkay>amgeneris
futelam^erHnt,
LterLm
cur,o[,iinguloriirr,. Hi m< dant malum, nechabent; caerum caftigam quofdam, i^cocrcem, <:j- irrogant toetias,%
alimando Ch-
ciebompunnuit. \
is Beos propniare
?
bonus
efto. Satis illos colult, qmjqms tmitatus
eft. Epift. xcv le
"
The Worthi- ot
"
God confifts, firft of all in belie^^ina that they are, and then in acknowledging
their Sovereign'ty 'aild Goodnefs, without
whicntherecanbenorea Greatnei^. We muft alfo be throughly perfiuded, that they govern the World, and bv their
" Power order and difpofe .ill Things who take Care of Mankind in ^nera), and fometimes concern
themfelves in pri-
" vatcAff.-ii.s They neither are evil, nor do any, yet they correft ftmePerfons to reftrain their Malice,
vea andfome-
" tunes pitnilh them whom they feem to favour. Would you have them propitious and kind to you
>
e aAod Thev
" honour them moft who imitate them." Stt Cicero De Leglbus, L,b. ii. Chap.vn. :iM Epi^ht. Enchirid
Cha:> xx'xvNi
'Our Author i^^his Abridgment
of
the Duues
of a Man and Citiz.e>?, Lib.i.
ChaP.iv. hath given US a Svftem of nituril
Religion; t.e. the Duties of Man to G o d
;
which, becaufclhave faid. Chap. id.
. ,, a4
5 m.4t norto be e c i7
ded our Knowledge of the Law of Nature I (hall here give anExtraftof what he there fays, which fs,' Thefe Duti'^' fo'
tar as they can be difcovered by the Light of Reafon only, may be referred in general, to fuch as concern t tu. v\,
ledge, and, ..
The Worftip of Go .. Sothatthe Syfiem of^atural Religion compHzes
P^^Jofi^i:.".:,
V. Ipecult vT
and, 2.
Praaical. The fpeculative Propofinons are, I. Th.it we muft believe,
,. That thereisaGoD
See lo of^h^
foregoing Cnapter z. That this God .created the World. See his Abridgment
of the Duties
of
a Man and Ckhen Lib i
Chap.^.
f.3. 5.
That he governs all Things by his wife Providence, which takes particular
Care of all Mankind'
And
indeed It is the fame m refpeft to Morality to deny the Exiftence of God, as his Providence, as the Pagans
thenifclves
did acknowledge. See the Paffages quoted C,^^ v. Ub.u
.,u Notes.
4. That nothing can be attribufed to Go d hit
.mphes the leaft Imper edion For, f.nce he is the firft Caufe of all Things, he can't
be'fuppofed,
widiout a man teft
Abfurdi.y, tohaveanylmperfeftion nor want any of thofe Perfeftions, of which we. who are his Creature can fonn
to ourklvesaiiy Notion. See the ^ir/^.^.^ribove
mentioned,
. ,. and what is faid in the next Paragraph
of'this Chau
ter. The praftical Propofitions of natural Religion contain all the Parts of, U. Divine Worfhip
; whidi is either oun ifd
or mward. The inward confifts m the Honour that is given to G o d. Now Honour being nothing elfe but the Opink^n
which we have of the Power or Goodnefs of any Thing, we honour God,
when with regard to his infinite
PoweV-^nd
Goodnefs, we conceive of him all the Sentiments of Refpeft and Reverence we are capable of From whence it follow,
that we muft love him, as the Fountain and Author of all gpod Things, hope in him, as the Being upon whom all our Han'
pinets depends both now and for ever
;
fubmit entirely to his Will, having a Perfuafion that he will do all ThinaVS"
our Good, and that he knows better than ourfelves what is convenient for us"; tofear him, asa Being of infinite
Power bv
which he IS able to mflict the m_oft terrible Evils upon thofe that offend him; laftlv, to obey himin all Thin<.s
with the mol
pro ound SubmilLon as our Creator and Lord, Almighty, and of all Goodnefs.
Outward Wordilp
coSfifts
princinanv
m the following Duties.
.. We muft give God Thanks for all the <iood Tilings we receive from him ^
We mur !^
farasinusl.es, regulateour Aftions according to his Will, ;. .. adually obey him, fo far as Ignorance and
human Fwikv
Will permit.
3.
VCe muft .tdmire and celebrate his Grcatnefs.
4. We muftaddrefs ourfelves tS him by Prayer
o obtah^
a^l the Lleffings \ye ftand in need of, and to deliver us from all the Evils which threaten us. Indeed,
Pr.irer is 1 Si-n of o
.-
Hope and Confidence, and Hope implies a fpecial, though tacit Dependence upon the Goodnefs and PoWer of hinfin
whom
we truft.
,.
When we are obliged to take an Oath, we ought to fwear by the Name of G o d, and afterwards
obferve i-e
hgiouily what we have engaged ourfelves to, by taking God to Witnefs, as his infinite Knowledge and
Power does e^
quue. 6. We ftiould never fpeak o G o d but with the greateft Care and Circumfpertion, for it's a Si^n of Feir and
that IS a tacit Regard to the Power of him whom we fear. From hence it follows, that we muft not ufe
the^Name
of G o a
hglKly and without Neceffity in our common D.fcourfe, for this iliews want of Circumfpedion
; that we Oiould neve, take
an Oath, but upon NecelTity
;
that we fhould never curioufly and nicely fearch into the Nature of G o d/ and the Afts of hi!
Providence; tor that were to confine the divine Nature within the narrow Bounds of our own feeble Reafon
7 Wh.
everwedom i-elat.on to G o d, ought to be moft excellent in its Kind, and proper to fliew our mort profound
rS
J vt 7
7"'
""';
''","'
=>"dfervehim, not only in private, but publick, and in the Si4t of Men For
What a Man does only in private, ooks as ,f he were alhamed to do it. Whereas Jublick Worfhip is a Te,onv not o2
of our Zeal but is alfo an E.ximple to others, and often induces them to join in the fame Actions.^
9. And laft y
^
We
uft
.pply ourfelves as clofe as poflible to the Praftice of fuch Duties as the natural Law prefcribes,
both refpeft t'o ouifeTves
a^Kiothei-s; which fome call an ;Ar.>Z Worjhtp.
_
Indeed, as the Contempt of God's Commands is the*^' reateft Aff one
we can offer to him fo, on the contrary, there is no Sacrifice fo agreeable to him as Obedience to his Laws Now the
Law of Nature is a divine Law, as we have before proved. This is what our Autiior has delivered n n\Lr]
1
T ]
fever-tlPalfages of Heathen Authors to this Purpofe*, but this Note is already
toriot-Ne'ert
ekfrve.Tdf^^
l^nJT/'%
('/?''
>''/^^--f'^i
Chap.i.
J. ,,,c^,.) hasfaid,
.,J That thrLaw of Natlx
iiXfJ nfi^^^
qunes a direft outward Worftip, fo far as is neceffary to Ihew tliat we do not contemn the Deity and not fo 1 is confifts
ThIs'bfe'Zitv"
"7'--'he-I^-y'
l^yf-- exterior Ads, the Omiffion of which is ni,'s gn of SmemVt tol^'
ItHei th nw^HWnt'
>"
"^t" i''";? '^'"'^//.'"f
" ""^ ^ ourService,
andlhat ashe is the^earh^;
^eS.nion i. ,7 r^'^
without which a! outward Afts of P.ety are of no Worth, isfufficiemto difcharge
us of
'
in?tS "Omiffon Trl *"7vv; i""=/
"
'"''r
we depend. As to what concerns other Men, Mr.
Thomafi.s fays
^oMtCTh^fZV^^^
'" '^^"'="1. n'- ^ivi' Society in
particuirr'
o worliippTna r
"
'"'"'''^ Worfhip paid. But it does not from thence follow, in my o;inion, that there is
no^^NeceTlItv
. n..i.^ h^ rh
"Wardly, and that this Neceffity is not fufficiently
known by tlie Li^ht of Reafon
; for how can wl
n .T n f h 1 ir
" '
"r ^'u'y T'"''"''^
" '^' """'
""'^'"^
"
'^^^^ "f^'^
^y
''" "'vva.d Afts of R Ii'on
Men lie
made in fuc.i a Manner,
that they do not thitik that they fhew a fufHciem Refped one to another, it they
do^not give fome
^
*
Proofs
1
16
The Duties
of
Man with regard to himjelf. Book II.
on this
BelieF, fo is it the only Foundation of that as to embrace them with peculiar Favour, and
fweet
Tranquillity and
Acquiefcence of Mind, to give them a Title to eternal Life, which good
which
Men
inwardly enjoy, and ' the very Fence Effefts do follow only that Inflitution and Way
and
Bulwark of all that"Probity which we are to of Service which he hath reveal'd in a lingular
exercife
towards our Neighbours
i
without which
Manner to the World: Yet a ferious Peifua-
no Man can ferioufly and heartily do a good Ac- fion concerning the divine Exiltencc and Provi-
tionhimfelf,
or give fufficient Caution and Secu-
dence, under whatever particular Apprehenfions,
rity of his honeft
Intentions to others
'.
And al- or particular Worlliip, hath however thus much
though
it appears from the Ordinances of the Chri- of Force and Efficacy, as to render Men more ob-
ftian
Religion, that Go d is not fo far pleas'd with lervant
*
of their Duty. To prove this Aflertion
every
Kind of Worfliip which Men pay him, we need only conlider, that there have been of
old.
Proofs of it by Word ofMouth, or fome fignificant Aaion, feeing tliey can no ways be afl'ured of the Sincerity ofeach otl'.crs
Intention.
But if the inward Worfhip of G o d is necellary for the Welfare of Society, as Mr. Thomafius fuppofes it, I can't
feehowfuchapurely fpirituai Religion can be of any great Ufe ; unlefs we wilHiippoie that all Men are equally capable of
knowinw their Duty to G o d, and as careful to pradife it, fo that none need to be inftrufted or exhorted by others. Meer
Talk is not fufKcient for the ignorant and common People, which are the greatell Part of Mankind; there mult be fonie-
thing that will affea their Sentcs, and rouze their Attention, without which they'll forget the Being of a G o D. So that
thoii"h I mi^ht enlarge upon the Obligation to outward Worfhip, of which we lliall fpeak more afterward, Chap.\\.
. z.
we mad "rant, 'tis abfolutely necelTary. And though Mr. Thonhijius declares that he was always of that Opinion, yet I fee
him ownmT, in his Fundament. Jur.
Nat. 0~ p. 1
5- "that outward WorQiip is necellary for the Regulation of Honcfty and
oood Order, which, as he explains thele Terms in the general Reformation of his Syftem, lay an Obligation, it not fo
linding, ye't at leaflastrue and indifpenfible, in my Judgment, as that he calls juft.
-'Ey
Hie, quibiis invifi
fratres,
dum vtta
manebat,
Pulfatufve
parens, cjr fraus
mnexa. Clienti
;
Aut qui divitiis foli
incubuere
repertis,
Kec partem pofucre fuis,
qui maxima turbaeft;
Quique ob
adultenum
aji, qutq; arma fecuti
"liiipia. nee leriti
dominorum
fallere dextras;
Inclufi
panam
exfpeClant-
. magna tefiatur
voce per umbras
:
Out" |>'wir
TTUTror, isTS iTSt(r/Ai,
Oii' a*""' ^K
^irzcrluj
ai<pvicivxi.^
Chap.
IV.
The Duties
of
Man with
regard
to
himfelf, i
jp
feform
their Mind by its Direction. For I doubt national Vices, might be
repreft
would
Men
BQt,
but that at leaft the external Ads even of but apply themfelves in
earneft
to the leading a
Life
'Tis incredible to me that Tantalus fliould
feaft
the Gods
And that they fhould eat the Flefli of Children.
'
I rather think, that the Inhabitants of that Countiy
Were accuftomed to Homicide, and to juftify
their
Crime
They attributed them to the Gods; for 1 can't
perfuade
n^v
That any God can be guilty of fuch a Wickednefs.
(fe^Y
Pindar had before faid much the fame Thing, reflefting upon the fame Fable,
To me it is abfurd to fay, that God's a Glutton,
I muft withhold AiTent.
'
They that thus abufe'
Thofe
happy Beings fliall furely be punifhed.
OiymJ>. I. 8
1.
u^i'',r[^'"j f"u
^^^^[^^C/er.bfefves
(BMoth.ChoirTor.^i.
p.
z69.) fhews a little higher that he was fenfible
of
thejallhood of thefe Fables fayn^p " Romannck Stories and Fables, fet out with divers F.c^ions, do more eafi v
'a?n
" Entertaniment .n Mens Mmds than true Hirtones. A flourifhing
Rhetorick which pleafes Men, fettinsoff a Th.n"
makesaThmg a moft mcred.ble to be beheved. Biu Length of T.me certainly difcovers the Truth/ Men ftould
'
always fpeak well of the Gods, for they run the leaft Hazard."
"lowa
'H ^xti/jjiclx 3-o,
Xasfi5 fft ccTti^ ccTTxncc Tiu-
Xi
TO. flJl,Xiy^X ^IHTOiC,,
Mx^rvfit, o-cCpaiTXTct,
Thefe Reflexions may eafily come mto the Minds of the moft fimple Perfons, that
will but make m^ of their namr.i
Senfe. For 'tis probable that the Poets did not hatch them in their o/n Brains, but here as in oThe, T! ino, ; t J 1
D dates of Nature. We have always
obfeived thefe Things to happen amon.
Chriftinns IJoThm^^^
'^
TWngs happened among the HeatheL.
Among the Papiils, In fome ^Lntries efpecial
ly
"
'e Word f om a PdeV w U
ra.fe the Mob aga.nft an Heretick as they call them
;
but yet there are many honeft Men, I'v.o
ablXfLcii \ dTaboSVud
refs and do not believe that any Man may be perfecuted for his Religion
;
though the Clergy
incukate that Doftine w1 h
all the Earneftnefs poflible to fatisfy their Ambition. Pride, and Av-arice, and t"o engage
tfjpeop el t eh-Intteft
wl a
fuffer hemfelves to be led blindly by their Harangues, efpecially when they fuggeft Things
a-^ree'lbirtrt eii bru ^ and
n-regular Inclinations. We may alfo fay the fame of diverfe Opinions, which
a?e^-eceived%y"the
i^veol Stie of Chri
ftians. TheDodrinesof
TranUibftantiation,
Impanation, and the Ubiquity of Chrift's Body,
are fuch oroAcomiSr
tions, that none can behve them and though fome Men make a Profeflion of that Faith, theyno
more beHeve S,en tJan
fuch as den
V
them (See what i have faid in my ;^r.> to Tcm. III. of Archbifhop
lVii<I>s
sZon^
) But ^e
'
-i^-e
other fpeculative Opmions and moral Ma.vims, either entirely or very unfound,
which the
Preachers deliver
from he Pul
pit without convincing many Men who by the Strength of ineer natural Reafon perceive the Ablk-dity of V ^0^1^:
and Maxims or e.xplain them in a clear different Senfe from the Preachers, as appears when tLy are t^ftLn'd nbou' t em
mfamili.ar Terms. The Pagan Fables were inlikeManner abfurd, and why f.l!ty we not nho'beleTe
irlnram^^^^
he People looked upon them as falie, and kept to the Fundamentals of natuiil Religion, thouah with fome Mk'uiIs of Er"
vor and mperfeftion. Did not Men then make Ufe of their Reafon > Or were thofS Truths
fo'obfcureX
th 'y couW not
be found out by long and profound
Meditation? Wc may with much greater Reafon fuppofe, that they whofe Educit^on
has been above the common Sort, n going to the Schools of the PhilSfophers, and cait^ull,'
reading
herr Books
flould
be happily treed from the Superllit.ons and srofs Notions of Heatlienifm. With what Liberty did the PI ilofonhp,- r 1
theaefigiono the Vulgar feveral Ways f'^ We may believe (fays Mr. TonnnelU, in
hisVifto^JSS
S^^^^^^
.tV'-l
^^^^^"^"S'hePagansRelig!onwasafortof Praftice, whofe Speculation
was a
T^Jn^YndSerem
Do
"
as others do, and you may believe as you pleafe." Thisisa wild N-tion, but tL People,
who faw lol the Weirneffrf
It, werecomemedwuhit,
and the Philofophers fubmitted readily to it, becaufe they so. by it lu Bal(^\t. \
jy,.erfeMed,tat:ons,p^67)
owns. That there were, among the Heathen, Men of fngenuit^nd
.fofS nfJ
'"
1
"'
Without Ph.lofophy had fometimes
tolerable Notions of the^Deity. It is true, that,
acco^din^tolim"
they
were' not 7,^
be regarded, becaufe
when they had heard the Reafonin^s of the Philofophers about the Nature of he' Gods a fnnn Z
they were gone, they did as others did. But it is no wayl neceffary in the^eftion we are deba ina
Jo find fuch Men .
St'thnt f^'" fJ-f
'
l' ""^rT ^r
PP^'^
^'^^ ^'""'" ^""^
-
^''^"P
'=ft^''"n^'J
by pubHck
luthon-ty
-^sruf' fie em that feveral did acknowledge
the more grofs Abufes of Superftition and Idolatry. ^nd acquireTuch NoJ^L
Religion as were able to produce fuch a Degree of Honefty, as they could not have had, if th
y
had b L Athdft rh^
Defcriptionsof the Pagan
Corruptions,
made by Mr. Ba^le {mdContinuation
of dnerfe Medlf>2
pTo^ Tc\aJ1.
prove the contrary
Thefe f^on of
Defcriptions ought not to be taken in a Metaphyfical Genera
k-.'iffuf^dent'h
J Z
in lift dai-it for'fe^ "^f-
"""''
''^^^
''"^
fS''?
""
''^^
S'^"^^^
^"'"'^"-
^^-'-'' ^^^ ^^- f ^vhom I am no
y fpelkl
"
dued the
Sde; Foice of^^^^ 1?^
Ufe of their knowledge of the Nature of G o d, have by that Motive fub-
" prevalent
thelpaffions we e ?n
"'.
'^T ^T
'^'^-
u'
!"'^
P'"^'^^'' '^''
w''^" ''^'^ ^^0"^^ was fo
"Help."
So
we mav as we I r
"'^"^'''
^hat they might have been reduced by Reafon. without that
Princip'les.
bec-nufeXI-eaieLawfrrnT''
^0",.Chnftians no Man is virtuous purely through his religious
have Place
.^He 'hen fmM
Difgrace attending every Crime
;
nay, in a Word! all the othe? Motives which
Thefe
wife
Lawaive,, .f A r' ^'^^^V'^^''^ 'f^^'^"^
of the Laws may fuggeft a Reflexion not to be flighted,
pointed
that
th^S
t^uT'^'
^'""'1'
''^T-'i
'"^
^^^'^"^ ^>' ^" '">
^
'''^' ^'
thefametime that the^y apl
moft of
thofe
L-imewl^"whriPP'''-u"
'^/"
'"'"' Countries, forbad, under the moft rigorous Punifhments.
looked upon
the
Fables 7, .K^^^
attributed to their Deities. And is it not natural to infer from thence, that the;
ReafoningofiVa"
ifAi?^
'"""^"^ the Poets, wluch the People pleafed themfelves with? At leaft, this is the
me
oae bije
1
cm
:
imagine that the Qods commit Adultery, or Uiat there are among them Diyifions,
6r
I (5o
The
Duties
of
Man
'with regard to himjelj. B o o k
II.
Life
fuitable
to their
Profeffion ^
So are the Opinions comrary to thefe Truths mod
IV
As this Perfuafion,
and whatever elfe we carefully to be barr'd off and excluded And here
are able to learn concerning
the Worfliip of Go d, we would not only be unaerftood of Atheiftical
c ther
from Reafon or from
Revelation, is firft of and Epicurean
Prmciples, but of thole numerous
all to be implanted
in a rightly
cultivated
Mind. Notions
which appear to be deftructive of true
"
or .tle.ft that they think thefe TWnas iuftai^honeft
; and on the other fi^e I fee, th.it the Lawgivers have ovdained the
..
^^^;^|^^Hf
vwotUdnotl^v^hadt^eyt^^^
^^i^X:^:S:^lSrZ:!.
tho tne>
""c=!?^^,'^^^/, .,
.u.Reifonms which Mr. 47/^ attributes to an >^f^f/y?, can come nuo any Man s Mind but
forfuUirSo
o?he"%lfr^
and abi^rufe
metaphyfical Meditations. 'Tis not conceivable that any
Sf^erl JvS^^^^^^
or not, Ihould be' inclined to
praftife the Ma.xims of Virtue, by no other Motive, but us
"'l? fsl"^ e" d^il;''' ih^afl" hat i7^id about thefe Notions of Honefty, is in the Mouth of moft Men, efpecially Atheifts
it IS veiy eviaeni,
'_
,,.
..j ,-p npclamation of which the Mind is not perfuaded. Nor are we more fure, that
^.AEfuurean.
-"^^^
J1^,"
^S
" r/, thatV.ruL -worthy to k- lo.ed for ,tfelf,. anduit.
-
all thofe who f^ay, ThatmnJ-ii^
namrai tol^rtue ana l^J jy
^^
^^^^^.^^^ ^^^^^^^^^ ^
^^^ ^,^^
^^^.^^
^^ ^ ^
own Beward (^ontinua on
^.
761.
'^^^^^f^/'^th" , us Reafon to believe. It is true, that he maintains. That nnlefs
as the Example
-^l^^S^.j^^V^'; !,''>';
"^,;,''j^;'''
^e fl ould not fuffer ourfelves to hearken to any Motions ofAvarice, In-
wecouldef^capetheEyesofGoD
as^ellasMen
wemo
pofitively elfewhere, that God is the Au-
tnoi or tnc 1..1W oi iM.uuic v^i-i^.
. ^
;n, t
p r, i i iWii Iris, R E C T r a T I O N I S, N A T U B. A CO N G R U E N-
'i-''f\'-'^i'fi^'''^^y'^^'l^l~^^^^
see tre w'-'e P--'fl"g q-<i ^'bo've. Ch. iii.
. .0. Note
,.
Wh t
L'rf:v>In\hVfmrBoorof'office:h;m
whence this PalTage is t1.ke\ which Mr. ^..^uotes, do we noc
i e
"
Thev that hold, that the Rights
eftablifced
among Citizens are to be regarded, yet wi
U
not allow them to
'
Strangers and ihefelaft deftrov the
-eneral Society of all Mankind, with which Bounty
Liberality, Hiunanity.
nd"ufticei M. Now to- attem^pt this is an/lmpiety again,^ the Gods ^.'--^^^ves
f.nce it is the Deftrua.oa
Mytholog. 1. 1. c. 18.
f
Settee. Hypolit. ver.
195.
Deurti ejfe Amorertt, turpis & vitiofavens Love was firft deify'd by Luft .md Vice
:
Tinxit libido; quoque liberior foret When Men to gain a Patron to their Sin,
litulumfurori Numitiisfalfo addidit. And free purfuit of Pleafure, fix'd the Stamp
Of Heaven on Hell, a Fury made a God.
B Betizo. Hid. Nov. Orb. 1. 2. c. 13.
,
r ,1,
4 Euripidet, in another Place, gives a Defcription of all fuch Perfons as pretend to Divination, m thefe Words:
2
. T
3
(JMVTtt iT dvHS ;
What's an Aftrologer ? I thus reply,
*Oi LKiy' ctAtiSir, tnT^ci 3 l<ij'J' ^e>H A Man that fpeaks few Truths, but many a Lye,
Tt/;:(fflV, oiay f*M TOxr>
^oi^TM. Which, when found out, he takes his Heels to fly.
Spoken by Iphigen it; Aulid. v. 956.
Edit. Cant.
5
See what Mr. Bayk fpeaks about this Matter in his Meditations upon a Comet.
^
^
i
plications
Chap.
IV. The Duties
of
Man zvith regard to
himfelf,
\
63
plications to contain much more Holinefs, which
arc
pciibrm'd, either upon the engaging inanun-
iull
War, or upon any Succels obtain'd in it.
Thole
Pcifons too mult needs lie under a great
Milhikc, wlio fanfy the Breach of Ibme Precept
oF
Natural Law to be a part of Divine Worfliip.
As they who are for treating in a holtile Manner,
ail fuch as differ from them in Perfualion
>
who
ailerc that Religion is to be propaged by the
Sword ;
that no Faith is to be kept with Menof
a contrary Profellion, no political Friendlliip fas
they call it) and no Offices of Humanity tobeex-
crcis'd towards them, but that they are to be a-
voidcd even in common Converfation, as un-
holy and unclean
;
that Violence, Wickcdnefs,
Trcafon, Perlidioufaefs, Sedition and Rebellion,
are not only lawful, but commendable, if under-
taken on a religious Account
''.
To conclude,
the following Opinions arc not of lefs fatal Effeft,
than thofe which we have already mention'd :
That it imports nothing to folid Felicity, whether
a Man apply himfelf to a virtuous or to a vicious
Lilre, and that good Men are
*
entitled to no
better State or Condition than the Wicked.
That the highell; Plcafure a Man can expe6b or
obtain, is the prefent Gratification of his Senfesj
and tiiat tlicSoul perifhes with the Body. Laft-
iy, that all Law, even that which we call natural.,'
is a meer human Device, not referable to Go d
as the Author of it, nor deriving from him its Force
and Sanftity. Thefe therefore, and fuch like No-
tions, are entirely to be rooted up out of human
Minds, m as much as they deltroy our Duty
to Almighty God, and prevent or intercept all
Endeavours of conforming our Life and Manners
to the Guidance of good Reafon.
V. When this principal Care is over, the main
Concern behind is for a Man accurately to exa-
mine his own Nature, and to ftudy to know him-
felf.
k-i Enquiry which Antiquity fo much va-
lued as the Forerunner of true Wifdom, that
Tva^ (TtA'Ahv was thought an Infcription worthy to
be let in Letters of Gold, and confecrated in the
Delphian Temple.
-
On which fully hath given
us th.hCommcm.j'The Precept 0/ Apollo, fa)'she,/
which he enjoins us to knoiv our
fches, doth not mean^
that wejljould be careful in knoivin^ our Ltinbs., our
Stature, or our figure
;
for
our
Bodies ir-deed are not
om[elves. But when the Oracle
fays. Knowyour Self\
it
fays
in Effebt, Knowyour ownMindand Soul. For
the Body is no more than the SouVs
Feffcl
or Receptacle.
And no ASiion is properly done by your
fe
If,
but what
proceeds from your better and nobler Part
".
Now
from this Knowledge
of himfelf rightly purfu'd, a
Man is brought to underftand his Condition, and
the Office he is to bear in the World : WhiHUie
apprehends, that he did not exift of himfelf, but
ow'd his Original and Being to a much Sublimer
Principle} that he is endow'd with far more noble
Faculties, than he fees enjoy'd by the Bcaits about
him} lalUy, that he was not born by himfelf,
nor purely for his own Sei-vice, but that he is a parr
of human Kind, and is oblig'd to behave himfelf
fociably towards other Men. And from thefe
Fountains may eafily be drawn the compleat
Knowledge of human Duty. Vid. MarcAntonin^
I. X.
f
6. '
Perf. Sat. hi.
71
.
-^em te Deus
effe
Juf/it, y humma qua parte locatus es in re
Difce.
Study thy felf: Learn in what Rank and State,
The wife Creator hath ordain'd thy Fate.
It belongs likcwife to our underftanding our felves"*,
to know our own Power, and how far it ex-"
tends, either in exerting our Aftions, or inform-
ing our Defigns
*".
And farther, what is the
true. Effet and C^ifequence of every Pra6tice
j
and what Refpe6l and Ufe the Things without us
have to our felves and to our Happinels.
VI. From this Knowledge it follows, that a Man
muft apprehend his Subjeftion to Almighty God,
and the Obligation which lies upon him, according
to theMeafure of the Gifts he hath receiv'd,both
to celebrate the Divine Majcfty, and to fliew
himfelf a fociable Creature in his Tran(Iii:ions
with his Fellows. And in as much as God hath
beltow'd on bim the Light of Underilanding, he
' Add. Cafnubon ad Per/. Sat. 3. v. 67. and Plato in \as
firft
Alcibiades
p. 44.8. Edit. Francofurt. FUiii.
^
SecSoaiXt^'s
EyfiUcath?!
of
that noble Sentence in Zenophon Apomnem. /.
4. Add. Bacon
E/f. 36.
7
Sec Mr. Bav/c's Phi/ofophick Commentary upon thefe Words, Compel them to come in. Sec. Part i . Cbap.
4, &c.
''
C;i(7-ci de Natuni Deorum, 1. 3. c. 35. Ut enim ncc Doinus, nee Refpublica ratione quadam, i^ Jifciplina dejignata videatur,
fi
in e.i nee rcle faSlis prtemia exjlcnt ulla, nee fitpplicia peccatis
; jic miindi divina in homines moderatio, profeBo nulla efi, Ji
in
difcrimen nullum
eft
bonorum 3' malorum. i. e. Heaven is certainly not at all concern'd in the Government
of
Men,
if
it doth not
make a Diftindim between the Good and the Wicked.
^V.
^
TullyWforAstiTS, Nimirum banc habet vim praceptum Apollinis, qu'o monet, ut
fe quifque no/cat; non enivi, credo,
id pracipit, ut membra
noftra, autftaturam, figuramve nofcamus ; neque nos corporafumus^Cum igiturNofce te,dicit,hoc dicit,
nijce animum tuum. Nam corpus quidem quafi vas
eft,
aut aliquocl animi receptaculum. M animo tuo quicquid agitur, id agitur a t^i
3
Perfius's preceding Words are elegant and pertinent :
Difcite vos, miferi, ij caufas cognofcite rerum,
^idfumus, l^ quidnamvilluri gignimur, ordo
^is datus, aut metis, quam mollis flexus isf u?idee
;
^is modus argent
0,
quid
fas optare, quid a/per
Utile nummus habet, patriae, charifque propinquis
^antum elargiri deceat, quern, (ffc.
Learn, wretched Men, and know the Caufe of Things
What 'tis we are, and why we have our Beings
;
What is the Order, and what Nature's Courfe,
What we may wifh for, and wliat Money's Force,
What Profit it doth yield ; what to beftow
Upon our Country, and our Kindred too.
Study, is'c.
^
* " This
great Precept is often alledg'd in Plato, Mirtdthy ozott
Buftnefs,
a7idknozo thy Self
Each-of thefe Sentences con-
"
<f'
n^ '"
S^"^''^'
"''
whole Duty, and feems to include the other. He that will do his own Bufinefs, mult learn this Leffon.
"
-i
' "^now himfelf, and he that knows himfelf, will not undertake any Bufinefs as his own, that he is not acquainted
"with
;
for if he loves and takes care of himfelf, he'll refufe needl*fs Employments and unprofitable
Thoughts and Propofals."
Montagne'i
Effays, /. i. r.
3.
Y X
ought
I
6a.
The Duties
of
Man with regard to himjelf. Book II.
ought
certainly to conclude, that he is not to do
every thing at Random, and
'
without End or
Defign, but that whatever he undertakes, he
iliould firll weigh the IVlatter in hand, and regu-
late his JVIethod of proceeding about it
*.
And
confequcntly, that he propofe an End
^
agree-
able to his Nature, and rightly moderate and dircfl;
both his own Aftions, and all other due Means
towards the Attainment of that End. And this
in fuch a Manner, that he neither proceed in the
Application of the Means, before the End is fix'd
and determin'd
> nor fettle fuch an End as he muft
afterwards want Means to arrive at. Another In-
ference clofely ally'd to this is, that fince Truth
and Right are always uniform and without Alte-
ration, lb he ought always to form the fame
Judg-
ments of the fame Things, and when he hath
once judg'd truly, to be always conllant in his
Mind and Refolution. Farther, that his Will and
his Appetite do not get the Start of
-
Good
Judgment, but follow and obey it; never making
Refinance to its Decrees
^.
For he who obfei-ves
thisCourfe of Proceeding, will be fure to aft with
Prudence, with Conftancy, and with Moderation.
He will malce it his chiefAim and Rule, asLucan
defcribes Cato., ii. 381.
Servare modum^ finemq-y tenere,
Naturamq;
fequi^ patri<eq\ impendere vitam
:
Neefibi, fed
toti genitum
fe
credere mtindo.
To keep a Mean, to eye the chief Defign
j
To follow Nature, as a Guide Divine,
To pay his Country's Ranfom with his Blood,
And private Pleafure quit for pubUck Good
:
To raife his Soul to univerfal Cares,
And in his Pains give all the World their Shares.
He that a6bs otherwife, inftead of keeping a de-
cent Pace in the Journey of Life, feems to rowl
and tumble through the World
'
: His Proceed-
ings arc perpetual Contradiftions ; and 'tis impof-
fible for him to arrive at any comfortable Conditi-
on : Since, ' as Sophocles obferves, Antig. ver. i
548.
True Wifdom is the Spring
of
Happinefs.
VII. If a Man thus rightly apprehend and com
lider his own Strength and Pov/cr, he willdifco-
ver that it is of a fnlte Nature, having certain
Limits, beyond which it can never extend itfelf
j
and therefore, that there are many Things in the
World which we cannot manage or compufs, as
many that he cannot hinder or refill:. Other
Matters there arc which do not abfolutely exceed
human Power, but which may be intercepted and
prevented by the Oppofition of other Cauics. And
a third Kind of Things we cannot compafs by our
bare Strength, nor affilled by Dexterity and Ad-
drefs, AppHcable to thefe Refleftions is the fa-
mous old Diitinftion of the Stoicks, dividing
Things into w e?' )'/:<7y, and to' in. Ip' )!/*Ti', thofe in
our Power, and thofe ivithoiit or beyond it. What
feems to be moil under our Command, is our
own Will, aird the Power of that Faculty in exert-
ing Aftions proper to our Species of Being. For
although the Will hath fome crofs and ftubborn
Principles adherent to it, which bend and ply it
continually from its due jEqnUibrium, yet hath a
Man nothing in his whole Nature more nearly and
clofely tied to him, nothing which is lei's capable
of being hindred by external Powers, and there-
fore nothing, the Motions of which do more pro-
perly belong to his Perfon, and may accordingly
be imputed. Hence it follows, that eveiy Man
ought to make it his main Care and Concern,
rightly to employ his Force and Abilities, in con-
formity to the Rules of Rcafon: At leall to fettle
a coniiant Refolution of difcharging, as far as in
him lies, every thing which feems agreeable to his
Duty, and to the Defign of his Being. For this is
the Tell by which we are to rate the Worth of e-
Chap. 40.
^. VI. ^Seneca has a fine Paflage relating to this Subjeft,
Epift.-]\.
Ideo feccamus, quia defartibm vita omnes delibemmus,
de tola, nemo deliberat. Scire debet, quid petat, tile, qui fagittam vult mittere,l^ tunc dirigere, i^ moderari jnanu telum. Errant
confiUn noftra, quia non habcnt quo dirigantur. Ignoranti quern portum petat, nullus fuus ventus ejl. Necejfe
eft
multum in vita
noftra cafus
pifflt,
quia vivimus cafu. i. e.
"
The Original of our Errors is, that no Man contrives ferioufly to draw up a Scheme
"
of his whole Life, but contents himfelf to deliberate occafionally upon fome particular Aftions. The Gunner fhould know
"
his Mark, before he take his Aim to fhoot. Our Counfels are difappointed, becaufe we keep not the End in our Minds. The
"
Wind can never blow well for him, who don't know the Port he is failing to. Fortune muft do much among us, who leave
"
fo much to Chance in our Lives." Ses Ciceroh Paradoxes, Chap.
5. with Graviush Notes, and M. Antoninus with Gataier's,
Lib. 2. . 16. and /. 11. . 21. ^Kzlio Platode Repub. l.-j. p. 695. Ed. fFeeh. and Montagne'i EJ/iiys, Lib. 2. Chap. i.
at the End.
*
All the World knows that famous Principle of Morality laid dowm by the Stoicks, who fay, That tue
muft
live agreeabk
to Nature. See Seneca, M. Antoninus, Epiitetus, &c. but chiefly M. Antonin. Lib.
5. Chap. 16.
3 C/i-fra has very well obferv'd, Efticiendum autem
eft,
ut Appetitus rationi_ obediant, eamque neque pracurrant, nee propter
figritiam, aut ignaviamdeferant ; fintque tranquilH, atque omni perturhntione a'nimi careant. Ex quo elucebit omnis conftantia,
omnijque moderatio. i. e.
"
We muft bring all our Afteftions into Subjeftion to our Reafon, and not fufFer them either to out-
"
run it, or thro' Sluggifhnefs to defert it. They muft alfo be calm, and not diihirb our IVIinds. And then we fhall be emi-
'
nent for Conftancy and Moderation."
Off.
I. i.e. 29.
4 i.e. Never to enquire into them, but after mature Deliberation, and never to aft .againft our own Confcience.
5 Thefe Words are /^srficff's,
Epift. i. Lib. 1. z-.
99.
Et vitre difconvenit ordine toto.
^
Lipfius, in his Politicks, tranflates the Words thus, Lib. 1 . Chap. 7. Longe Prudentia ftelicitatis primas tenet, i. e.
"
That
"
Prudence that makes a Man happy, is certainly the chiefeft by much." But Wifdom is incomparably much more advantagious
and valuable than Happinefs or Profperity : So that this Sentence makes nothing to our Author's Purpofe, who is proving.
That Wifdom is the Means to arrive at Happinefs. Neverthelefs I thought fit to obferve, that this PafTigc of Sophocles is
explained, as I have underftood it, in the Greek Comment of Trielinius ; for others follow an Explication which to me feems
not true, and which they embraced, without being aware that
j^Svtv
has fometimes a comp.trative Signification.
vciy
C H A
P. I V. The Duties
of
Man with regard
to
himfelf,
1 6
5
very
Pcrfon, and to meafurc his intrinfical Good-
nefs and Excellency.
'
Arrian. Epi^iet. l.'i. c. i.
mat therefore^ on the luhole Matter^ are ive to do ?
To Jniprovc^ and to put to the hejl
ufe
thofe 'things
li'hkh are in our Poivcr^ and to deal with other
things as their Natures
-
require.
VIII. As to the other Matters which lie with-
out us, we are fo far to employ ourfelves about
is any room for human
Caution and Forefight j
fo
when we have done all that lies in our Power,
we cannot enfure an Event which doth not de-
pend on our Direction, and of which
'
we have
no certain Knowledge till it aftually happen. As
Iphicrates us'd to fay, 'twas unworthy of a General
to fay, I did not think it; fo 'tis below a wife Man
to make the like forry Refletion. Ic was a good
tlicm,as they do not furpafs our Strength, as they Wifh of the Poet, Ov.
/>.ii.8f
tend to a lawful End, and are worth the Labour
which we fiicnd in thePurfuit. For Things above
Careat fuccejjihus opto
\\%^ a wife Man will nor lofe his Hopes and his
^.ifquis ab eventu faSla notanda putat.
Ut locuples
moriaris^ egenti vivere fato.
Living,
to fuffcr a lov^ ftar\'ing Fate,
In
hopes
of dying in a wealthy Stare.
On
the
other fide, 'tis a very good part of the
Charafter
^srlv-chStatius
gives ofa wifeMan,iy>'/.ii.2.
'Hor.Sat.i.i-gZ'Oi?.^/^'*'?/'/^"
qinerendi, cumq; habeas plus,
Pauperiem metuas minus ; l^ finire laborem
Jncipias, farto quod avebas.^-
Non tibi fepojitas infelix
firangulat area
DivitiaSj avidiq; animum
difpcndia torquent
Foenoris : expofiti cenfus ^ doSlafrueadi
Temperies.
In ftifling Cherts your Wealth is not confin'd.
Nor, lent on greedy Ufe, torments your Mind
j
But nobly fpreads, on decent Ends employ'd.
By Moderation, and with ./irt enjofd
^.
We are farther to confider, that Nature is not
wanting in a plentiful Provifion for the Necefiities
of her Sons ". That the Riches which we hoard
up for future ufe, ai-e expos'd in the mean time to
a thoufand Dangers, and fometimes give us more
trouble in keeping them, than they gave us La-
bour in getting them
''.
Laftly, that whatever
we leave heap'd together, at our Death, muft fall
to an Heir, who may not only be unworthy of
the Gift, but may defpife and deride the Giver
'.
As therefore an honeft Occafion of acquiring
Riches is not to be neglefted, fo the Mind ought
to be put into fo even a Temper, as not to lofe it
felf^
if it fhould happen to lofe them. Horace hath
taught us the beft way of dealing with Fortune
:
Od. iii. 2p.
Laudo manentem
j fi
ccleres quatit
PennaSf refigno qute dedit.,
s?
7T!eA
Virtute me involvo
;
prohamq'y
Pauperiem fine dote quro.
Which a great and noble Wit hath thus moft hap-
pily paraphras'd
:
Let her love whom fhe pleafe,I fcorntowooherj
Whilft fhe ftays with me, I'll be civil to her
>
Stop
then your fwelling Riches as they grow ;
And
let bafe Want with its Retinue, ^ho^v,
At greater Diftance, a lefs dreadful Foe.
Ceafe your vain Care, let all your Labours ceafe.
When your large Wifh is crown'd with full Succefs.
Fumen
Pane?yr. Thofe who mahmtReafon the Bounds
of
their Defires, are never fatisfied with any Profufenefs of
Fortune
i
^nd thus
Hatpinefs everfides by them, whiljl beingfull of
Hopes, and void of
real Enjoyments, they lofe the prefent in gaping after
thefuture.
Add.
Charrondela Sageje, I. i. c.2i.
"
Hippodamus de Felicitate : The Pofejfton of
good Things contributes
nothing to Happinefs,
without the Ufe.
Add. Theocrit. Idyll. 16.
Horat. Epod. 1.32.
_
Handparaver
^od out, avarus ut Chremes, terra prcmam,
Difcinllus aut perdam ut nepos.
Idem Carm. IV.
9.
Non pofjidentem multa voeaverts
ReBe beaturn : reSlius occupat
Non beati, qui deortim
Muneribus fapienter uti
^Callet .
Idem L. I . Epift. z.
Semper avarus eget ; certurn voto pete
finem
:
^odfatis
eft
cui conlingit nilaniflius optat.
Idem L. 2. Epift. 2.
TJtar, is' ex modico, quantum res pofcit, acervo
Tollam : nee metuam quid de me judicet hares,
^od non plura datis invenerit. ii^_-B____
Add. Qell. I. 10. c. 17.
I would not labour to abound
In what I might with no lefs Care,
Like a bafe Mifer or a Spendthrift Heir,
Squander above, or bui-y under Ground.
The wide Pofleffor vainly claims
Amongft his Titles and his Names,
The Term of Happy, which fhould blefs
The Man that wifely lives on lefs.
The Mifer's ever poor : ThyWilh fhould fall
On fome fix'd End : who has enough, hasall-
ril ufe my little Store, and freely take
Without Concern, what fan- Occafions lack.
And let my greedy difappointed Heir
Rail when I'm gone, and curfe my want of Care.
'
Arrian. Epidet. 1. 3. c. 24. No Man is properly an Orphan ; we have a common Father, whis cunftantly biifttd in fra-
viding for
us. ^
Horat. Carm. III. 16. CrefcentemJequitur cura pecuniam.
Care in proportion fwells with every Bag.
'
Bion. Idyll. 5. ^
"ifij^v /'
ayjt TIC- Tttv KifJict xg,t Tm-nTtxyai
How vainly UTetched do we fpend our Yeari
In ufelefs Labour and in idle Cares ?
The Chafe of Wealth unwearied
we purfue.
And lofe the prefent, for a
future
Vievv
But not one thinks how foon his
mortal Lme
Muft fadly break, and end his wild Defiga.
But
I
<^o
2^^^^ Duties
of
Man with regard to
limfelf.
Boo k II.
But if ihe
offers once to move her Wings, other Train, than Trouble, Danger, Damage, and
I'll fling
her back all her vain Gew-gaw Things, Difgrace. As therefore 'tis the next degree to Mad-
And
arm'd
with Virtue, will more glorious ftand, nefs, to invite Uneafinefs and Torment without
Than if the Bitch ftill bow'd at my Command. ufe or occafien
:
So it is veiy rational to allow
I'll marry
Honefty,
though ne'er fo poor, ourfelves a moderate Tafte of lawful and inno-
Rather than follow fuch a dull blind Whore ^ cent Pleafures, without fuffering them to over-
whelm and to drown us. But this is to be fix'd
As to Expences, wc aretoufc fuch a Modcrati- as an inviolable Rule, That no Pleafure muft be
on about them,
asmoft willingly to undertake fuch purchas'd at fo dear a rate, as the Negleft or the
as our Duty requires of us, and yet not fquan- Tranfgreflion of our Duty,
der our Fortune at a venture, without Neceffity XII. The lall Care which hes on us intheim-
and without Reafon ^ For 'tis equally foohfh and proving and well-ordering of our Mind, is with
abfurd, not to apply our Riches to the Ends for our utmoft Diligence to maintain its Sovereignty
which they are given us, and vainly to throwthem over its own Motions and Affeftions
;
the greatefl
away on inferior Ufes and Defigns. The former part of which do not only impair the Health of the
Vice including
numerous Breaches of our Dutyj Body and the Vigor of the Soul, but call fuch a
the latter leading the diret way to Debt, Pover- Cloud on the Judgment and Underftanding, as to
ty. Rapine,
Deceit, and a thoufand other Enor- wrefb them violently from the ways of Rcalbn and
mitics and Mifchiefs
^. of Duty. So that a Coldnefs
of
the
Paffions is, as
XI. In Reference to Pleafure and Pain, 'tis not it were, the natural Principle of Pmdence and Pro-
only the Pcrmillion, but the Advice of Reafon, bity amoegft Men '. It may not be amifs to
that we avoid as much as pofTible all unneceflary run with fome light Remarks through the Parti-
Trouble and Difquiet; and not only endeavour culars.
Joy
\s in itfelf a Paffion moft agreeable
to keep ourfelves free from Gricf and Difgufb, but to Nature. But ftrift Care is to be taken, that it
likewife to entertain our Senfes with fuch Objefts do not break out on improper Occafions, as upon
as are
agreeable and delightful to them ^ the Misfortunes of other Men : And likewife.
But to a fingular and cxquifice Gratification of that it do not drive us on any thing that is vain
Senfe, the Mind is by no means to be accuftom- and trifling, or bale and indecent. Sorroiv
-
is
ed} in as much as this Kind of Epicurifm either a Canker that waftes alike the Body and the Mind,
weakens and enervates a Man, equally opprefling This therefore is, as much as poflible, to be re-
the Vi"-or of Body and of Soul, and rcndring mov'd and expell'd
j
unlefs fo far as theOflices of
them both unfit for any ferious Bufinefsj orfteals Humanity oblige us to exprefs our Concern and
our Time from better and more neceflaiy Employ- Pity at the Misfortunes, or at the Deaths of
ments j
or waftes and confumes our Wealth, and others
;
and as it is rcquifite to the great Biifinefs
our Conveniences of Life
i
or often, being join'd ofRepentance. Zowis a friendly Motion to JVIan-
with fome criminal Praftice, draws after it no kinds yet this is fo wifely to be manag'd and mo-
like an indulgent Mother, has enjoined us no Aftions for our Neceffities, but what it is a Pleafure to perform ; being 'invit-
"
ed to them, not by our Reafon only, but by our Appetite, fo that it is Injuftice to corrupt thofe Rules. When I fee Cefar
"
and y^/^.^^'jW?'' in the midll of their great Employments, enjoying human and bodily Pleafures fo fully, I can't think it was
"
for the Refrefhment of the Mind, but to ftrain it, by introducing thofe violent Aftions and laborious Projefts, through great-
"
nefs of Courage, into an ordinary Courfe of Life. Ifthey had been thought wife Men, what had been their ordinary Cal-
"
ling ? This laft. The Extraordmary That the Soul aififts and favours the Body, and does not abfolutely refufe to
'
fhare in its Pleafures, but feems to be delighted with them, it is to prefervea Moderation, as the wifer Part, for fear through
"
Indifcretion Men fhould turn them into Trouble ; for Intemperance is the Bane ot Pleafures, and Temperance is fo far from
"
being any Abridgment of them, that 'tis a fweetning of them. I direft my Soul to look upon both Grief and Pleafure with
*'
a View equally regular and firm, but on the one pleafantly, and on the other fowrely ; and, according to its Ability, to be
"
as careful to Ihorten the one, as enlarge the other. The clear fight of good Things is always attended with a dillinft Know-
"
ledge of Evil, and Grief hath fomething unavoidable at the beginning, as Pleafure hath fomething unavoidable in the end,
"
which may cut off all Excefs. Plato (De Lcgib. Lib. \ . Tom. 2.) couples them together, and will have it the Duty of Cou-
"
rage to encounter Grief and the charming Delights of Pleafure, with equal Bravery. Thefe are the two Fountains at which
'
whoever draws, where, when, and how he ought, whether he be Citizen, Man, or Beaft, he is happy. The firft he muft
"
take as a Medicine, merely for Ncceffity, and fparingly ; the other to fatisfy his Thirft, but not to Drunkcnncfs. Grief,
'
Pleafure, Love, and Hatred, are the 'firft Things an Infant feels. If Reafon happens to guide them, they follow it, and
"
that is Virtue." EJfays, Lii.'i. Chap. u\t. There are many other curious Thoughts both before and after. Sec Porphyr.
JeVit. Pythag. . 39.
and what I have faid in my Treatife oiGames, Lib. i. Chap. 4. .
8.
4. XII.
Quinftilian Declam. 296. Magni affeaus Jura non/peilant, i. e.
"
Great Paifions are above Laws." See Lib. i.
Chap. 4. . 7.
"
I neither love nor value this Paffion (faith Montagne) although the World fct a peculiar Efteem upon it, and gives it a
"
particular Honour. They call it Wifdom, Virtue, and Confcience. Foolilh and vain Commendations ! The //j/w/w have
"
given it a much properer Name, calling it, a corroding Humour. It is a Quality always noxious, always foolilh, and the
"
Stoicks maintain it to be bafe and cowardly, as their wife Men have evsr efteemed it." EJfays,
Lib. I. Cbap. 2. See alfo
Qbarronof Wifdom, Lib, i. Chap, 33. and Lib.
3. Chap.
29.
derated
ChA P. I
V.
The Duties
of
Man with
regard
to
himfelf.
1
7 r
derated by Reufon, that it does not throw itfclf
away on an ill Objeft
j
that it does not procure
bale and unworthy Fuel to its Flame
> that it does
not hinder the Exercife of other Duties, nor de-
generate into Difquict and Difcaie: That if it fet-
tle on a Thing fubjeft to Lois, or to Corruption,
Dum
abeft quodavemus^
id
exfuperare "Jidetur
Caterai
poft
aliud, cum
contign
Ulud^
avemus-y
Etfitis csqua tenet
vitaifempQrhianteh^^c.
l.iii. t
opf
-Abfent Pleafures feem the beftj
^-
,
.. . ,
Withwing'd
Defire
andHaftewethofepurfues
it ftick not fo cloiely to it, as upon the Failure of Butthofeenjoy'd,
weflraitway
call for new.
Lite, Life we wilh, ftill eager to live on,
^c.
Mx.Cnech.
Fear, as it is a dangerous Enemy to human Minds,
fo is it a Motion
altogether ufelefs and unfer-
viceable. For that good Caution which fome
make to be the Produd of it, may arife without
itsAirdlance from a wary Circumfpcftion, and from
a Prudence alike untouch'd with Anxiety,
or with
Confternation.
Jnger is a moft delhutbiveas well
as a moft violent Paffion
j which is to be rcllfted
it, to make the Soul unable to recolleft and to reco
ver its Force'.
*
Hatred is pernicious as well to
the Perfon who employs it, as to him againft
whom it is employ'd. This therefore is to be di-
ligently quench'd and ftifled, left it betray us to
Injuries and Breach of Duty againft our Neigh-
bours. And if fome Perfons do really deferve our
Averfion, yet 'twould be ftill Folly to create, on
their account, Uneafinefs and Difquiet to our
felves.
E7tvy is a moil deform'd Monfter, fome-
times
producing ill Effefts in others, but always
in the envious Perfon
j
who like Iron, o'er-run with our utmoft Streng-h and Fndeavour And
with
Ruft, not only defiles, but deftroys himfelf whereas
fome alledgc in its Favour, that it ex-
continually ^
Hope, altho' a Paffion more eafy cites our Valour, and confirms our Conftancy in
and
mild than others, yet it is to be guided with Dangers
j its EfFeft is indeed direftly contrary,
fuch a Temper, that it do not make the heart
fick ;
for it binds a Man's Spirit and Courage, and drives
nor, by aiming at Things either vain and
'
un- him headlong to his Ruin
', ".
^
Jmer
"
certain,
orbeyond its Strength and Reach, tire itfelf
-'
"
-.--..
. .
._
to no
purpofe, and become as Arijiotle terms it \y^n-
y>fiT@-
ivvisnov, a wakingDream: And that wedo
not full under Lucretius'"
s Cenfure and Charafterj
IS
the
moft
improvident "Thing in the FForld: andfeldom
alfs but xvhafwe
afterwards repent
of. Nearly relat-
ed to Anger is the
'^
Defirc
of
Revenge, which
when it exceeds a moderate
Defence of ourfelves
Never let Woman rob thee ofthy Wits.
Men fliould be mod'rate when they fix their Love,
And ne'er give up their Freedom and their Soul,
The Binds of Piffion fhould be loofely ty'd.
Fit for a wider or a clofer Knot.
' Sophocles Antigone, ver. 663.
Mil vuv ot't', S wa7,
-mi (pfivat v^* wc/itSf
Euripid. Hippol. Coron. ver. 258.
Xpni' jS
fiijfiat "f aWvtiAKf
Etj^vlct
</^'
it) Tifyi^^x 0pevav,
'A-ro t' ^m.^ii i(^l ^iv^Hveu.
Our Author here affirms, that the Maxim of Euripides agrees exaftly to a Subjeft contrary to what he applies it to, I mean Ha-
tred and Enmity, and that it ought rather to be looked upon as a Precept, not to make too great a Number of Friends
Whereas the Poet only condemns fuch an Excefs of Familiarity as caufes us to carry our Kindnefs beyond the Bounds of Duty'
and makes the Lofs of the Thing loved intolerable. This is evident from the Verfes following, which are an Explication
of the foregoing:
^
Oo"t) to Kttui
y M w^f VTtajivS
Tk /mJ^v ayav.
+ " Anger and H.ured (fays Montiigne) alfo, are above the Duty of Juftice, and are Paffions of Ufe only to them who can't
'
be kept to their Duty by plain Reafon. Utatur Motu animi, qui iiti ratione non
poteft" Eflays, Lib
? Chap i
J
Ovid. Metamorph. 1. 2.
781.
3 t-
Videt ingratoi, intabefcitque videndo Pale Envy with pernicious
Joys furveys
Others Succefs ; and in Refleftion preys
Upon her felf ; her Sin's her Punifhment.
Envy's a Torment that no Art can reach.
Of Cruelty
imprr.v',1
Succefus bominum, carpitq; i tarpitur una,
Suppliciumque
fuum ejl.
Add. Bacoyi'?,
EJf.
1 o.
6
Horat. Lib. i. Epill. 2.
Invidia Siculi non invenere Tyrannt
Majus tonnentum,
*
See Montague, Lib. i. Chap.
17.
9 AriJlotkhy% that Anger ferves infteadof Arms to Courage and Fortitude. This is very probable, but they that oppofe
(Senec. de ira. Lib. i
.
Chap. 1
6.) anfwer in Drollery :
"
'Tis a kind of Arms of a new Invention, for if we take away other
" Arms, that will fail us, our Hands can't weild that, but that guides our Hands, that holds us, and we do not hold it
"
Moutagnc^EJJdys, Lib. z.
Cbap.ii. in the End ; read the whole Chapter, which is very fine and inftruftive.
'
Ira furor brevis
eft.
Anger is a fhort Phrenzy. Hor. Lib. i. Ep. 2. Add. Liban. Progymn. Vituper. Ira.
'^
Statius, Theb. 10.
697.
Amonj; the Paflages here collefted together by our Author, there are nvo nothing to the Purpofe ;
vir.. The firft is of
Flato, whom our Author makes to fav, That a young Man of honeft Condition ought not to apply himfelf to any Science in a
fervile Way. His Words are, Nullam difiiplinam ingenuum ferviliter oportet difcere. In which he fccms to mean. That the
Study of Philofophy is only agreeable to Slaves. But this is not the Senfe o[ Plato in that Place : He only fpeaks of the Man-
ner of teaching Youth the Sciences : He will not have any Conftraint or Force to be ufcd with Children, or have them treated
like Shaves, but to be inftrufted with pleafure; becaufe, as he fays, whaUs put into them by Force can't remain long
;
befides
he adds, by alluring them, their Difpofitions are better known. '077 (tuT/' eja) vSiv iuiSm.ua
,<^
J^BAe/aj t ih<i!^^v
y^^
(jutv^vHV, 01
fZ' y^n aatial& -mi 01, /Si a 7mifA'<ih '/fi&''
*<^''' "^
'^t^
d.-:3f^.jiVTai'
4fXf
'^
ficw^
^^^
i^u.ivov (M-
^fjo.
- - -
Mn Ttiiuu S'la. 7\} 'jraiJ'as on tu< fM^/MJif, d>XA toJC'I't^ Tfia,
ha. iCj nd.n.ov oi(- 7 (,, y^a.^psf,
)'
(5 iyar- Tbt/iui', De Rep. Lib. 7. Tom. 2. This is the very Notion which Mr. Locke has fo well maintain'd in his Trea-
iik,'
Of
Education of
Children ; fee chiefly
i
73,{5f<-.and ^. 131. of the laft Edition 3t Francfort m 1708. /^^^<7 is fo far from
difcouraging any from the ftudy of the Sciences, that he tells us particularly in thjt Book, what thofe are that Children ought
to learn early, andfavs, with Reafon, that they that cry down Philofophv, asof no Ufe to the Vulgar, never underftood it;
and that moft of thofe that meddle with it are not well qualified for it. We will alfo rehearfe lome Words of the fame Philofo-
pher, andfo the Heedlefnefs of this Author will give an Opportunity to produce fomc Quotations, which contain fome re-
markable Thoughts, viz. Tiy'Svuwvaf.uLfniM
[bJ^ J' (-^a)
y
>' diifxia. fif.o(ST)ii(S. JictTauTo. 'm-naniT^aiai'
(0 y^ 'S^TfC"
^<W)
oil i
xaV
d^idir at/7? aTHcfToj, i >S vo^>s( UhaT^i^, a Wv<t yvi'in^f. The other Paffage unfitiy applied is, Seneca i.
Hippol. V.
459,
460. where we m.iy plainly fee that he is fpeaking of a clear different Thing, than of a Mind not adorn'd with
fhe Study of Philofophy. .
fer^'es,
CH A
p. I V. The Duties
of
Mmwith regard
to
himfelf,
1
7
3
ierves
^
',
that Prudence can do more without Learn- torn, and maintains a feparate
and a fuperior Efteem
:
ing^ than Learning ivithout Prudence. Therefore Tho' if it condefcends to enter the common Di-
that
Perfons
naturally foolifh and ftupid are not vifion of Sciences, it muft be placed under this
turn'd into great Sages by the Application of li- firft Head.
''
Morality is concern'd
about the
beral Studies, doth no more detraft from the Ex- Improvement of Mens Minds, and the Advance-
ccllcncy of folid Learning, than it doth from the mcnt of a focial Life> Phyftck hath the Health of
tfficacy of Medicines, that they are not able to the Body under its peculiar Care
j
and Mathema-
recover dead Men. to him that hath pall be ticks are of apparent Ufe and Benefit in the In-
given^ Matth. xxv. zp'^. And Learning, as Ho- vention of fo many Arts for the Profit and for the
race fays, Vim promoiet infttam^ j and where Conveniency of human Life. By that Learning
that vis infita, that natural Vigor is wanting, which we term Elegant and Curious.^ we under-
the other Gift is vainly beftow'd. ftand fuch as is not indeed of fo nece/Taiy Ufe, as
We mayobierve farther, that as Learning can- to render the Life of Man lefs fociable or lefs con-
not alter native Folly, fo neither can it reform a venient upon the Want of it ; and yet is worthy
native Difpofition to Wickednefs and to Impiety
;
of the Enquiries of ingenious Perfons, becaufe it
which, on the contrary, grow more incurable by either leads us deeper into the Difcovery of the
its Application, drawing thence a Supply of fecret Works of Nature, or fhews the lingular
Arms for their open Defence. 'Tis a Remark of Excellency of human Wit and Cunning, or pre-
Hobbcs^^ that ivithont Learning it is impoffible for
fcrves the Memory of Things and Actions, and
any Man to become either excellently tvife., or ( unlefs the Records of Mankind. And.fuch may we reckon
his Memory be hurt by Difcafe^ or ill Conftitution
the Knowledge of various Tongues, natural Ex-
of
Organs) excellently foolijlj'^
.
periments and Speculations, the more fine and
But the whole Couife of thofe Purfuits which fubtile Parts of Mathematicks, Hiffcory of all
pafs under the Name of Learning, is not all of the kinds, Criticifm (as it prefervcs Authors corret
fame Nature, and therefore iTiould not be all rated and entire) Poefy,
^
Oratory, and the like. Which
at the fame Price. We may divide Learning then are all in themfelves excellent, and worthy of
into three Kinds, fuch as is Ujcful^ fuch as is Praife, and ferve for the Garniture and Ornament
Elegant and Curious.^ and, laftly, fuch as is Vain and ofhuman Improvement
;
according to which Mea-
Inftgnificant
^
. Ufeful Learning may be again di- fure both the Practice and
'
the Value of them
vided into three Claffes, Morality, Phyjick, and are to be ftated and determined.
Mathematicks. For Divinity Hands on itsownBot- Vainhearmng we call, not only fuch as is made
'
^hiHilian Inftit. I. 5. c. 6. Plus fine DoHrina Trudentiam, quam
fine
Prudentia facere DoBrinam, certum
eft.
*"
Le'.'iath. c.
4.
"
Add Bacon, Effay 48.
' Montague''^ Words are,
"
The mod learned are not the lefs foolifh. I love and honour Knowledge as much as they that
"
have it, and if it be rightly ufed, it is the moft noble and powerful Acquirement of Men. But as to thofe
(
and there are a
"
vaft Number of them ) who place their chief Excellency and Worth in it, and refer their Underftanding to their Memory,
"
Sub nlicna umbra Latentes (as Seneca fpeaks,
Epift. 33.
) and can do nothing without a Book ; I hate them, if I may fo fpeak,
"
almoft as much as a Blockhead. In my Country and Time Learning has done much Service to the Purfe, but little to the
"
Soul. If it meets with dull Men, it loads and choaks them, becoming a crude and undigefted Mafs ; if with airy Minds, it
"
purifies their Wills, and l"o fubtilizes their Notions as to turn them into nothing. 'Tis a Thing of almoft an indifferent Na-
"
turc ; a very ufeful Addition to a generous Mind, but pernicious and hurtful to any other : Or rather 'tis a Thing of a pre-
"
cious Ufe, which can't be attain'd at a cheap Rate. In one Man's Hand 'tis a Scepter, in another's a Fool's Bauble." EJfays,
Lib. 3. Chap. 8.
* This Maxim of the Gofpel, which our Author applies in the Stile of a Preacher, is meant in another Senfe.
5 Lib. i^. O,/. 4. c^r.
33,34.
^
See Se?ieca de Bre-jitate Vita', Chap. \ 3 . and his Epijlle 88. where there are alfo many other fine Refleftions on Study.
7
I wonder our Author hath fpoke nothing of Logick, which is abfolutely necefTary, whatever Science we purfue, if we will
do it with Benefit. See Mr. Clerc's Preface to his Latin Logick, and The Art
of
Thinking ; as alfo the fecond Volume of Par-
rhaftana. Art. 2.
*
This Science though of no great Ufe, yet is often pernicious, becaufe 'tis very fu'ojeifl to be abufed. Let us hear Montagne
about this Matter :
"
An Orator of old faid. That it was his Work to make fmall Matters appear great. He is a Cobbler
"
that make: great Shoes for a fmall Foot. They were whipp'd in Sparta who profefTed any Art of Cheating or Deluding. We
"
may believe that Archidamus King of Sparta could not hear without Aftoniihment the Anfwer oi Thucydidci, when he was
"
asked. Who was beft at Wreftling, Pericles, or He ? He faid. This is very hard to determine, for when I have throzvn him to
"
the Ground, he'll perfuade them that Jaw it, that he did not fall, and
fo
win the Prize. They that mask and paint Women
"
do lefs Evil, becaufe 'tis no great Matter whether we fee them in their pure natural Shapes, or no ; but thefe make it their Bufi-
"
nefs to deceive, not our Eyes, but our Judgments, and to baftardize and corrupt the very Eflence of Things. Thofe Re-
"
publicks who maintain'd a regular Order and Polity, as the Cretans and Lacedemonians, fet no Value upon Orators. Ariftotle
"
defined Rhctorick wifely, c.illing it. An Art to perfuade the People, but Socrates and Plato called it An Art
of
Soothing and
"
Deceiving ; and thoi'e that deny this in the general Defcription, verify it fully in then- Rules. It is an Inftrument invented
"
to manage and ftir up the Multitude and diforderly Societies, which is never made ufe of but as a Medicine. Where the
"
Vulgar or the Ignorant, or both, have the Power, as they had -3.1 Athens, Rhodes, and Rome, or Things were in mighty Con-
"
fufion, there Orators were plentiful."
Effays, Lib. i. Chap. 51. Where we may find many other fine Things about this
Matter. To thefe we may add the Judgment of a modern Author, whofe Authority is of great Weight.
"
In Difcourfes by
"
which we fcek rather to pleafe and divert, than to inftrucl and compleat the Judgment, we can't blame fuch fort of Orna-
"
ments as are taken from Figures. But except Order and Elegancy, the whole Art of Rhetorick, all its neat Ap-
"
plications and figurative Expreffions according to the Rules of Eloquence, ferve only to beget falfe Notions in the Mind, and
"
corrupt the Judgment ; fo that in effeft they are nothing but perfeft Cheats, and confcquently ought to be avoided in all
"
Difcourfes which are defigned to inftrudl ; for they muft be efteemcd great Defefts, either in the Language or Pcrfon that
"
ufes them, fo far as Truth is concerned. Hence it may appear how little Regard and Concern Men have for the Truth, fince
"
thefe fallacious Arts h.ave fo great Efteem and Reward given them But Eloquence, like the fair Sex, hath Charms
"
too powerful to admit of any Contradiftion, and 'tis in vain to difcover any Faults in thefe Arts of Deceiving, fince Men take
"
pleafure in being cheated." Mr. Locke's Phil.
Effay,
tfc. p. 642. See alfo what I have faid upon this Subjed concerning
the Pulpit, in my Preface upon Tom. II. of Archbifhop Tillotfon\ Sermons. As to Poetry, there is an excellent
Difcourfe in
Art.\. of t\\t
Parrhafana, Tom. I. which 'twill be a pleafure to read.
9 We muft obferve here, that fomc of thefe Sciences are necefTary, if not in themfelves, yet in refpeft
toothers, in which
no Progrefs can be m.ade but by their Help ; fuch, for example, is Hiftory in refpcft of Politicks, and Criticifm in rcfpeft of
Hiftory and Divinitv. See Mr. Clerc'i An Critica in the Preface.
up
1
74
The Duties
of
Man with regard to himfelf.
Book 11.
up of falfe and erroneous Notions ; but likewife ceiv'd; andthofe who went to the Engagement verygood
all thofe Inventions of crafty or of idle Men, fet Friends, come away
mofi
violent andJpiteful
Enemies'^.
up to amaze our Minds, and to hinder us from the But fuppofing Things rightly order'd, can any
Purfuits of folid Knowledge. Amongft which, one doubt whether a Perfon endow'd with good
as we muft needs reckon many Opinions of the natural Abilities, and inftitutcd in iblid Learning,
old Philofophers, fo very difagveeable to the ap- will not difcharge the greateft Affairs with more
parent Nature of Things
;
fo we think it will not Accuracy and with more Difpatch, than if he de-
be over-fevere to join to them the greateft Part pended on the bare Strength of Nature, and neg-
of that barbarous 'Cant, which went under the lefted other Affiftances
^
? But then all thofc
Name of School Learning in the Ages preceding who apply themfelves to Study, fhould be exactly
the Reformation of Religion
>
and which is ftill careful, firft that they direct their Enquiries to a
refolutely maintain'd by feme Men, either becaufe good End, the Service of Life, or the Improve-
they know no better, or becaufe they are afham'd ment and Perfection of their Minds
;
and not make
to unlearn what they have made themfelves Ma- ufe of them for idle Amufements, or pleafantMe-
fters of with fuch prodigious Labour, or becaufe thods of paffing away Time. Ariftippus
"
in Dio-
'tis the manifeft Intereft of the Papal Monarchy to ge)!es Lacrtius, being ask'd what Things ingenious
keep Mens Wits employ'd on Trifles, for fear they Children fhould be taught, anfwer'd. Such as they
fliould make fome very dangerous Difcoveries*. may ufe when they come to be Men. 'Twould not
Now the greater Proficiency any Perfon hath be only 77;;;;r/7//, but w/c/^i:/, if thofewhofe Heads
made in foUd Knowledge, the more he defpifes are fill'd with brave Notions and Sentences fhould
thefe empty and unprofitable Enquiries. do no more good than common Ideots
'^'.
The
Another Thing to be confider'd by thofe who Egyptians call'd their Libraries Phyfick Shops for
difpute about the Ufefulnefs of Learning is this
>
their Souls, intimating their Ufe as well as their
that the Faults of bad Inftitution and of hot-brain'd Excellency '. And Jrrian's. EpiEtetus
^
thought
Pedants, are not to be charg'd on the Sciences he could not give a worfe Charafter of Mens be-
themfelves''. Is it hkely, that found Knowledge ing falfly and infignificantly Icarn'd, than to fay
and Wifdom fhould be learnt in fuch a School as that they were Lions in their Schools^ but meerVer'
Agathias defcribes under the Philofophafter Ura- min out
of
them.
nius? At their Meetings, fays he, every one talks as They are likewife to take heed, that they do not
he pleafes about the fublimcft Matters, and Points
of
refolve all Science
'
into bare Authority'', and
Divine Science; and tho" they are perpetually canvaf- Cuftom of Speech, and an unintelligible Set of
fing
thefe ^eftions, yet they neither perfuade others. Terms
j
but that they fearch into the folid Foun-
or will ever lay afide the Notionthey themfelves have dations of Things, and build their Schemes on
taken up, but whatever they be, defend them Tooth evident Reafon. As for thofe Things which they
andNail againft allOppofers. JVhenthe Difputations cannot yet bring to clear Demonftration, there
are over,thcy depart mutually incens'd, and vent their mult be no Stubbornnefs or Obftinacy in main-
Rage againf one another, like quarrellingGamcflers, raining them
5
but a former Opinion mult be
in the mojl abufive and
fouleft
Ribaldry
'.
Thus the willingly quitted, upon a better and a more cer-
Contcntion ends, without the leajt
Profit
given or re- tain Information
j
becaufe 'tis very likely another
^
See Htf^M's Leviath. c. 46, 47.
Plutarch [m Akxand.) has left this Cenfure of .^/-(/^a/ZA Metaphyficks, i\at they can
aj^ord no real Advantage to theTeacher or the Learner. Martial. l\. Epig. 86.
Turpe e/l difficiles habere nugas, 'Tis (hameful Men fliould needlefs Knots invent
Et ftultus labor eji ineftiarum. To prove laborioufly impertinent.
*
Vid. Charron, 1. 3. c. 14. n. 21, &c.
"^
The Mifter is defcrib'd very agreeable to his Scholars, Bearing above the
reft
only by Impudence, and Volubility
of
Tongue, he appear'd the firft Fool of the Herd, and conquer''d thofe that knew nothing, by
knowing juj} as much. The like Form of Difputation is ridicuPd by Lucian, in his Accujato, and in Charron.
'
Plutarch
de Educat. The Life of
Contemplation is
of
no JJfe, unlefs ABion be added. And the Man
of
Anion cannot but miftake and mifcarry^
without the
AJftftance of
Study and Contemplation. Saluft. Jugurth. The more reafon have we to wonder at the Perverfenefs of thofe
who
fuffer
their Parts and Genius, the
beft
and the noblefl Advantage
of
a MortalNature, to ruft
in Idlenefs, and to grow dull and
barren through want
of
Culture. JElian. V. H. 1. 7. c. 15. When the Mitylenians zvere Mafters of
the Sea, they impos''d this
Penalty on their revolted Allies, that they fhould not teach Children Letters or Mr/fick : Thinking it the
moft
grievous Punijhment
that could be infixed, to live in utter Ignorance
of
the Liberal Arts. Add, Cic. Oft'. I. where he fpeaks of the Study and Search
of Truth.
=
IhateMen
{ {iys oMPacuvius, inCell. 1.
53.
c. 8.) that are Philofophers in Opinion, and Drones in Bu-
Jinefs. Ifocrates Encom. Helen. The Sophifis ought to have inflruBed their Scholars in Things which are
of ufe
in common Life, and
to have exercis''d them in the skilful Management
of
civil Affairs ; taking this for a certain Truth, that a competent Knowledgt
of
profitable Points is highly preferable to the
moft exquifite Attainments in unneceffary Speculations; and thai it is much better to excel
others a little in great and important Things, than to gofar beyond them in fmallMatters, efpecially infuch as contribute nothing to the
Afjiftance of Life. Lucian in Conviv. ''Tis to no Purpofe to he wifer, unlefs weare\>^XX^r.
'
Diodor. Sic. 1. . c.
49.
8 L. 4. c.
5.
''
Horat. I. I.
Epift.i. ver. i^. NuUius addiftus jurare in verba Magiftri. 'V'lde Ciceron. de Nat. Deorum, /. i. r. 5. Seneca
de Vita beata, c. \.
'
See about the Abufe of Difputes, a fine Paffage in Montagne''%
Effays,
Lib.
3.
Chap. 8. which is copied out with fome
fmall Alteration of Words, by the A\xi)\or oi the Art
of
Thi?iking, Part t,. Chap. i(). .7.
"
Plutarcli's, Greek is, 'O
ij'
.^o{M7;w< [Si"] ik 'St^Kjtx.x Jiaf.uip-mfuv, ai/anpeAiK. 'O 'j
lae^KliK- dfioip^oat <?
(fiKtm-
^lOf, ayi.<i7@- t^-TTKi^^jLUiKw. The Author alfo quotes here the Saying of an ancient Ga^C;? Poet,
V^t/.fM.-m fMt,$Hv J'ii,
1^
f(a%v-m i'Sp ''P(Hi',
He that
affeBs
Learning fhould grow wife by it.
"
The Greek is, 'O 3 iV 'AeisTTT- tp<77(3-f, -nva. ojic a iti 78U tg.'hxt trtuS'ai fwcSrtVwK s ?> "^O/j AvJ^fit yiv'ttStiat
,
,Tr
1
^
r ^n-
'~oipi/j^^f^fij}.nf^f^,j^^fiaii^.}lf,'^nlfKi'}i('J^iht,y^iv<sr^<moi'i/^n(,i
?ti^ti!^'( 077 TitKij xfCiUcy SJj
.3^'
T^'foiiuuv ^HKUf Jh^d^eii', >) ^A ?
'-
S fii-yihOIS, li m^U (PtOLtfiifHV c* 711l{ lMKfol<, >^ TUS MiJi -ZTf/f f jS'ltl' Copif^Silt'
'
Tullfi Latin is, Obeft
plerumque iis, qui d'lfcere volunt, authoritas eorum, qui docere profitentur, definunt enim fuutn
judi-
cium adhibere: id habcnt ratum, quod ab eo, quern probant, judicatumvident.
4
^?an
C H A p.
1
V.
The Duties
of Man with
regard
to
himfelf.
1
7
1
M:in may hav'e more quick and more piercing
Labours, or any
other
way.
Upon
this Account
Parts than ourfelvcs5 and becaufe cveiy new Day Gluttony,
Drunkcmefs",
immoderate
Ufe of X
may
correft fome Miltake m the former. And men.znd. the hke
ExcefTes are to
be
avoided 'TIS
this
teachable Diipofition is a moft mfalHble Mark a famous
'
Saying
of
Democritus
in
Plutlnh
*
If
pf
\
g^ff
Mind\ Laftly, Care is to be the Body
fiould bring an AElion
of Damal a^lil
us'd, that they do not in fuch a Manner bury them- the Soul, the Soul 'would be
fure to be cad Thou?h
felvcs amongft their Books, as to negled other to this it might be rephed,
that the
Miftake. of
Duties, and render themfch-es
"^
unfit for theGe- the Mind in reference to Food,
and Pleafure and
nius of a civil and fociable Life. For Pedantry of other Things which concern the
Prefci-vation of
Mmd is a " Vice not pecuhar to Scholars, but the Body, do all proceed from its yieldina
to the
'^"^^"/'"^^J^''^^^^";^^h"g'^t^^^^^h^
World,
corporeal
Appetites and
Affeftions,
co.nrary
to
and inteas Men of all Orders, Profellions, and the
Admonitions of Reafon: So that the Mind is
Conditions.
.
,
, , .
"^ver of itfclf the Caufc of bringing the Body into
XIV. But although the principal and the moft a worfe Condition than ordinary
And therefore
laborious Part of human Improvement is concern'd to
Democritus's
Saying on one fide we will od
about the Mind, we muft not in the mean time pofe the no lefs renown'd
Sentence of
'
neophra-
' neglea the Bodyj fince the Mmd makes ufe
fius
on the other j T^he Soul ({Iiys he)
payslarze
of Its Supports, and can ne^Tr riie to any great Rent to the Body
for its Dwellinz
Atchicvcmcnt, if this Interior be ill affefted. We XV. Our Life isgivenus by our
grcatCreator
are obl.g d therefore as much as in us lies, to as a kind of Courfe or Race, in whfch we might
fecure ' a found Body for our
found Mind to lodge
exercife our Strength and Abilities by the
Direftton
ln^ and rather to harden our Limbs and Confti- of Reafon: And therefore it is not to be mei-
tution by long Endurance of Labour, than to fur'd by fo many Times drawing Breath, but bv'a
foften or break their Strength by Effeminacy and conftant
Succeffion of good Actions. Every one
Idlenefs
.
Pyn^^, is fi.d to have made this only is therefore to taJce care, that he be not iW^,r
Requcft to the Gods in his daily Devotions, J;.^'-
S.-^@. i^i^,
e^
an
ufelefs Burden to the Earth ; un-
vm, to be ivcU in Health, judging this Blelfing to profitable to himfelf, and troublcfome to others
contain under it all Degrees of Happinels. Care
-
born only to increafe the Number of Mankind*
IS hkewiie to be taken that our bodily Force and and to devour the Provifions of Nature
'
md
Vigor be not weaken'd by Intemperance in Meat that he do not only live for the fake of'his Pa-
or Drink, or by unieafonable and unneceffuy late^l
Farther, fince
human Induftry com-
__
P//;;. N, H. 1. 3.
Proem. '7iV ;;./ tobelook^dupon as a Wonder, that mortal Creatures
Jhou/d be incapable
of knotcun^ all
Things. Idem 1. ii. c. >, By my frequent Contemplations
on Nature, I have been injiruaed never to call an-, ri/W incredible
thatjke performs. D.og Laert.
1. i o. In natural Enquiries we are not to proceed according to
ftria Method andRules, but ac-
cording as the various Appearances
offer themfelves to our Objervation, and incline our Judgment. Cicero de N.it Deor 1 i "tL
Authority ofthofezi-ho pretend to teach
of
en proves a hindrance to thofe zvho
dcfire to learn. For by this Means the, nevleaL
^h^e^ro.^ Judgment, and to take everyflhing
for
fifd
and certain, ^hich they hear delivered
ly thofe
Zthe7ldmire
Qumff!. Infbt. 1. 3.
c. ,. neylove the Path Mthey
firft
trod in, -.bateverit be. Andyou
lillfind it a mfdiZu
Task to makePefons change fuch Opinions as they
Mdzohen they were Children;
becaufe everyone rather wifhes t hive s
Trouble over than to continue it
;
to have learn dformerly, than to be a Learner nozv. Idem. ].
7. c. ult. ^i body is zoillinz to fee a
Thuig lejjend in z.hich he once appear d great. Yet, as Plato obferves.
DeRepub. I. 5. ^Tis very unjuj} tl be angry^zoith the
^T^
f.df
/"''her Study would be m vam,
,f
it zvere unlazcjul to improve the Difcoveries
of thofe that zvent before us
" To tins End it may be ulcful to read tliat incomparable Book, Medicina Mentis ^ Corporis, by Air. Tchernhaufen
Vide
Diodor. Sic. l.l.c.
45.
1 De Sanitate tucnda. Add. Bacon
EJf. 30.
e
Homer. 11.
v.
^er 104.
'
<
Ovid, de Pont. I. i
.
El. 6. , Mors nobis tempus hahetur iners.
' "^
'
To be Idle's to be dead.
Sil. Ital. I.
3.
_ S>uantiim etenim diftant a morte filentia vita F
A fiient Lite is an untimely Grave.
Theocrit. Idyl. 14. V.oiHy v J\ei olf yvu yKwgk.
.'
, ,
. .
, ,
Bufmefs fliould be ply'd whilft Age is green. AddG^?//. /. ig. r. 10,
5 Sophocl. Antigone, ver.
725. Aw.
a.vfia. Ki^vi li mcnh, ti txJ.vba.VHV True Wifdom is not ftiff or pofitive,
.fi .< A r J T n-
,
n'W.' ar;^oi' iSiv, Xj li (Mi Wiveivalyar. Nor thinks it a Dilgrace to be inform''d.
.. ,: M "T ^"'^'f"^,'," l^""^'
^fidefrom right and plain Reafon, thofe who keep their Eyes and their Thoughts
continuallr
"
hx d upon tlieir Books." Lucian
Conviv.
^
" Here is a Fault in the Original that quite fpoils the Senfe, viz. Initiumhr Vitium; and 'tis furprifmg that Mr. Hertiu,
did not correa it m h.s Edition of
1 706. Indeed all this is taken. Word for Word, out of the Art ofThirfkin^, Difc i . and
the Author ought to have referred us to the Original where he had it
>
&> J
cJidS
wS^'!t;;,'.'8a"s:'i.^-/'^-
^'-
^^'-^
''"""
^''^- '' ^^ '^^
^^s^-^^' ^"^^ ^^'^-^^
^p-
^-^'^^^--'^
j,"!il'{':'''''fX'f'f"^^^^^^^^
Pl'rt.
Epift. Lib. I.
Epift.^. The Author aUudes to this and the following
i'aflage, though he does not quote them
; nor are they diftinguilh'd by the Italick Letter,
^
^Orar.dumcfl, ut
fit
mens
f
ana, in corpore
fano, i.e. We
muft
pray
for afound Mind in a found Body. Tuv. Sat 10 v if6
Juvenal. Sat. 1 1
.
ver
34 Bucca
Fools only make Attempts bevond their Skill
;'
Tl,- M r J
^"J""^" eft menfura tua
A wife Man's Power's the limit of his Will.
rJfi^" u u
"!;''^'^^'^
"P"
an Excefs in Eating and Drinking, but upon fuch exorbitant
Expences as Men are at, not
min. t\?in "u
^^1,"'
"''
'"?"Sh
to bear them. For 'tis a Proverb fignify ing. That Men ought in all Things to exa-
t^mner.r/
"
V
'".
/'
^ ^^
""i?
2?!;'^''
^' '"'^ ='"' ^ '^- ^"^ ^"^'^"^ "^''^ '""'>'
'^^^''
"^ ^o Socrates his Words about In-
temperance,
in his Memoirs
collefted by Xenophon, Lib. 1 . Chap.
3.
thor JllT^'^ ^Ti ','xr'^f
"."
'^f"'
J^yAfftuTz T:^4vyJ, H^iuienaf in. av oj^jlui ^Tcavy^v. The Reflexion which our Au-
nor makes
upon thefe Words, is not altogether proper, for though Brisknefs of Spirits, and other Motions of the Body have
dnrnn7li^"^^"P" f^"''
t^ere are Other PaiTions purely fpiritual, as Covetoufnefs, ^yr. which are not lefs violent, and
6
H;fr
,
' ^^ Conftitution of Body. See myTreatife
of Games, Lib. 3. Chap. 4. . 6. and Chap. C. . J i, feV.
]y-
ft"
""mrus
fumus iS fruges confumere nati. " Hor. Lib. i . Ep. 2. v. 21.
4
ciZr J Ar "n
' ^^"''"^
Quotation, Aut quibus in folo vivendi caufa fal'ato
eft.
Sat. 1 1. v. i r.
,"
Aftinn r
'"''"
^- 2- '
6. Miki cnim, qui nihil agit,
effe
omnino non videtur, i. e.
"
He that doth not fliew Limfelf In
I
ntiion, leems to me to have loft his very Being." But this is nothing to our Author's Purpofs. For by thefe Words one ofthe
a monly
I
-5 The
Duties
of
Man
with regard to hlmfelf.
Boo k II.
monV
"xercifes
itlelf one of thefe two Ways, in Laud. Bufty.
The like Cuftom was receiv'd
eirhc'r
in'procurin"
Things neceffiuy tor the Pre- amongft the Peruvians, under their antient Incas
i
ferv irion of Life,
%r in
difcharging the Offices of the NobiUty alone being allow'd to improve them-
-x focril
ind a civil
Condition j
which admit of felvesbytheStudyolLetters. Z>c/^ F'f^^./.iv.f.ip.
Pi-eit Variety
and do not all liiit alUce with all 'Tis a true Obfervation o Xenoplmi, Cyropxd. l.n.
liens
Capacities
and
AbiUties
^ ; it is manifell ThofePerfons
arrive at the greatejl Height and Per-
thit every M'^n
oueht
with
early Care to choofe feaion in particular Attainments, -ujho have given
nn'r -md undertake
iuch a Comie of Life as is ho- themfelves
wholly tofomefingle
Pmjuit, avoiding Mul-
ncft
profitable,
and
comporting with his'Parts tipUcity
of
Bufinefs
and
of
Enquiry. As he faysweU
nnd Straiath In
^yhlch
Choice '"Men are ufu- m^nothtxmcc. Lib. vmrTistrnpoff^ble
that a Man
ally
determin'd,
either by
Impulfe and IncUna- ivho profejfeth
rnany Arts together floould
excel m all.
t on of Genius
and Fanfy,
or by fome peculiar Hence it appears, that not only thofe Perfons do live
Aptnefs of Body or Mind, or by Condition and in a State repugnant to found Reafon, who main-
Omlitv of Birth,
or by the Goods of Foitune, tain themfelves
byRobberyorVillanies>
butthofe
o^l^v the
\uthority
of Parents, and fometimes by too, who withdraw
themfelves
unneceffiirily from
dieCommand
of the civil Statej or laftly, by the the
commoi^Duties and Offices of Lifej fuch are
Invitations of
Opportunitv,or
by the
Compulfion many of the modern
Hermits and Monks, as weU
of Neceffity
^
IfocrateS in Areopagit. gives us asfomeof the antient
Philofophers. Buttholewho
this \ccount'of
the old. Athenians : Under
fo
great chiefly fall under this Cenfure, are the Iturdy and
a-ilncm-litrof
Fortmes^theycouldnot
p-efcribe
toall MtVagrants, who abufe the Divine
IJime
into a
the fame
common
Esercifes,
and therefore
they put Trade of getting Money and make God as it
emindiiferentlVays,accordingtotheirCircump.nces
were, their Tributary.
The
Wickednefs of thefe
ndConition.
The meaner Sort they
engaged inAgri- Varlets is the greater, if they voluntarily maim or
culture and in trading ; well knowing, both that Idle- diftort any of their Limbs fo as to render them-
^w^heCaufeof%verty,
andPoverty a tempta- felves incapable o doing the Wodd any Semc^
tiL to biiury
andMifchief
So that by removing this though they lliould afterwards dcfiie it. Tis a J
Fountain of Vice they thought they Jliould
prevent the Cuftom very remarkable amonglt the Cbineje, that 1
F^-ilswhichus'dtoflowf-omit.
Asfor
the more weal- no Perfon of found Strength is permitted to beg,
% the-'i they
cmpeWd
to apply their Minds to Horfe- although he be blind
;
fuch unfortunate Wretches
fnalfJjip
feats of
Body,
hunting, and Philofophy : being employ'd in turning Mills, from whicn Ser-
Apmhlndin^hat
fuch
Employments andAmufements vice they earn tharSub^lftence^
r,i,h
needshavethls
^ood EfeSl,to
make fome
excel m Again, fince Time runs on with fuch fwift
rirtue andto keep others from
being notorious in Vice. Steps, fince Death furprizes Men lo oiten when
It was'an
Ordinance
amongft vVz Egyptians -xixA In- they leaft exped it, and is always beyond their
flia-ts that every
Man lliould follow his Father's Power to avoid
}
thence it follows, that 'tis our
Tnidc.i).W-.6V../.i...74-and/.xii...4i.
^
The Duty to make an early
;
Ufe of Life, not to
Reafon of which
Inftitution is gi\en by Ifocrates, begin too long a Thread of Attions, not to lay
r)i,lo?ifts hbours to prove a Providence
againft the Epicureans that denied it :
for, fays he before. To maintain that there are
Dialog its Uboun to
P
,^ ^i^liion, is much the fame Thing; for
he that doth not, &c. So that this PalTage
"'.K'ot be fitly applied to the Idlenefs of Man, but by a Preacher : He might much better have quoted Saluf. Words, who
r
"
That thev onlv live trulv, who arc bufied in doing good ; the idle Man's Life is Death." Sed multi mortales dedtti
2llr\ ataue fom'no
indolii,
incultique vitam, ficuti
feregrinantes, tranfiere, quibus profeSlo
contra naturam corpus voluptatt,
Inmaonerifuit.
Eorum ego vitam, mortemque juxta exifiimo, quoniam de utraque filetur.
Verum emmvero tsdemm mht vi-
ZTaZe Li anima vidctur, qui aliquo ncgoti, intentus, prceclarifacinoris, aut artu ion^ famam
qu^r^t.^ De Belh Cat.lm. c. 2.
M^l;mus Tirius alfo fays.
That Idlenefs belongs to none but a dead Man, tc
o
6>^o:'y tfToef^ctyi-H
vvQ-av aM h -tcKu, v^xfv.
r)Tnlrt\ Mr BrufcreMo
has a fine Pailige.which may perhaps agree better than all thefe Q^otUions of old Authors " There
'^..(nch Creatures made by God as are called Men, who have a Soul, which is a Spirit, whofe Life is wholly employed, and
"
a 1 their Thoughts
taken up in fiwing Marble : This is very filly, and a Thing of little Worth
;
and there arc others that
"
wonder at it but are nevei thelefs ufclefs, and fpend their Days in doing nothing ;
this is worfe than lawing Marble. Cha-
raster of
the Manners of
this Age, Chapt.
of
Judgments, p. 450, 45
1 . See what I have faid in my Treatife of
Games, Lib. i.
Chap.
1. I. and Lib.^. Chap. 6.
"
VM&Effaisde
Morale,
Vol.
i-
p. \i2oz.
Vide Mr.
Oflervald'i Caufes of
Corruption, Engl. Ed. p. 227,
^c.
'
Mart. Hifl.
Sin. I. \. ( 34-
5 mcrates^, Greek is, 'A^mf ^
%^ S^ t^i o^^\ {y^V J^^^rfjCd, ix
cj'vr' iZ
,
^jOfJ^Kc^f -r!
^\^
ISU^'
'^r-iw
6
Ifocrates only fays, that Bufiris
would have no Man have more than one Trade or Profefiion, becaufe 'tis not poffible to
^had better ^avc joined this with what he quotes out of Xenophon^,
Cyropad. Lib. 2.
Chap. i.
. 8.
and Ub.i-
Chap. 2.
S\
7
The moft glorious and principal Work of Man is to live well. All other Things, as to reign, get Eftates
buili
"
are but
Arendages and Helps for the more They are mean Souls who are buried in Bufines, and do not
kno>v
how to dffentaolle
themfelves, nor to leave them, and refume them."
Montagne', Effays, Ub.
3.
Chap, ult.
too
Chap. IV. Th Duties
ofMan with
regard
to
himfelf, 1
77
too vaft a Tram of Defigns-\ We ought like- Cmcc Society, for
which
a
Uxn is fent into the
wife to have the Accompts of our Lite always World, cannot be well
exercis'd
and maintained
drawn up in a Readinefs, and to hai'den our Minds unlefs every one, as much
as in
him lies tikes
betimes agamil the Terror of Dying-y that with- care of his own Prefervation
(the
Safety of the
out a trembling Reiuftancy, without repining at whole Society of Mankind
being
a thing
unintel
our Creator's Pleaiure, we may refign, when he ligible, if the Safety of each
particular
Member
demands It, what he lent us of his free Bounty, un- were an indifferent Point) it manifeftly
appears
deriio Terms of keeping \
that a Man by throwing
afide all Care of his own
XVI. How paflionately every Man loves his Life, tho' he cannot properly be faid to injurehim-
own Lite, and how heartily he lludies the Secu- felf, yet is highly injurious
both to Almighty
rity and Prelervation of it, is evident beyond Dif- God, and to the general Body of Mankind
' '
pute. But it will admit of a Debate whether the It was not rightly inferr'd in the
Argument wc
bare natural Inftinft, which he enjoys in common juft nowmention'd, that the Law ofNature did not
with Bealb, mclines him to thefe Defires ? or concern itfelf with this Matter, becaufe Inftin6t
whether he is not engag'd m them by fome fu- did before drive us on the like eood Refolution
perior Command of the Law of Nature
? For, in We fhould rather imagine, that the Force of In-
as much as no one can, in a legal Senfc, ftando^W
ftind was fuperadded (as an able Second) to the
to himfelf, fuch a Law feems to be of no Force
Didate of Reafonj as if this Help alone could
or Significancy which is terminated in my felf, fcarce make a Tie ftrong enough to keep Man-
which I can dilpenle with when I pleafe, and by kind together. For indeed, if we refleft on the
the Breach of which I do no one an Injury. Be- Troubles and Miferies thatconftantly
wait on hu-
fides. It looks like a needlefs thing to eilablilh man Life, and do fo far outweigh that little and
a Lawabout this Point, fince the anxious Tender- mean Portion of Pleafure ', which through a
nefs of Self-love would beforehand drive us fo perpetual Repetition grows every Day more flat
forcibly on the Care of our own Safety, as to and languid, fo that we muft needs loath it in
render it almoft impoffible for us to aft other- every Enjovment
;
and if we confider flirther
wife '. If then
=
a Man were born only for
how many Men have their Days prolong'd only
himfelf, we confefs it would be convenient that to make them capable of more
Misfortunes and
he fliould be left entirely to his ownDiipofal, and Evils
>
who is there, almoft,
who would not rid
be allow'd to do whatever he pleas'd with himfelf himfelf of the Burthen of Life, as foon as pofTible
But fince by the univerf^il Confcnt of all wife if Inftinft did not render it fo light and fofweet
j
Men It is acknowledg'd that the Almighty Crca- or unlefs fo much Bitternefs or lb much Terror
tor made Man to ferve him, and to fet forth his were join'd to our Notion of Death ? And yet
Glory in a more illuftrious manner, by improving
who is there almoft who would not break through
the good Things committed to his Truft^ and the bare Oppofition of Inftinft, had not the Com-
=
Martial, I. i. Epigr. i6.
yJrs hngavitabrevis. Hippocnt.
Non
eft,
crede mihi, fapientis dicere, Vham : The Future is the Tenfe of Fools. Delay
Sera nimis vita
eft craftina : vive bodie.
May make to Morrow late j be wife to Day
Horat. 1. I. Epift.
4.
'
Interfpem curamque, timores inter
&
iras,
Whilft Hopes, Cares, Fears, and Frets to plague you join
Omnem crede diem tibi diluxijfefupremum
;
Think every Day your laft that is to fhine,
' ' '
Grata fuperaeniet, qu<s nonjperabitur, hora. 'Tis ot/ ^x/f^w^ makes a BlefTing dear :
. , ^ ,
_
.,
An Hour's Reprieve is worth a vulgar Year.
Sil. Itat. Lib. 3. ver. 141.
Brevitafque vetat mutabilis hora Time, ever on the Poft and on the Change,
Prolatare diem
Forbids us to
'^''^y
Herat. Carm. i.
4, Vitie fumma brevisfpem ms vetat inchoare longam.
The fhortnefs of our mortal Line
Forbids a longer Thread in our Dcfign.
"
Sil. Ital. ix.
376.
^
-^
Virtus futile nomen,
Virtue's but an idle Sound,
A'i decus adfuertt patiendo, iibi tempora lethi
Unlefs undaunted Honour keeps our Ground
Proxmaftnt
Againft the laft Attack of Fate
f^i'f'
'^'
^-
' 7- ^- 40-
,
One Day
paffeth^ Judgment on another, and the
laft
on all. Arrian Epiaet. 1. i. c. 1.
Tw pa<
sAflttff5)f,
e, TO TOTi Tif^ni^o^/' 7mi ; f wfccr*^^ t -m d.<nqta. ^J'iJhi'la.. When my Time is come, I mill be prepared
im-
mediately to leave the World.
After what manner ? Why, like a Perfon who is reftoring what was lent him. Add, M. Antonin.
1. 12. f. 12. mii Bacon, Effay 2. See alfo Montagne\ Effays, Lib. i. Chap. 19.
^
Compare Ant. Matth. de Crim. Prolegom. c. 3. /. 4.
%.
XVI. ' Senec. de Benef. Lib.
4. Chap.
1 7. Supervacuim
eft
enim, in quod imus, impelli : quemadmodum nemo in amorem
Jul cobortandiis
eft,
quern adeo dtim nafcitur trahit. 'Tis needlefs to drive us, whither we are going of our own accord. No
one wants an E.xhortation to beperfuaded to love himfelf, fince he drew in that Principle with his firft Breath.. See alfo Xe-
mphon s Memoirs of Socrates, Lib. i .
p. 4Z3. Ed. Steph.
* The
Obligation of preferving and compleatin;i a Man's felf, proceeds direaiy from Selflove plainly, which wc have
proved,
5. 15. ]<iote i. of the foregoing Chapter, to be one of the principal Fundamentals of all our Duties. Indeed
Inftinft
alone
cannot always fo forcibly conquer our own Idlenefs and Negligence, as to make us know fufficiently, what is really profit-
able,
or hurtful, to our own Self-prefervation, as Experience teaches. On the other fide, 'tis fometimes too fierce, andfome-
tunes too blind, to leave to its Direftion entirely, a thing that requires fo much Circumfpeftion, as the Care of ourfelves, and
our true
Intereft does, which ought to be managed in fuch a manner, as not to be prej udicial to Religion, the Rights of others,
or the
good of Society.
3 Mr. Ba^e
has over and over prov'd in his
Hift.
and Crit. Diaionary, that the Miferies
of Life
are more andgreater than its
^..omjorts.
The
places are marked in his Index. See alfo my Treatife of Games, Lib.
3
. Chap, i . . 3
.
A a
mand
1
-J
8
The Duties
of
Man with regard to himjelf, B o o k II.
mand of our Creator fecur'd us with a much ftron- XVII. 'TisaQueftionof more Difficulty, whe-
ger Bar and Relfaaint
^?
"Nature, fays ^iincli- ther at all, or how far a Man hath Power over
"
Uan^ hath invented this chief Device for the his own Life, either to expofe it to extreme Dan-
"
Prefervation of Mankind, to make us die imwil- ger, or to confume it by flow Means and Degrees,
"
/?^/>-,thus enabling us to bear fo vaft a Load of or laftly, to end it in a fudden and violent man-
"
Misfortunes as fills to our Share, with fome Pa- ner
*.
Many of the Antients allow'd a Man
"
tience and Quiet." AnA Socrates mXemphon^ an abfolute Rightin thefe Points, and thought he
declares it to be ?? jM/^x^y^
-nxr^i^-,
the Artifice
might either voluntarily offer his Life as a Pledge
of a ivife
Workman^ or Builder^
"
to have implant- for another's, or de'vote it freely, without anyfuch
"
ed in Men a Defire of producing Offspring
j
Defign of prefer\'ing the Life of his Friend
; or
"
in Women a Deiire of nurfmg and bringing whenever he grew weary of Living, might pre-
"
them up ; and in all, when brought up, a vaft vent the Tardinefs of Nature and Fate. Pliny
"
Defire of Living, and as great a Fear of Death."
'
calls the Ability to kill one's felf, the
moft
ex-
And this lall Motive is the main Security of every ceJIent Convenience, in the
midfi of fo
many "Tor-
Man from the Violence of others. For howeafy ments
of Life.
Whom we can by no means ex-
were it to X-;//, were it not fo hard to die ? Hence cufe from flat Impiety, for daring to think fo ab-
he prefently becomes
"*
Mailer ofother Mens Lives, jeftly
'
of the greateft Gift of Heaven. It is
who hath once arrived at the Contempt ofhis own. our Bufinefs to examine what feems moil agreeable.
And the Regard that others have to their own in this Cafe, to the Latu
of
Nature. And here we
Safety, is the bell Defence of mine'.
* may take it firfl of all to be true beyond Difpute,
^
^inn. Declam. 4.
What SatisfaBioa, O wretchid Mortals, can it prove, to keep the Soulforfo
many Years, or,ifNaturi
allowed it,
for infinite Ages, in the iinfleafant and wearijome reftraint of
the Body ? If
we diligently iveigh and examine all our
foys,
all the Pleafures, which in this univerfal Scene
of
the World, cither attrail our Sight, orflatter our Senfes, wejhall
find
the
whole Life of
a Man to be no more than afingle
Day. They muft
bclovj and abjed Minds which are not tired with this poor Circu-
lation
of
Anions. So that he who by Application to honeft
Arts i; able to underftand what is the FerfeElion of Goodnefs and true
Happinefs, will think no Death untimely : and thofe who refer the Defign of
our Being chiefly
to the Mind and Soul,
muft every
Day be furf
cited
of Life. Ye expeH I
fliould now give an account how many things there are in this port Stage, which we ought to
avoid and decline ; that Ipouldfet
our Fears and our Calamities againft our
Joy
and our Succefs, Let us then weigh thofe dear
Comforts for
which we weary the Gods with vain Petitions, andon the account
of
which we complain
of
the Shortnefs
of Life :
And what are they, but Vanity, Greedinefs, Luxury, and
Luft
? And fljall
not we be afhamed for
the Sake
of fuch fcandalouS
Privileges, to bear Weaknefs, Grief, and tedious Diftempers ;
and even to court their
ftay,
when we have an opportunity
of throw
ing them
off
andefcafmg
?
'
Xenophon k'^omx^. 1. i. "^ Add. Charron, 1. 2. c. 11. n. 8.
^
See Montagne's Effays,
/. 2. c. 3.
= N. H. /. 2. c.
7.
'Tis the Expreffion oi Seneca, Ita dico, qilifquis vitamfuam contempfity tu/e Dominus
eft.
Epill.
4.
and Mr. Corneille, in
liis Cinna, makes jEmilius fpeak thus of Auguftus ;
Whatever Care or Order thou
doft
take.
He that defpifes his own Life, doth make
Himfelf mafter of
thine. Aft. I . Scene 2.
This Verfe is alfo found in 5^cr/3's Tragedy, Hercul. Oct. v.
443.
Contempfit
omnes ille, qui mortem prius. He contemns all Men that contemns Death.
%. XVII.
'
Mr. Montagne's Words are here remarkable : After he has alledged the Reafons of fuch as hold it lawful to kill
themfelves, he goes on and fays,
"
Sevcml hold, that they may not leave this World without theexprefs Command of him that
"
fent them into it ; and that God hath placed us in it, not for ourfelves only, but for his own Glory, and the good of
"
others, and he is to releafe us when he pleafes, and not we ourfelves ; that we are not born for ourfelves, but for our Coun-
"
try ; and therefore the Laws call us to an account of Ourfelves, for their Intereft, and have an Aflion of Murder ag.iinft us.
"
Nav, we are in another World punifhedas Dcferters of our Stations, as Virgil (in his jEneids, Lib. 6. v.
434,
^c.) fpeaks:
Proxima deinde tenent mcefti
loca,
quifibi lethum Thofe doleful Souls in the ne.xt Rooms of Hell,
Infontes peperere manu, luccmque peroji Who, without Guilt, did flay themfelves, do dwell.
Projecere animas
.
,
"
'Tis an Argument of much Bravery and Courage, rather to lug the Chain that clogs us, than breal: it. Regulus's Conftancy is
"
more commendable than Cato's Defpair. 'Tis Indifcretion and Impatience that haftens our Pace
;
Virtue will not tuin its back
"
upon any Misfortunes, it rather feeks out Trouble and Afflidlion, as its Nourifliment. The Threatnings of Tyrants, Fires,
"
and Executioners, rather invigorate and enliven it. {SeeHorace, Lib. 4.
Ode
4. v.
55,
i^c.) And Seneca's Theb. or Phcenijf.
Aft. I. ver. 190,
i^c.
Rebus in adverfts facile
eft
contemnere vitam,
Fortiter ille ficit, qui mij'er
cffe poteft,
M/jr/. Lib. ii. Eplgr.
57.
"
It is a Sign of Cowardice, and not of Courage, to call: a Man's felf into the Gr.ive, under an heavy Tombftone, to avoid
"
the Strokes of Fortune. Courage will not be beat out of its Way, or Courfe, by any Temped that attends it.
Horat.Od.iii.3. SifraSlus illabaturOrbis, If the World falls about his Ears,
Impavidumferient ruinx. The Ruins will notraifehis Fears.
"
Mod commonly, when we are flying from other Troubles we fall into this. By avoiding Death we fometimes run headlong
Hie rogo, non furor
eft,
ne moriare, mori ? Mart. Lib. 2. Epigr. 80.
"
As thofe who, for fear ofa Precipice, throw themfelves headlong from it. {See Lucan. Lib. 7.
ver.
104, i^c. and Lucretius,
Lib. 3. V.
79,
(Sc.) Contempt of Life is ridiculous, for our Being is our All. Things which have a more noble and excel-
"
lent Being, may flight ours, but 'tis againft Nature for us to defpife it ourfelves, and bring ourfelves to negledt it. 'Tis a par-
"
ticular Difeafe, which no other Creature is troubled with, to hate and defpife ourfelves. 'Tis a like Folly to defire to be an-
"
other Thing than we are. The Confequerce of fuch a Wifli does not concern us fo much, as contradift and hinder itfelf He
"
that defires to be made an Angel, does nothing for himfelf, he defires nothing better ;
for having no Exiftence, how can he
"
be fenfible of, or rejoice at that Amendment
.?
The Security, Indolence, Impaifibility, and Privation of the Evils of this
"
Life, which we purchafeby dying, bring no Profit to us. In vain he avoids War, that can't enjoy Peace; and in vain he
"
flies from Pain, ^vho has no way to get Eafe. All Inconveniences are not fo heavy, as to make us defirous to die to avoid
"
them ; for fmce there are fo many fudden Changes in human Affairs, it is hard to judge when we are come to the full end of
'
our Hopes. All Things, fays an antient Proverb, are full of
Hops to a Man as long as he lives. Eflays, Lib. 2. Chap. 3.
"
Madam Deftpoulieres has fome fine Verfes to thispurpofe:
In greatncfs
of
Courage Men do not know But Difgrace follows them hard, as they deferve.
When they are got to the Rank
of
the Herd's. By one Death they have efcaped a thoufand.
Thofe Greeks and Romans who themfelves
flew,
Horvfrveet
it is to troubled Hearts tofigh !
That they might make themfelvesfamous. It is more noble, more difticult
Whatgreat Thing have they done ? The/re departed this Life ; To bear a Misfortune, than to be delivered
from it.
Diverfe Reflex. S'/rtffza X. Tom- i.
4.
that
Chap.
IV. The Duties
of
Man 'With regard to
himfelf. i
79
thiit fince Men both can and ought to Ipply their mand us to lay down our Li-vcs
for our Brethren) that.
Pains to the Help and Service of another
j
and without any fuch rigid
Injunftion of a Superior^
fince
fome certain kinds of Labour, and an over- a Man Hiould voluntarily expofe
himfelf toa Pro-
ftraining
Earneftneis in an)', may fo affeft the bability of lofing his Life for others;
provided he
Strength and Vigor of a Man, as to make old hath good hopes of thus procuring their Safety,
Age and Death come on much fooner, than if he and that they arc worthy of fo dear a Ranfom :
had pafs'd his Days in Softnefs, and in cafy Pur- for it would be filly and fenfelefs, that a Man
fuits ; and one may, without Fault, voluntarily fhould venture his own Life for another whom
contraft his Life in Ibme degree, upon account 'tis impoflible to prefervc
; and
-
that a Perfon
of obliging Mankind more fignally, by ibmc ex- of Worth and Excellence fhould lacrificc himfelf
traordinary Services and Benefits-. For fince for the Securty of an infignificant /i^^rj-Fi'/Zow''.
we do not only live to our ielves, but to God, We conceive it then to be lawful, that a Man
ami to human Society
>^
if either the Glory of may cither give himfelf as a Surety for another,
our Creator, or the Safety and Good of the ge- efpecially for an innocent and worthy Perfon, or
ncral Community require the fpending of our as a Holbge for the Safety of many, in the Cafe
Lives, we ought willingly to lay them out on of Treaties
;
upon pain of fufFcring Death, if
fuch excellent Ufes
=".
Pompey the Great., in a either the accus'd Perfon doth not appear, or
time of Famine at 7?o^w, when the Officer who the Treaty be not obferv'd. Tho' the other Party,
had the care of tranfporting the Corn, as well as to whom he ftands bound on cither of thefe ac-
all his other Friends, intreated him not to venture counts, cannot fairly put him to Death upon fuch
to Sea in fo ilormy a Seafon, nobly anfwered Failure; as we fhall elfevvhere make out. But
them, 'That I(Jjouhl go 'tis nsceJJ'ary^ but not that I that thofe vain Culloms of Mens devotin" them-
JhouldUve.
kxA Achilles inHo/ncr^ when his Fate felves out of Foolhardinefs and Oftentation (fucli
was put to his Choice, preferr'd a haily Death in as we obferv'd to be in ufe amongft the Japonefe)
the glorious Adventures of War, to the longelt are contraiy to the Law
of
Nature, we do not in
Period of Age, to be pafs'd idly and ingloriouily the Icaft doubt. For there can be no Virtue in
at home. an Aftion where there's no
Reafon. Nor do we
XVIL Farther, in as much as it frequently pretend to maintain, t\\:it the Laiv
of
Nature oh-
happens, that the Lives of many Men cannot be liges a Man to prefer the Lives of others to his
preferv'd,unlcfs others expofe themfelves, on their own; efpecially fuppofing the Cafes and Circum-
behalf^ to a probable Danger of lofing their own; ftances to be equal. For bcfides that the common
this makes it evident, that the lawful Governor Inclination of Mankind is an Argument to the
may lay an Injunftion on any Man in fuch Cafes, contrary, we might alledgc the Tefl:imony of
not to decline the Danger, upon Pain ofthe fevereft Witnefles beyond all Exception, allowing a Man
Punifhment. And on this Principle is founded the to be always dearefl to
himfelf, and Charity ftill to
Obligation of Soldiers, which we fhall enlarge hegin at home
'^.
upon in its proper place. 'Tis a noble Saying of XIX. It remains that we examine, whether or
Socrates in P/^z/o's Apology,
'
In whatever Station no a Man, at his own free Pleaflire, either when
a Man is fix'd,
either by his ownChoice, as judgingit he grows weary of Life, or on the account of
the beji, or by the Command
of
his Superior
-,
in that avoiding fome temble impending Evil, or fome
he ought rcfolutely to contimie^andto undergo any Dan- ignominious and certain Death, may haften his
ger that may afl'adt
him there -jreckoningneither Death own Fate, as a Remedy to his prefent or to his
nor any otherE.vilfo grievous as Cowardice and Infamy, future Misfortunes
"*.
On this Point we have a
Nor doth it feem at all repugnant either to i2/- famous Saying of' Plato, in Ph^do, frequently
ral Reafon, or to the Holy Scriptures (which com- mention'd with Honour and Commendation by
'
Statins Theb. X. 609. Felix, qui tanta Iticem mercede relinquet.
Happy, who at a Price fo noble fells
Horat. Carm. III. 2. A fleeting Life !
Dtilce y decorum
eft
pro patria mori. How fweet, how glorious is the parting Breath
'
Mors l^fugacem perfequitur virum. With which our injur'd Country's Peace we buy !
Nee parcit imhellis iuventce In vain the Coward flies : whilft fwiftcr Death
Poplitibus, timidoque tcrgo. Hangs on his B.-ick-, nor fpares the quivering Thigh.
* Grotius ad Jonah, C. i . v. 1 2. If one Man does well in offering to diefor the Prefervation
of
many [as Phocion told Dc-
mofthenes) how much more is he in
Juftice
obliged to this, who apprehends himfelfto he the Caufe of the common Danger ?
'
See 2 Corinth, viii. 13, 14. 1. 14. Prin. D. prafcript. verb. 1. 6. C. de fervit. 1. 2. f. 9. D. de aqua pluv. arc. Nor can
any Argument for the contrary be drawn from i. 5. f. 4. T>. Commodati, L. i. f 28. D. de SancloSilan. Add, Tract, de
Principiis
Juftii^
Decori,
p. 122, ^c. ^WA.Lipfti Epift. Cent. 2. Ep. 22. Dr. Donne's
hia.^val&, EfT. de Morale,
Vol. I. p. 50.
* n"
*
In fine, We may obferve with Mr. Titiits (Obferv. 115.) That the efteft of thefe great Undcrtakiligs is not always fo cer-
tain, that we need believe that they thereby infallibly fhorten their Days. Moreover, the equal Poife between Self-love and
Sociablenefs, doth not confift in an indiviflble Point, but contains a confiderable Extent. Laftly, Sociablenefs fometimcs pre-
vails more than Selfloz'e. See what I have faidin the foregoing Chapter, . 15. Note
5.
S-
XVIII.
The Greek. '^Ou aV 71s i^VTiii -re;;!, i]yt]mu^@- /SJATvroi/ jT), ii \s:^ af^vIO- 7a>9)T, (r^aJuStt Jil, a(
^
Therewould be not only Folly, but great Injuftice in it ; for the Law of Nature pofitively ordains. That all other Things
bemg equal, every one fhould love himfelf better than others, and prefer his own Intereft before theirs, in a thing of that great
Confequence as Life is, which is the Foundation of all the good Things of this World. By a much ftronger Rqjfon, he that
runs the hazard of his Life, can'tendure that a Perfon of Merit and Worth to Society, fhould facriiice himfelf to fave his.
. XIX. '
Plato plainly treats here of the private Inftruftions which the Pythagoreans gave their Scholars, juft admitted
into their
Schools, and in which they difcover the Reafons of the moft abftrufe and private Doftrines of their Philofophv. Thefe
fecret Inftrudions they call'd their 'A'TtippnU, about which fee Scheffcr, De Not. W
Cotijlit. Phil. Ital. Chap. lO. What Plato
fays before of Phiklaus, a Pythagorean Philofopher, will not allow us to doubt, that the Reafon which he fets down here, as
very obfcure and hard to comprehend, is no other than what the Pythagoreans give, to prove that Self-murder is not allowable.
And 'tisthe fame exaiftly which Qicm attributes to Pythagoras, De Senec, Chap. 20.
A a 4
Chriflian
1 8
The Duties
of
Man with regard to
himfelf.
Bg o k II.
ChriftianW^riters: d( 'iv Vfi p^nfS Xir^.v h avQ^ami,
)^i J'^
ici.tj]or IK tav-nii KvWf
i Jl' ainM^i<jy.m. JVe
are placd^ as it ivere, upon the Guard, in Life
>
and a Man mujl not rid himfelf of
this Charge^ or
bafely defert his
Pofi.
Which Ladiantiush-xxhey.-
prefs'd more fully in his Divine Inflitutions
^
; As,
iiiys he, "jje did not come into the Worldupon our cwn
Plea
fur
c or Choice, fo
neither mujl we quit our Station
otherwife than by the Command
of
him who gave it
us ; who put us into this Tenement
of
the Body, with
Orders to dwell here, till he pould pleafe to remove
us. It is worth while to heiir how P/^^/o 'deicribes
the Self-murderer, whom he hath condemn'd to a
difgraceful Burial : He that kills himfelf, prevent-
ing by Violence the Stroke
of
Fate, beingforced to his
End neither by the Sentence
of
the Judges,norbyany
inevitable Chance, nor on the account
of
defending
his
Modefty
in extreme Danger; but thus unjuftly
co'iidemning and executing himfelf,
out
of
CowaMce
and Unmmlinefs of
Spirit. Ariftotle hath well
feconded his Mafter: To die, lays he
*",
either to
get rid
of
Poverty or
of
Love, or
of
any other Trou-
ble or Hardfnp, is
fo far from
being anaSl
of
Courage,
that it rather argues the meaneft
degree
of
Fear. For
'tis l-Feaknefsto
fly
and to avoid thofe things which are
hardand painful to be undergone"^. Grotoj" '' hath ob-
ferved, that Pcrfons guilty of Self-murther were
excluded from decent Honours of Burial, both a-
mongil the Gentiles and the Jews.
But amongll the
latter, one Gale is commonly excepted, and allow'd
asaiuftRcaibn for killing one's felf> and that is
'
when a Man finds he iTiall otherwife be made a Re-
proach to G o D, and to Religion. For acknow-
ledging the Power over our Lives not to be in
oui"
own hands, but in G o d's, they took it for
granted, that nothing but the Will of God, ei-
ther manifeft
or prefonptive, could excufetheDe-
fign of anticipating our Fate. As Liftances of
this excepted Cafe, they allcdge the Examples of
Sampfon, who chofe to die by his own Strength,
when he
'*
found the true Religion expos'd to
Scorn in his Perfon and Misfortunes : And of Saul,
who
'
fell on his own Sword, left he fhould
have been derided and infulted over by Go d's
and his Enemies
j
andlefc, if he fhould have yield-
ed himfelf Prifoner, the Slavery of his Countiy
and Kingdom lliould inevitably follow. For the
Jews are of Opinion, that Saul recover'dhis Wif-
dom and Honour, as to the laft Acl of his Life
;
in as much as after the Ghoft of Samuel had fore-
told his Death in the Battle, yet herefus'd not to
engage for his Country and for the Law of his
God
J
whence he merited eternal Praife, even
by the Teftimony oi David, who likewife com-
mended fo highly the Piety of thofe Men, who
honour'd their Prince's Relicks with a decent
Bm-ial.
Some extend this Exception and Allowance to
many other Cafes which bear a Refemblance to
the former. And the Foundation they build upon
is this, that as no Man can be properly bound or
obliged
to himfelf, fo no Man can do an Injury to
himfelf, when he takes away his own Life. As
for a Man's being engag'd by the Lazv
of Nature
to preferve himfelf, they fiy the Reaibn of this
is, becaufe he is conftituted and appointed by
God for the mTanitnTmceo? human Socicty,vf\\'ic\\
he muft not by any means forfike, like an idle
Soldier, who runs away from the Poft allign'd
him in Battle: And that therefore my Obligation
to fave my own Life, is not a Debt to myfelf,but
to Go D, and to
^
the Community of Mankind.
So that if that Refpeft to Go d and to Mankind
be taken off" and be remov'd, the Care of my Life
is recommended to me only by Senfitive InftinEt^
which not rifmg to the Force of a Law,anAd:ion
lepugnant to it cannot be accounted finful. On
thefc Confiderations, they think the Cafe of thofe
=
Div. Inftit. /. 3. c. 18.
^
Senec. PhceniJJ. ver. 190.
t;on
eft
Virtus
Thncre vitam ; fed
m/i/is ingentibus
Obftarc
nee
fe
vertere nc retro dare.
Martial, L. 1 1. Epig.
57.
Rebus in angufiif
facile
eft
contemnere vitam
;
Fortiter ille facit qui mifer ejfe foteft.
Virgil Tiftigns a Place in Hell to Sclf-murtherers
:
.i^iiftii lelhum
>
Ethic. /. 3. c. 2.
Valour is not, to be afraid of Life,
But bravely to rcfift impending Woes,
And never to iubmit or to retire.
Cowards in Mifery may court their Fate ;
He's brave that dare perfift Unfortunate.
-The
Itijontes peferere manus, lucemque perofi
'Projecere animas.
Who prodigally throw their Souls away ;
Fools, who repining at their wretched State,
And loathing anxious Life, fuborn'd their Fate.
';-'
'
Ux. Dryden.
Pracop. Hift. Goth. 1. 4. ^o throzv ataat our Life when there can be no Advantage, is precipitate Madiiefs : Jnd tho' fuch a blind
Fiercenefs hath fome
vain Shadow
of
Courage, yet it trill akvays pafs for Folly, in the Judgment ofviifcMen. Ammian. Marcellin.
1.25. c. 4. Iftveconfider
right, it is
juft
the fa?nc Fearfulnefs and Cotoardice, to defire Death when we ought not, a?id to
refufe it
en a.profer Occafton. Add, Roger de Bratnin. p. 2. c. 19. NicoLTrigan. de RegnoChime, \. i. c.9. Charron,\.2.c.\l.ii.i9.
'
L. 2. c. 19. f. 5.
.
*. De LL. 1.
9.
*0{
a,v iiuniv y-ltii'it, t -f Hii/ctf/uV'"' /J'* a/m^^av juoi^tu, jxriTi rnKtaf -ra^timi J^'kIw, y^nji r^ktaSwla,
1^
M-diJJ aJ>yjiV irhi 1
-Ta'cKf cT'
"^
vTn x-m (f^fHai,
tpwtoi' ^'
xj^ f^om,
&c. See a PafTage of Mr. Montague^ quot-
ed . 17. Notei. where you'll find an Abridgment, and a lively Reprefcntation of the principal Reafons which can be alledged
againft thofe who believe that Self-murther is allowable, and fome other Paflages which our Author puts in the Margin here.
5
Tliis Reafon does not excufe Self-murder at all. Suppofing that we do not any thing to difhonour G o d on our part,
*tis not our Fault, if profane Perfons take an occafion unjuftly to ridicule their Creator ; and this does not at all authorize us ta
violate the exprefs Proliibition both of the Natural Law and Revelation, in departing out of this Life without his Leave.
+
'Twas done rather out of Revenge againft the Philiftines, and God punilhedhim by hcuing his Prayers. See Mr. I*
'Clcrc on Judges, xvi. 28. 30.
5 See Mr. Le Clerc upon 2 Sam. i. 14.
*
Ariftotle obferves (Ethic.l. 5. c. 15.)
that thofe who are guilty of their own Deaths, are more properly injurious to the
Commonwealth than to themfelves ; and that therefore they defcrve the Ignominy commonly inflided on their Relicb.
Pcrfons
Chap.
IV. The Duties
of
Man with
regard
to
himfelf, 1 8
1
Pei-fons deferves a favourable
Judgment, and at
leaft a kind Pity rather than a rigorous Cenfure,
who lay violent Hands upon themfelves, when
they fee that they fhall othcrvvifc intallibly fuffera
Death of Tonurc and Ignominy from their Ene-
mies; fincc it cannot be forthe Intereft of the Pub-
lick, that they mult needs die in fo infamousaman-
ner: Or elfe, when they fee fuch an Injury likely
to be offer'd to them, as if they undergo, they
ihall be ever after fcorn'd and derided by the reil
of Mankind. Of the former ibrt are thofe who
feeing themfelves condemn'd to Death, either by
cruel Enemies abroad, or bloody Tyrants at home,
have wilfully prevented the Stroke; either to a-
void the Tortures and the Shame of a publick
Execution, or to procure fome Benefit to their
Friends or Families by this Expedient. Thus ta-
cituSf Ann. VI. zp. giving an Account offome ofthe
accused
Perfons under Tiberius^ who made them-
felves away, obferves, that the
''
Fear
of
the Execu-
tioner render''d thcfe JSls very frequent. And that
'whereas
fuch as
fuffef
dDeath in publick were denied
the Privilege
of
Burial., and had their Goods
confif-
cated; thofe who died by their o%vn Plands were de-
cently interr^d^ and their
Lafl fnils
flood good with
fullEffeEl; thefe Indulgences ferving as a Reward
for
their Hajie. And here, by the way, we may remark,
that jl/^jr/^M/'s Cenfure doth not always hold good,
Ignominious
Furor ejl., ne moriare^ nwri;
'Tis mad to die for fear of Death
i
For, as jEfchines
^
hath well diftinguifh'd, To die
is not
fo
terrible., as to bear the Infamy that attends
fome kinds
of
Deaths.
The other fort of Perfons whofe Death we ob-
ferv'd to be fo ftvourably interpreted by fome
Cafuifts '
are thole Women and beautiful Boys,
who have kill'd themfelves to avoid the Violation
of their Challity ^ And in their Behalf they
urge this plaufible Excufe, that being affiiulted
with fuch a Danger as they could not other-
wife, unlefs by a Miracle, efcape, they might
well conclude, that their Almighty Sovereign and
General now gave them a Dilmiffion, and that
they might
well prcfume
on the Confent and
Leave ot- Mankind, to
whom
they were already
loll: It being no one's
Intcrcft
that they lliould
not anticipate their Death for fo little a time, to
avoid the feeling of fuch
Tortures and
Abufcs as
might, perhaps, tempt them to yield to a more
grievous Sin
:
And inafmuch as it feem'd unrea-
fonable to condemn
generous Souls to fuch a
NecelTity, as that they mult wait for the Sword
of Villains,
who would enhance the Bitrcr-
nefs of Death, by their foul and
Ulage'^.
But to leave this particular Point without
\xn-
turing at a Determination; thus much we take to
be evident, that thofe who voluntarily put an end
to their own Lives, either as tired out with the
many
Troubles which commonly attend our mor-
tal Condition; or from an Abhorrence of Indigni-
ties and Evils, which yet would not render them
difgraccful
Members o'i human Society, or through
Fear of fuch Pains and Torments as bv rciblutciy
enduring,
they might have become uieful Exam-
pies to others
; cannot be well clear'd of the
Charge of Sinning
againft the Law
of
Nature.
Sir Thomas Moor feems to be of another Opinion
in his Utopia, but his Rftilbns do not prevail with
us to alter our Judgment.
But thofe are, on all Accounts, to be exempted
from the Crime of Self-murder, who lay violent
Hands on themfelves, under any Difeafe robbing
them of the \Jk of Reafon. Many Perfons like-
wife who have r.un into voluntary Deftrudion,
upon an exceeding Fright and Conftemation,
have on that Account been excus'd by moderate
and candid
Judges'".
It ought to be obfen-'d farther on this Head,
that it makes no Difference whether a Man kill
himfclf, or force others to difpatch him. For
he who at fuch a Time, or on fuch Occafion,
ought not to die, is by no means excus'd, if he
makes ufe of another Man's Hands to procure his
Death
; fince what a Man doth by another, he is
fuppos'd in Law to have done himfelf, and mult
therefore bear the Guilt ox Imputation of the Fact.
David was guilty of the Death of Uriah, tho' he
got it efFefted by the Hands o the Ammonites. So
Oral, de/atf. Legal. "
Vid. Paut. Diae. 1. 15. & Eufeb. H. E. 1. 8. ^
Cicero Tufc. Qu. I.
30.
Cato left the World rejoicing that he had met %mh an Opportunity
of
Dying. For that Divine Power which dwells in us for-
bids us to depart without his Leave. But when Heaven prefcnts a fair Occafion, as formerly to Socrates, now to Cato, and often
ti other Perpns, I dare engage, that a truly wifeManmil quit with J^_^tbisVale
of Darius, to enter into Happinefs ^m^i^ht
And yet fuch an one will not violently break the Chains
of
his Prifon ; for this the Laws forbid him ; but he will go out quietl-fard
pirly, when God is pleafed to give mm his Enlargement ; as
if
his
Releafefrom the Reftraint werefgn'd by the proper Ma^rate
p.-!re i.
3. f. 6. D.de bonis eorum qui ante fententiam. L.
45.^ D.deju
"
' '
- -
'^-
and Power. Comp,
Ant.Mattha: de Crim. ad 1. 48. tit.
5
c. I. f.
9.
Grot, ad Judic. c. 16.
30-
i fare f.fci.
Add, ^inSliiian, Declam. j..
/^%,^"''''!f'^
^'*- ^- ''^-
^^^^"^'"^^^'honcegotPoffefftonoftheMind, Men grow defperate, and dread nothins' but that
jirftOojeSl
of
Terror. Lucan. L. 3. ver. 684.
Mille modos inter, lethi mors una timori
eft, Amongft a thoufand Ways of Death, they fear
%
ccepere mori
That only which in part they feel
Mors timore appetita. Death
deftred thro' Fear, is a Phrafe with Sueton. Add, L. 14. f. 3. D. quod metus caufa, indMontaignS
fiflay, L.i.c.ij.
J ' s
* VIT""^'^
Words are: Nam promptas ejufmodi Mortes, metus carnificisfaeiebat ; i^ quia iamnati, publicatis bonis, fepultura
frobtbebantur
;
eorum, qui
defeftatuebant, humabantur corpora, manebant
teftamenta, pretium
feftinandi.
9 Th:s is not a fufficient Reafon to juflify Self-murder, for they ought to comfort themfelves with the Teftimony of their
own
Lonicience,
which can't blame them in that Refpeft, and bear patiently the unwarrantable Cenfures of Men, and the other
Inconveniences
which may redound from fuch a Violence. True Chaftity, as Mr. Viomafius^ fpeaks ver>' \\A\ [Inftit.-.t.Jurifpr.
Vivin. Lib.
z. Chap.
2. . 76. ) is a Thing which no Man can take away by force, and 'tis without Reafon that they are lefs
cueemed io,
who have been obliged to yield to a greater Power.
to
I Ss
The Duties
of
Man with regard to himjelj. Book II.
tvere Pilaie and the Pharifees guilty of that ofour
Saviour, tho' they did not themfelves fallen him
to the Crofs, but order'd the Soldiers to do it.
Altho' the Perfon who lends his Hands to fuch a
Service, may likewiie bring himfelf in for a Share
in the Fault. For this Reafon we don't admire the
Reflection which Floriis
^
'
makes on the Deaths
o^ Brutus and CaJJius;
JVho^ fays he, doth not won-
der, that thefe nvife and great Perfons did not employ
their own Hands in their concluding Strokes ? Perhaps
it waspart
of
their Perfuafion^ that they ought not to
defile
themfelves by fuch
Attempts^ hut that in deliver-
ing their
mofl
holy and
moft
pious Souls from the Con-
finement of
their Bodies^they fjouldmake ufe of
their
own Judgment^ in the Intention, and
of
other Mens
iVickcdnefs in the Execution. For ifit were unlawful
for them at that time to end their Lives, it was
indifferent whether they fell by their own, or by
others Violence. But if it were lawful, how can
any
Wickednefs or Guilt be imputed to the Ser-
vants who affifted them ? Tho' the Hiftorian
might, in fome meafure, be excus'd, if the fame
Cuftom were pra6tis'd in his Country, which
jEfchines
mentions amongft the Grecians, that if a
Perfon murther'd himfelf, the Hand that per-
form'd the Deed was buried apart from the reft
of the Body ^
To conclude, fince we deny that a Man hath
abfolute Power over his own Life, it is plain that
we cannot approve of thofe Laws, which in fome
Countries either command or permit People to
make themfelves away. Such a Law Diodorus Si~
cuius, L. ii. c.
fj.
reports to have been in force
amongft the Inhabitants of the Uland Ceylan, or-
daining,
"
That the People ftiould live only to
"
fuch a Number of Years, which being runout^
*'
they eat a certain Herb that put them into
"
then- long Sleep, and difpatch'd them without
"
the leaft Senfe of Pain." Add, L.in. Ch.
33.
And thus too -amongft the Ceans, all Perfons a-
bove Sixty Years old, were obliged by the Laws to
poilbn themfelves, to
fupply
Food
for the rcjl
'.
Though /Elian gives this better Reafon for the
Praftice j
"
That having arriv'd at fuch an Age,
"
they weie confcious to themfelves, that they
"
were no longer able to promote their Coun-
"
try's Intereft by their Service
;
growing now
"
towards Stupidity and Dotage
''."
ProropiuSy
Hift. Goth. L. z. relates a Cuftom of the He-ruli^
by which thofe who were weaken'd and diiabled,
either by Difeafe or Age, voluntarily fent them-
felves out of the World : The Wives hanging
themfelves at the Tombs of their Husbands, if
they loft them in this manner. jElian, Z-.iv.
^4.
reports fomewhat to the fime purpofe of the
Sardi, and the Bebrycei-y and Strabo, Lib. ii. and
Herodotus, Clio in
fin.
of the Majfaget^ who may
be conllilted at Leifure.
Lib.
4, 7.
"^
Oral, contra Ctefiphont.
c
Strabo, L. 10. HeracHa. de Polit. Vide, H. Lib. 3. Chap.
37*
^
Add, Valer. Max. Lib. 2. Chap. 6. f.
7,
8.
o
Thus Deianira fpealcs in Seneca [Here. Oet. ver.
996.)
Sed mente nojlra. And mint the Will.
.Yours Ihall b< the Hand of Fate,
Chap.
C
i3
3
CHAP. V.
Of
SFlF-DFFFNCE.
The Contents of every Paragraph of the fifth Chapter.
I. Tl^e Defence
of
a Man's Self is a lawful Violence.
II. Jnd is ordain"d by the Law
of
Nature.
III. Whatfort of
Defence is allowedin a natural State
iv. And what fort in Cities?
V.
IVhcther it is lawful againfl one that miflakes.
VI. 'the "finie
for fucb Defence in a natural State.
vii,vni,ix. And how to be fettled in a Civil State.
X
.
Of
maiming any Part
of
the Body.
XI. Of Chafiity.
TO
Sclf-prefervation, which not only the ten-
dered: Paffion, but the exafteft Reafon re-
commends to Mankind, belongs
Self-de-
fence^
or ' the v/arding off fuch Evils or Mifchiefs
as tend to our Hurt, when offer'd by other Men.
This Defence of oui-felves may be undertaken two
Ways, either without hurting him who dcfigns
the Mifchief againft us% or elfe by hurting or de-
ftroying
him. As to the former Expedient, no fen-
fible Man can queftion, but that it is altogether
lawful and blameleis. But concerning the latter,
many have entertain'd a Scruple ; inafmuch as
by putting it in Pradtice, we hurt or dcltroy a
Man like ourfelves, with whom we are oblig'd
to live in t). facial manner, and whofe Death feems
to be as great a Lofs to Mankind as our own.
And befides, becaufe a forcible Repulfe of an Ag-
greffor may caufe more Dilturbances and Outrages
in human Socicry, than if we fhould either de-
cline the Mifchief by flight, or patiently yield
our Body to it, when anEfcape is impoflible. Yet
that the Defence of ourfelves may not only be
undertaken the firft of thefe Ways, but ' when
that proves ineffcftual, even with the Hurt of the
Aflailant, we are inforni'd, as well by the
Judg-
ment of Reafon, as by the concurring Teftimony
of the learned and unlearned World. 'Tis true,
Man was created for the maintaining of Peace
XII.
Of
a Box on the Ear.
cm. Whether a Man is bound to
fly.
XIV. Wloether the Chriflian Religion commands
otherwife.
XV. Slaughter
committed in Self-defence, is guiltlcfs.
XVI.
Of
the
Defence
of
our Goods.
;vii, XVIII.
Of
a Night-thief
XIX.
Offuch Defence as is made by him who has
offered the Injury.
with his Fellows ; and all the Laws of Nature,
which bear a Regard to other Men, do primarily
tend towards the Conftitution and the Preferva-
tion of this univei-Hil Safety and Quiet. Yet Na-
ture is not backward in giving us an Indulgence
to fly even to Force., when we cannot by other
Means fecure ouifelves from Injuries and Aflaults.
For the Obligation to the Exercife of the Laws of
Nature and the Offices of Peace, is mutual, and
binds all Men ahkcj neither hath Nature given
any Perfon fuch a difl;ina: Privilege, as that he
may break thefe Laws at his Pleafure towards
others, and the others be flill oblig'd to maintain
the Peace towards him. But the Duty being mu-
tual, the Peace ought to be;^a/aa//>'obferv'd. And
therefore when another, contrary to the Laws of
Peace, attempts fuch Things againft me, as tend
to mypeftnjaion,it would be the higheft Impu-
dence in him to require me at the fame time to
hold his Perfon as lacred and inviolate} that is,
to forego my own Safety for the fake of letting
him praftife his Mahce with Impunityl But fince
in his Behaviour towards me he ftiews himfelf
unfociaUe, and fo renders himfelf unfit to receive
from me the Duties of Peace, all my Care and
Concern ought to be how to eff"e6V myownDeli-
\'erance from his Hands ; which if I cannot accom-
plifti without his Hurt, he may impute the Mifchief
Mr. BarbeyracV NOTES on Chap. V. i.
'
This is well ftatedby the Roman Lawyers, for they lay it down as a Maxim of the Law of Nations
( which we call The
Law
of
Nature
)
Ut vim atqne injurinm
fropiilfemus : Namjure hoc evenit, id quod quifque oh tutelam corporis
fid fecerit, Jure
feciffe exifiimetur, Digeft. Lib. i. Tit. i. De Juftit. & Jure, Leg. 3. See alfo Z,/7^. 9. Tit. 2. Ad Leg. Aquil. Leg. \. in frine.
Indeed, as A4r. Titiui oblerves
(
Obfcrv. CXX.
)
there may be fome Oppofition between Self-love, and the Duties of a Com-
munity, either in refpeft to the good Things which can't be poffeffed by two Perfons at the fame time ; and in this Cafe Self-
love ought often to fhew itfelf
;
or in refpeft of Evil, which equally threatens others and ourfelves. Our Author, in this and
the next Chapter, treats of this hill Oppofition, which happens either by the Aft of him towards whom we ought otherwife to
obfer^'e the Laws of the Community, or without any Aft on his part. He explains the firft Cafe in this Chapter, and clears the
other in the following; for theF.ift of the other, which produces this Oppofition, is either malicious, or not. He treats oi
the firft in this Paragraph, and will fpealc of the other in . 5.
^ We may add this Explication here, which our Author ufes in his Abridgment of the Duties
of
a Man and Citizen, Lib. I.
Chr.p.
5. . 1 2. /. e. Taking good Heed that he fhall not gain his Ends in infulting us j or that he may have Reafon to fear the
ill Succefs of his Attempt.
'_
We ought to obferve this Limitation well ; how uiijuft foever the Attempt of the Aggreffbr may be, the Community
obliges us to fpare him, if we can do it without Prejudice to ourfelves. By this juft Temper we may, at the fame time, pre-
ferve the Rights of Self-love, and Duties of Community. The Ro7nan Lawyers' have owned this Truth, Injuria autar. ( lay
they) occidere intelligitur, qui nulla jure occidit. Itaque qui latronem {^Inftdiatoreml occiderit, non tenetur,
utiqiieSi a liter
Fericulum
effugere non potest, Inflitut. Lib. 4. Tit.
3. De Leg. Jquil.
. 2. See Mr. Noodt\ excellent Treatife, Ad
Legem Aquiiiam,
Chap.
4. p. 15, 1 6.
J^
Hersdian,
Lib.
4. c. id. 'Otxi
j^ "vKo-^ov,
j^ dfd.yi(/ioir, t- c^tsMoc-w min^Ai -htvo-, *fi/y'c<<5a'
f.'J:.ot', vOTf/wcrt/.
"TH MSI/ y) oi,^5fa tS T^^iifK-^, lyitvcfi'J'e'i^-i I6y& Tra.po.Mhv.^i-.'i. In e.xtream Dansrcr, not only
Neceffity, but Reputation
obhgeth us r.uher to avenge an Injury than fuftain it. SiiKe fhould we fall by fucli a ^Mifcliicf, a't the fame time that we are
pity'd as unfortunate, we fhould be r'eproach'd as Cowards.
to
I 8
4-
Of
Self-defence.
Bo o k II.
to his own
Wickednefs,
which put me under this Pag. 33."
That fince amongfl: otherThings con-
Neceffity^. For otherwife, all the Goods which
"
tributing to the Prefervation of Man, Nature
we enjoy either by the
Gift of Nature, or by the
"
hath given us all a quick Senfe of Pain, a De-
Procurement of our own Induftry, would have
"
fire of Revenge, together with Hands for the
been granted us in vain, if it were unlawful for us
"
hurting others, or the defending ourfelves
; we
to oppofethofe in ^forcible
Manner, who
unjuiHy
"
may hence infer, that thefe Gifts not being be-
invade them. And honefi
Men would be expos'd a
"
ftow'd on us in vain, it is thePleafure of God
ready Prey to Villains^ if they were never allow'd
"
that we Ihould employ them in procuring our
to make
ufeofViolenceinrefifling
their Attacks.
"
own Safety. And that therefore, not to ufe
So that upon the Whole, to banifh Self-defence
"
my Hands againll an Aflailant, tho' to thePro-
though purfucd by Force^ would be fo far from
"
curement of his Death
%
would be the fame
promoting the Peace, that it would rather con-
"
Thing as voluntarily to cut them oiF. Tho' in-
tribute to the Ruin and Deftruftion of Mankind.
"
deed he afterwards confefles, Pag. 118. that this
Nor is it to be
imagined that the Lain of
Nature^
"
Law of Self-prefervation is not of fo ftriftNe-
which was inlfituted for a Man's Security in the
"
ceffity, but that there may fometimes
happen
World, fhould favour fo abfurd a Peace, as muft
"
fuch Cafes, as fhall either difpenfe with a Man's
neceflarilycaufehis
prefent Deilruftion, and would
"
Obedience to it, or leave him free to do as he
in fine produce any Thing fooner than a fociahle
"
pleafes."
Life
For our Parts, we think it ought principally to
II. But now, ysrhcther Si-violent Selfdefence,
and be confider'd, whether it much concern the In-
fach as is join'd with the Hurt or the Slaughter of tereit of many, that the Perfon invaded
Ihould
the Affixilant be an obliging and a neceflaiy Duty
furvive, or whether he feem only to live for him-
(as we have already fhewn it to be a lawful and
felf. In the former Cafe we conceive, that there
an allow'd Praftice ) is a Queftion not fo eafy to
lies an Obligation on a Man to fecure his own
be determin'd. In dating which Point we do not Life by any polfible Means. But in the latter
fpeak of Soldiers, or of the Guards hired by
Cafe we take it to be a Thing of
Pcrmijfwn, or
Travellers, who whilft they defend themfelves
Allowance only, not of Command, to defend
with the Slaughter of the Enemies or the Robbers, one's felf by the Death of the Aggreifor, efpeci-
at the fame time protect and deliver their Coun- ally if his Life would have been of great Service
trv',
or the Men who have put themfelves under
and Profit to many People
j
and if wc may pro-
their Care. But we confine ourfelves to the Cafe
bably conjefture, that by dying in fuch an At-
of thofe who are excited to make fuch Defence by
tempt, he incurs the Danger of eternal Damna-
their own
-
particular Danger"'. Now there are
tion. For tho' the Greatnels of a furprifing Ter-
fome who will have this Defence to be fo ftrift a ror will fcarce fuffer one exaftly to weigh the.
Command^ that it cannot be taken off even by Merits of Perfons
>
and tho' fuch a Danger as a
Civil Conftitutions j
and confequently that he Man voluntarily throws himfeif into,
and may
who fuffers himfeif to be kill'd, when he might at his Pleafure get rid of, ought to find little Re-
have violently refifted, ought to be look'd upon gard orConfideration from others, efpecially from
as guilty of Self-murder".
Which is fomething him who is the Subject of his Fury, and at whofe
like the Cuftom in Sfarta,
where the Ephori pu- Coft he is thus extravagant
':
Yet that an Ad
nifh'd a Man for having fuffer'd many Perfons to from which fo great Evils would be brought
injure him
''. upon another (as there would
fometimes from
"
The Author of the Treatife, De Principiis
Jufli
this violent Defence) fhould be reckon'd a Mat-
5? Decori., declares in favour of this Opinion
j
and ter of ftrift Duty, and the OmilTion of it a Sin,
the Argument he proceeds on is to this Purpofe, we fee little Reafon to allow. Efpecially,
fince the
Hor. 2. Sat. i . v.
44.
Nee quifquam noceat atpido mihi pacii : at ilk Hurt not a peaceful Man ; but if you try
^i me commorit
(
melius non tangere, damn
)
My Patience far
(
Yoii^d bejl keep
off,
I cry
)
flebit.
^
him
C H A p.
V.
Of
the
juft
Defence
cf
one's
Self.
1 8
7
him who hath hurt us, is deteftcd and difcarded efpecially in regai-d to their
Dealings with their
by Nature, as falhng under the Vice of Criieliy. Fellow Subjefts. For againft
thefe
who live un
Whence it follows, that the Remembrance of der the fame
Government and
Laws
("either oerD-
Enmities and Contentions ought as foon as pof- tually,or only for the tme heim)
thevoueht
to he
fible to be defaced out of our Minds. On this fo moderate in theUfe of
this violent
Self-deFenre
Account, as we find the Story in rully, the The- as then only to betake themfelves
to it when the
bans were accus'd m the General Dyet or Council. Time and Place will not admit of any
Application
o^ Greece, for fctting up a ^rasc^ Trophy of their to the
Magiftrate for his Affiftance
in
repreffine
Vidory over the Lacedemonians
;
inafmuch as it fuch an Injury, as puts either their Life or fome-
dtd not become one Grecian State to
fix
an eternal thing as valuable as their Life, or
fome Good
Monument
of
their ^larrel with another. For it which can never be repair'd, into prefent
and ma-
fcenis, the Cuftom was to raife their Trophies nifeft Danger. And even in fuch a Cafe we are
only of Wood, to prevent their long and re- by our own Strength only, to rid ourfelves of the
pix^ich ul Continuance '.
prefent Mifchief, leaving both the Punifhment,
But farther, Perfons in a natural State may not and the Caution for future good Behaviour en-
only repel a prefent Danger that threatens them, tirely to the Magiftrate's
Determination
Cicero
but hap'ing got nd of that Fear may purfue their
^
tells us, that nothing is
fo
contrary to Rights and
Succefs agamlt the Aflailant, till fuch time as, upon Laws, as the
ufing Force in a well-order'd Common^
luflicient Caution given, they fliall think themfelves wealth : But then 'tis his own Obfervation in anc-
fecure of him for the futHre. Concerning
which ther Place, that thefe Laws are
filent, when Arms
Cautwn this is to be obferv'd} if a Man having appear bent
againft us; and do not command us to
mjiir d me, flidl prelently after, repenting of what wait
for their Help and ProteSlion, when we (Joould
he had done, dcfire my Pardon, and offer Repara-
mofl certainly
fuffer
an
unjufi Violence,
before we
tion of the Damage, I am then oblig'd to be re- could procure a
juft;
Redrefs
concil'd to him, and cannot fliirly demand any By thefe Rules and Foundations
which we have
farther Security than his Faith and Promife.
For laid, may be decided moft of thofeDifputes,
which
his voluntary Repentance, and Application to me are ufually bandied in Authors,
concerning the
for Pardon,
are a fufficient Argument of his Meafure and the Moderation
of unUameabk Self-
hrra Relolution to offer me no Wrong for the fu- defence.
ture. But he^who mull: be brought to Repentance V. Some Men have rais'd a Doubt,
whether
by mam Force, and who then only thinks of %- fuppofing a Perfon alTaults me by miflake,
with-
gmg Pardon, when his Strength fails him in profc- out any evil Defign againfl me, and intending to
cuting his. Violences
5
fuch an one is not fafely to employ his Force againft another, I may in fuch
be truflcd on his bare Promife: And therefore in a Cafe kill him in my own Defence
For the
order to our futher Security, we muft either cut clearing of which Point Grotius
"
lays down this
off from him all Power of doing mifchief, or we Principle to proceed upon. That the Right of Z)f-
miift lay fome fuch Bond or Confinement on him, fence doth primarily and abfolutely arife from that
as fhall hinder him from appearing ever after for- Favour of Nature, by which fhe hath recom-
midable to us: Inafmuch as his Malice having been mended every Man moft ftrongly to himfelf
once exprefs'd, and never rightly purg'd or amend- whence no one can refufe to apply all his Endea-
ed, hath render'd him a juft Objed of our perpe- vours for the Procurement of his own Safety ; and
tual Sufpicion.
not from the Injuftice or the Sin of the AggrelTor.
IV. But that which is a lawful Praftice in Men It will therefore be fufficient to render my De-
living under a natural Liberty, who are to work fence innocent, if the AfTailant have no Right to
out their Safety by their own Strength, and ac- invade or to deftroy me,
'
and I lie under no
cording to their ownJudgment, can by no means Obligation of taking Death at his Hands, without
be indulg'd in the Members of Civil States ; and Reluftancy or Refiftancc. Farther, fince in the
.
" ^-
^/-J-
/ 5-
^^'^' ^^^^' I-
4-
'
H-
^iinailian Declam.
13. 'Twas on this Account tee received Laivs and Mm/lrata
fromthe Inftitutionof our Anccftors; that no Man might be the
Redreffcr
of
his ovjn Grievances : And
left, if private Revenze
Jhould purfue every Crime, there Jhould be a conjlant Succefton
of Injuries, anji all Parties prove alike guilty.
9 De Invent. /. 2. See Flor. I.
3. c. 2. in
fin.
Seneca Here. Fur. v.
362, i^c.
Si aterna
femfer odia mortales agant,
Should Men maintain immortal Hate,
Nee ceeptus unquam cedat ex animo
furor. Nor quell the Fury rifing in their Breaft;
Sed arma felix tcneat, infelix paref.
But ftill the Fortunate their dreaded Arms
Nihil rehnquent bella
Shake, and th' Unfortunate new Force prepare.
To try another Field; the General War
,. . .
, ...
Would clear the World, and drive a common Spoil
'
See a Parage of Arrian quoted a little lower, at . 19. Note 1.
*i,^c^^/
' ^"'^^ ^'"'^-
].
In all the Editions of the Original, not excepting that of
1 706, there is a grofs Fault, which fpoil*
the benie
;, e. Damnum tor Ronum
;
but it is correfted in his Abridgment
of
the Duties
ofa Man and Citizen, Lib. 1 . Chat. C.
^.
lb. where this Sentence is word for word.
* De LL. Lib.
3
.
c. 1 8. Nihil
eft
enim exitiopus eivitatibus, nihil tarn eontrarium juri, fs" legibus, nihil minus civile, quapi
(ompojita Republtca,
quuquam agi per vim. Pro Milone, c. 4. Silent enim leges inter arma, nee
fe
expeBarijubent, cum ei, qu,i
expeaare velit, ante
injufa panta luendafit, quamjujla repetenda. See Mr. Noodt, ad Leg. Aquil. C.
4.
, ,.,,,, ,
- "-
."I "..AggrefTor, by killing 111m, uuiici Wilt iw-jiAu --.^. .^,^,, >u,
IA 1 Ml
'""^
'^T'^
"" '^'^ ^^"'^ ^ ^^''^ Executioner, and fuffer cruel Torments. This being premis'd, the Prince who
would kill me does it either malicioiifly, and with Deliberation, or elfe in a Paffion, which he can't govern. In the firft Ca^,
1
may as lav.'f Lilly
defend myfelf againft him as againft my Equal. ?,zz my Comment 011. lYx Airidgmtnt cf
the Ditim ofaMon and
B b i Cafe
Of
the
]uft
Defence of
one's Self.
Book II.
1 88
CaTe propos'd the Love of our own Perfoiis and
Lives mult needs gain an eafy Conquell over all
other Confiderations, it is impoflible but that a
Man who finds himfelf expos'd to equal Danger
with another, mull, if he follow Nature, give his
own DeUverance the Preference in his Regard :
And fince fuch a Danger as we are fpeaking of is
brought on me without my deferving it, my Fa6b
is, for that Reafon, the lefs odious, if I turn the
Mifchief on the Author. All this being taken for
granted, 'twill be very eafy to decide all thofe
Paiticulars and Cafes which may happen about the
Point in hand. As fuppofe a mad Man, or a Per-
fon walking in his Sleep and aflfrighted with fome
terrible Dream, fliould make an Attempt upon my
Life} inafmuch as he hath no Right of adaulting
me, and I have good Reafon to prize myfelf above
all Things, it doth by no means appear why I
fhould prefer his Safety to my own. But here it
muft necelllirily be fuppos'd, that I could not de-
cline the threaten'd Dangerany other way :
Which
isnotfo fcnipuloufly to be obferv'd, when a Man
attacks me upon a Gmdge, or upon a manifeftill
Defign. The fame Decifion will hold, in cafe a
Soldier, fighting with good Intentions, alTaults
me, whom he miltakes for one of his Enemies.
For if even an Enemy had a Right of refifting
him, there's no reafon why I, who am in no fuch
State of Oppofition, fhould patiently run upon
his Sword : But he ought to impute it to his own
Folly and Heedlefnefs, that he thus drives a Friend
ontheNeceffity of an hoftileAft-, fince he ought
to have known againft whom his Force was to be
cmploy'd. The fame is to be faid, when a private
Man, lying in wait for one with whom he hath a
particular Qiiarrel, lets upon me, inftead of him,
by miftake. For why fhould I, upon account of
the Aggreflbr's Blunder, be brought under a har-
der Condition than that other Man, whom per-
haps he had fome Reafon to hate? Such an Afiiii-
lant is indeed by the
-
Cornelian Law of Rome
guilty of Murder. For though there was an Er-
ror in the Perfon, yet there was no Error in the
Defign ;
but the Will and the Attempt of commit-
ting Murder were both manifeftly declar'd^.
VI. To render the Defence of ourfelves entirely
innocent, it is commonly thought a neceffary
Condition, that, as to the Time, the Danger be
jull upon us, or, ;is it were, in the veiy Point of
feizing us : And that noSufpicion or Fear, whilft
yet uncertain, is fufficient to jullify our allaulting
another. But this Aficrtion too will prove very
unaccurate, unlefs we relieve it with our DilHn-
ction between a Natural and a Civil State. Fox as
in neither Cafe the Point of Danger, which thefe
Men fpeak of, can be underltood without fome
Latitude, fo is it moll: certain, thatPcrfons plac'd
under TiNatiiral Liberty arc allow'd a longer Space
in making their Defence by Violence, than thofe
who live under the Protedion and Affiftance of a
Government.
Inafmuch as Nature obliges us to maintain
Peace with others, it may and ought to ht prefmnd
that every one will fulfil this Obligation, unlets lie
give manifell Evidence of contrary Defigns, and
unlefs it be apparent that he quits his Obedience
to found Reafon, which advis'd him to this Duty.
But confidering how prone the greateft Part^ of
Mankind are to violate this Precept of Reafon,
whoever hath a true Concern for his own Safety,
will fortify himfelf betimes by all innocent Me-
thods of Defence} as fuppofe 'by fhutting up the
Avenues againft fuch as are plotting any hollile
Defign} by providing Arms and all other Ne-
cefiaries for ofFenfive or defenfive Force } by en-
tring into Confederacies and Alliances } by keep-
ing a watchful Eye upon the Motions and At-
tempts of others, and the like. Thus we juftly
efteem it Wifdom in a Commonwealth, to think
of War during the full Enjoyment of Peace. And
altho' Innocency will always find a ftrong Guard
and Support in the Divine Providence, yet is it
moft fenfelefs Vanity for that Man to expect Mi-
racles from Heaven for his Deliverance, who lies
ftill in a drowfy Idlenefs, and neglefts all Care of
his own Affairs. And even in Civil States, where
our Goods are in fome meafure fecur'd againft
Thieves and Ravagers, by the Severity of Penal
Sanftions, he would be reckon'd a very ill Huf-
band, who fhould forbear to fecure his Doors in
the Night, or to lock up hisClofctsand hisChefts.
To this purpofe we are inform'd, that the old
Romans us'd to fcal their meanelt Utenfils and
Houfhold Goods with their Rings, to fecure
them from pilfering Slaves } over whom, at the
fame time, they had the free Power of Life and
Death \
But now, though my providing thus far for my
C'tizen Li.c.K. 20. In the latter Cafe, I ought to fpare him, and rather Cicrifice my own Life than tjke an-ay his, provided
that he did not by his own F.iuh put himfelf into a Condition where he could not command hmifeilj^ for li a Pnnce, knowmg
had a Defign to hurt us, if not formally, yet interpretatively, at leaft, and the Intercft of a Society is fo tar from requiring us
to fuffer ourfelves to be (lain by fuch a Sovereign, that it ought itfelf to fear him. After all, there is nothing more ea(y tor
Princes, fince few of them are good Men, than to keep themfelves from luch Extravagances. If a Society lofe^; by a Lhange,
it alfo gets fometimes by it, and perhaps it would be better for it, if Men would not allow Princes fo great a Liberty to (atisty
their Paffions, and if SuccelTors had before their Eyes fome fad Examples of an unhappy Fate, which their Predeceffors had
broupht upon themfelves by thinking all Things lawful for them. What I have faid, will, by a much ftrongcr Reafon, have
place in refpeft to the Minifters of a Prince, and his inferior Magiftrates, for whom, doubtlels, there is much lefs Regard to be
had than to the Perfon of the Sovereign himfelf. I fhall fpeak fomething,
i-
14.
Note ult. of the Cafe, where the unjult
Aggreflbr is a Father.
="
Add. L.\%.
f.y
D. de hijuriis, l^ Grot.inSparf. Flor. ad I. 14.
D.adL. Cornel, de Skar. ^ Wdi Tacit, j^ii. II. i.
*
The Cornelian Law, which is treated of in the Digejl. Lib. 48. Tit. 8. punilhed Murders committed defignedly, and with
full Deliberation,
whereas the Aquilian Law puniflied Murder committed thro' fome Imprudence and Fault, the' very fmall, and
without any Defign. it&Ur. Noodt, ad Leg. Aquil. CJjap.i^,^.
r-,r- i o y., cr, r < r^r r-
. VI.
Such are principally in relation to States, Fortrefies built on the Borders of Kingdoms. See Mr. Thomafius s
Dilcourlc
upon this Subjefl, entitled, Non-Ens ailionis Vorenfu contra adijicantem ex amulalione,i.i2, ijc-
Security
Chap. V.
Of
the juji
Defence
of
one's
Self
1
89
Security can be in-urious to none, yet before I juft Caufe of fetting upon
him, becaufe he doth
can aftually airmlt another under Colour of my not yet exprefs this ill Will
towards
meinparticu-
own Defence, I muit have Tokens and Arguments lar. For it is not fufficient Proof that a Man de-
amounting to a moral Certainty, that he entertains figns to hurt me, becaufe he hath already hurt
a Grudge againrt me, and hath a full Deilgn of others; in as much as he might be provok'd to his
doing me a Mifchief, lo that, unlefs I prevent Attempt on them by fomc particular Reafons
him, I fhall immediately feel his Stroke. Amongft which he doth not find againft me. An Injury
thefe Signs and Tokens, giving me a Right to then done to another, gives me noLicenfe of fol-
make a violent Aflault on another Man, I muft ling on the Aggreflbr, whilft I am tied to both
by no means reckon his bare Superiority to me in Parties only by the common Band of Humanity.
Strength and Power; efpecially if that Happinefs But I may happen to be united by a more peculiar
deriv'd its Increale from harmlefs Indulhy, or
Obligation to the injur'dPerfon; as if, upon his
from the Bounty oi Pro\idence, withouttheOp-
Defire, I have promis'd and engag'd to alTifthim.
preffion ot others. For 'twould be inhuman Ma- For it is very agreeable to Social Nature, that a Man
^ ^ ^ __ .-\p
.
fome Men have got, when they tell us, by way of to him by thofe general Ties which hold together
Advice, He that is able to hurt you, undoubtedly is all Mankind. Becaufe, fuppofing the two Parties
iviUiiig;_ and therefore, ivithout
farther M^arning, to be otherwife indifferent to me, yet it isaftand-
dovjH ivith him, asyou loveyour own Safety. This kind ing Rule, that an Injury received
ought to incline
of Doftrine is manifeftly
deftrudiveof all fociable me to Favour, and an Injury
ofcr'd
\
to Hatred
Commerce amongft Men; and the Authors com- and Averfion \ But farther,' if on good and
monly cited in Defence of it, either are fuch probable Grounds I fufped that this /)OTC////Ag^
whofe Character prevents their Authority, or elfe greffor, when he hath difpatch'd his firft Prey, will
in the Paflages alledg'd from them, they fpeak turn his Force upon mc, and ufe his former Con-
only of Precaution in our dealing with thofe queft for the Inftmment of another; I mav then
Wretches, who have given us fufficient Tokens of more readily affift the diftrefs'd Party, becaufe his
their Refolution to hurt us
^
\ And whereas Picfervation is likely to enfure my own Safety,
fome Men bring Examples inftead of Arguments As a wife Man will lend his beft'Help towards
for fo bafe a Praftice, this is to make another's Sin quenching a Fire in his Neighbour's Houfe, when
the Rule and Standard of my a(5ting\ Yet be- his own is the next in Danger,
caufe any Man may abufe his Strength to ill Pur- More than this, if it appear by clear Tokens
pofes, therefore, as we faid before, we ought to that a Man is at prefent under a real Defign of
fence againll Danger, by timely and by harmlefs hurting us, though he doth not yet proceed to
Methods.
the open Execution of it, fuppofing us to live in
Nay, although fuch a mighty Neighbour hath a natural State, we may immediately enter on our
{hewn himfelf to have the Will of hurting as well own Defence by violent Methods, and prevent the
as the Power, he doth not yet give me direftlya Foe; provided that either upon a friendly Admo-
_
And as for that faying of Cicero
[Epift. Tdm. w.Ep. 28.) Even Slaves have been always allotd'dthis Liberty to fear accord-
ing to their own Judgment,not another's
; we may oppole to it the iharp Return oiVibius Crifpus (in ^inailian. 1. 8. c.
5.) Who
ez-er gave you Permijpon to fear/o unreafmably ? Nay, Cicero himfelf hath fufficiently overthrown this Opinion, Who, fiys he,
ever madefuch an Ordinance as this, or to zuhom can this be granted, without the manifefi Banger of the -jihole Community, that
a Man may lazofully kill him, by zi'hom hefhall pretend tofear being hereafter kilPd? Oral, pro Tull, in ^linail. /.
5. r.
13.
Add. Albenc. Gentil. de Jure Belli, l.i. c.
14.
c
p^^ fj^^f
^j Exodus ii. 14. only holds in a Civil State.
* Our Author quotes thefe Words of Cicero, as favouring the Opinion which he confutes : At h^ec etiam ferzns femper libera
fuerunt, tmcrent, gaudercnt, dolerent
fuo potius, qi/am alterius arbitrio. But if we confider the following part of the Difcourfe,
we fhall find that the Words will not bear the Senfe which he gives them. The Latin of the following pafllige in ^inciilian
K, ^ts hocftatuit unquam, aut cui coneedi
fine
fumtno omnium periculo poteft, ut eumjurepotuerit occidere, h quo mctuiffefe dicar,
ne ipfe
pojierius occiaeretur ?
J
That the Laws of Nature, which tend to the Prefcrvation of Mankind, may be obferv'd, without which they are ufelefs,
and that no Man may offer an Injmy to his Neighbour, Nature has given every Man a Right to punilh the Violation of its
Laws both m refpeft to all Mankmd, and to private Perfons. The Laws of Nature, as well as all others, which are impofed
upon Men here below, ^vould be altogether ufelefs, if no Body in the free State of Nature had Power to execute them, by pro
teftmg and preiervnig the Innocent, and reilraining the Infolent. For all Men being naturally equal, it follows, that if in that
Eflate every one have Right to pumft the Breach of the Law of Nature, there is no Man but hath it in as large an Extent as
another. Thefe arc the Prmciples of the illuftrious Mr. Locke, in Part I. of his excellent Treatife of Civil Government, Lib. 2.
Chap. 2. We fhall eltewhcre oblerve the Confequences which he draws from it in Relation to other Matters of Importance. See
Lib. i. Chap.
3.^4.
Note
3. Hence it appears, that our Author is miftaken, when he affirms. That unlefs we are under fome
particular Engagement to help a Pcrfon that is wronged by another, we are not obliged to oppofe this latter, unlefs he infults
usdireftly. Much rather, \\enot only have a Right to efpoufc the Quarrel of the Injured, but alfb, according to the Laws
of Humanity we are mdiipienfibly engaged to defend him, if we find our felves able to do it. This is the Confequence of the
Principle of Sociablenefs, as Mr. Titius, with much Reafon maintains, Obferv. 131. And I wonder our Author did not mind
It, fince, m Lib. i. Chap.
^. . 14. he approves of that fine Maxim oi Cicero, ^i nondcfcndit, nee
ohfiftit, fipotefi,
injuria:,
tamejlinvitio, quam
fi
parentes, aut amicos, aut patriam deferat, i.e.
"
He that does not prevent or refill an Injury, if he
V n"
^^ '""'^^
"
''''""'^'
*^ '^^ ''"' forfakes his Friends, Parents, or Country." Menander alfo has a fine Sentence relac-
!?V r If
'^''' '^y'"?'
" If
^"y one would be as much concern'd for the Injuries done to another, as if he recei\'d them
himfelf, and vigoroufly undertake the Defence of them that are opprefs'd, there would not be fo many Evil-doers, and thofe
that are would not be {o daring.
m itobaus Tit.
43.
See Mr. Le Clerc's Note on this Fragment,
p. 3. Ed. Amft. 1709.
4
niticn
1
po Of
thejujl Defence
of
one^s
Self,
Book
IL
nition he IS not likely to be driven from his hortile Thofc Moralifts are widely miftaken, who, as
Intentions, or that the giving fuch an Admonition Grotius
""
(hys, maintain,
"
That I may lawfully
would prove of ill Coniequence to our Affairs.
"
kill, not only the Man who offers me prefent
For no Man is oblig'd to expecl patiently the In-
"
Violence, but him too whom I ihall havedifco-
fult of another, that he may thereby build the
"
ver'dtoplotandconfpire againfl: me; asbyPoi-
Juftice of his Violence on the abfolute NecefTity
"
fon, by falfe Accufation, falfe Witnefs, the
of his Defence. And therefore, in this Gtfe, he
"
Procurement of an unjuft Sentence, or the
is to be accounted the vf^re/Tor, who made the firi't
"
like." Nor is the Abfurdity at all leflen'd by
Motion towards hurting his Neighbour, or who that Reftriftion which they add
% if
either the
conceiv'd the firfb Defign of Mifchief, and was Danger cannot otherwife be avoided^ or
ifive are not
preparing to accomplifh it, though the other Party fnfficiently ajfufd
that it cannot. Becaufe fuch a De-
ufing greater Expedition, may have furpriz'd and lay of Time as is here fuppos'd, how fhort foever,
opprefs'd him before he could bring his Plot to Per- may put us on many good Ways of Redrcfs and
feclion. For it is not abfolutely necelTary to the Relief; befides
"
the Variety of Accidents which
Notion and Bufinefs of Defence, that a Man re- may perhaps work our Dehverance. It is mani-
ccive the firft Stroke, or that he only ward offer fcft, that thefc Authors fuppofe a Cm/ State., be-
elude the Blows that are aim'd at him ; but he too caufe in that only we can conceive fuch Things as
ihall be interpreted to ad by way of Self-defence.,
unjuft Judgments, Accufations, WitnefTes, {^c.
who, taking his Foe tardy, hath prevented the For the Suppreflion of which Injuries, if weper-
Mifchief that was hatching againft him*. mit the Subjects to inflit Death, what occafion
VII. But we muft by no means allow an equal have we for Magiftrates or for Laws? No Man is
Liberty to the Members of Civil States. For in Danger of being condemn'd, if he can prove
here, if the Adverfrry be a Foreigner, we may the Accufer guilty of Calumny and Forgery,
refift and repel him anyway at the Inflantwhen Yet, if being unable to make this out, healTaults
he comes violently upon us: But we cannot his Life, 'twill be hard to excufe him from the Le-
(without the Sovereign's Command) cither allault gal Cenfure and Penalty of Murther. But when
him whilft his Mifchief is only in Machination, a Man is already actually fet upon, and reduc'd
or revenge our felves upon him after he hath per- to fuch Streights, that he hath not Power or Op-
form'd the Injury againft us ',
left we fhould, by portunity to implore the Afliftance of the Magi-
this rafh and unwarr;mtable
Proceeding, involve ftrate, or his Neighbours, he may then make ufe
our Country in an unnecefTaiy and unfeafonable of Extremities in repelling the AfHiilant : Yet the
War. And a much greater degree of Caution Reafon and Ground of his proceeding to fuch Vio-
muft be us'd in our Dealings with our Fellow Sub- lence muft not be, that he may thus revenge him-
refts. For though lunderftand that fuch an one is felf for the Injury ofFer'd
;
but only becaufe he
now coming to do me a Mifchief, or that he could not otherwife fecure his Life from the immi-
threatned me defpcrately in Publick, this will on nent Danger. And therefore fuppofing that Dan-
no Account bear me out in affaulting him ; but I ger to be more eafily driven off, he cannot law-
am to inform againft him before the common Ma- fiiUy purfue the AggrefTor, fo as to ftrike or harm
giftrate, who is to require Security for his good Be- him in his Fhght
''.
haviour. Butif
theMagiftraterefufetointerpofe, VIIL It appears then from thefe Confiderati-
I may then confult
-
my own Safety by what ons, that under the Civil Governments the 7/w^ of
Means I can, with the fiimc Freedom as if I were making an unblameablc Self-defence., is fet within
plac'd under a natural State and Condition, very narrow Bounds, and indeed reduc'd almoft
''
Z. 2. <
I.
*"
Vide /. 3.
/
9. Z). de vi isf vi armata.
Demofthene!,
Philip- 3- 'O yioiteiv 'iyc khh^iUjj, rrnvn 'js^tIc^'v, /^
i(^-ws-;'.<ia{o^-, kt- I/zci otAs^h, KAVfxnvtt
/Stf'v.I'Jj, pA ^ Tt^dJt), i- e.
"
He who is preparing and contriving Wiles for my Deftruaion, is moft certsrinly engag'd in a
*'
hoftile State with me, though he has not yet attack'd me with his Darts or his Spe.irs." nucydid. I. 6.
"
We ought, not
"
only to chaftife the open Aftions of our Enemies, but to prevent, by due Puniihments, their fecret Counfels and Defigns :
"
For they will be before-hand with us, if we negleifl to be fo with them." Procop. de Bel. Perfic.
I. 2. r. 3. Au'ksi yi x eipluJUu
iy 01 iv O'Tuholi yii'ciii']o 7ri;unti,d}>J 01 if ^C\iv>v]i< iv timvJklf -mt -nihai aAi'liV, 70 }<) 'iyy.Kttf^A TW 'tyyj:X^^nM r, x,a,P
dvrK n ya.7Bf
3-Kr, vrW^aitlcu,
i- e.
"
Thofe break the Peace, not who firft take up Arms, but who are difcover'd in any Plot
"
againft their Neighbours and Friends. For whoever attempts and defigns Mifchief, hath really committed the Crime, though
"
his Endeavours prove unfuccefsful." Phil. Jud. de Leg. Special.
"
We do not only reckon them our Enemies, who affault
"
us with Fleets or Armies, but them too who by Sea or Land make Preparations againft us. See Alberic. Gentil. advoc.
Hifpan. I. I.e. 9. Leges Wifogoth. I. 6. tit. 4.
c. 6.
\. Vn.
'
See wkit this Author fays, Lib. 8. Chap. 17. . 8.
We may add, and that
of
ours. So Mofes feeing one of his Brethren, an Ifraelite, fuffer Wrong, he defended him; aM
in vindicating the Perfon injured, flew the Egyptian, Exod. ii. 11,12. and Jas vii. 24. for, as Mr. Le Clerc fays upon this laft
PafFage,
"
Mofcs knew very well that the Ifraelites could obtain no Juftice of the Egyptian Judges. And when Power is arrived
'
at that height, that Juftice can't be had, and the Foundations of Civil Society are deftroy'd, we return again to the State of
"
Nature, in which 'tis lawful for every one to defend himfelf and his Friends, againft all Force, without feeking Help, in
"
vain, from them who will not affift us. But this Right can't be made ufe of but in extreme Confufion, as Egypt was, where
"
any Injuries might be done the Ijraelites, without any Fear from the Egyptian Judges."
3
Grotitis reads it thus, but carelefly. He maintains that all the Reafons which he mentions there, are not fufficient to pre-
vent a Perfon who has ill Defigns againft us, and kill him, altho' he can find out fome way to efcape the Danger, or is not lure
that he can
otherwife efcape it ; which Determination he founds upon the Remedies and Accidents which a little Space of Time
may produce. But he adds, that there are fome Divines and Lawyers, who extend this Favour farther, i. e. as any one may
fee, who grant to the Perfon againft whom any thing is attempted, a greater Liberty, believing that he hath a Right to prevent
his' Enemy, although he could avoid the Danger fome other way. So thefe Moralifts do not perplex themfelves in any manner
with the Reftriflion of which our Author fpeaks. Grotiiis embraces the Exception in the Negative,and maintains it againft them.
Neverthelefs I aflert. That if you examine the Thing in itfelf, he doth not fufficicntly diftinguifti between the State of Na-
ture and Civil State, as will appear by what our Author fays afterwards.
^'-nAul Gelliiis, Noli. Attic. Lil/. 13. Chap. 17. and Era/mtts upon the two Proverbs taken from thence,
to
Chap.
V.
Of
the
juft
Defence
of
one's
Self
i
p
i
which Condition
is by
feme
Authort
added to
mitigate Ba/dus's
Opinion.
IX As,to the common
Determinationi
that
-,-
-
T>,r r u r^-
^'^'^ ^'^^^'"S^^^i" our own
Defence
IS
then on-
the Innocency ot nny Defence, from the Cir-
\y yc^-i^ctni^wben-^e
cannot
poljibhefcape
the Dpn.)r
cumltances of the particular Fads
:
Yet wethink by other Means ; this is not to be
interpreted
'
'
it may be afTerted in general, that the cxadTime
^'-'^ - ^""^^ u.,^. j_-:-- _ r ^ X. ,
to a Point
or Inftant,yet fiich as admits fome fmall
Latitude,
and in which a flight Excefs will cfcape
the
Magillrate's Cenfure. And therefore altho'
an
undeilhmdingJudge will be beib able to fettle
1 in too
when a Man may fairly dellroy another in his own
Defence, begins at the Inftant, when the Aggref-
for fhcwing plainly his Defign upon myLife, and
being furnilh'd with Strength and Weapons for
the Execution, is already got into a Place whence
he may perform his Mifchiefj Allowance being
only made me for juft fo much Space as is necefllt-
rily requir'd for me to attack him in, before he at-
tacks me.
-
ftrift a Senfe, but admits of a reafonable
Latitude
upon account of that
Perturbation
ofMind
which
anlcs from fo furprizing
and fo
imminent
a Mif-
chief. For it is fcarce
poffible that a Man
under
fo terrible
ApprehenfionAould
be
foexaftincon-
fidering and difcovcring
all Ways of Efcape,
as he
who being let out of Danger can fedately delibe-
rate on the Cafe. Hence, as it is meer Ralhnefs
for me to come out of a fife Hold to him who
I'or Example, if a Man is making to- challenges me, fo if another
alTIiult me in an open
wards me with a naked Sword, and with tullSig- Place, I am not ftriftly oblig'd to betake my lelf
nification of his Intention to ftab me, and I at to Flight, unlefs there be near at hand a Place of
the fome time have a Gun in my Hand, I may moil: fecure Refuge
j
nor am I always bound to
fairly dilcharge it at him whilftheisataDiftance,
draw back from the Onfct. Becaufe I then turn
and cannot yet reach me with his Weapon, be- my defencelefs Parts to the Danger, and there is
caufe, fhould he get too near me, my Arms would great Hazard of tripping or tailing
j and befidcs
be of no ufe. And the fame holds more ftrongly when I have once quitted my Polhirc of Guard'
in relation to Bows, and Inftruments of that na- 'tis not very eafy to recover my felf Neither
ture, which fignify nothing at all, unlefs wegive doth it render myDefence blameable, if I chofeto
them full Room and Space to exert their Forcein. run the Hazard of fuch Accidents, rather th:m
Again, fuppofe a Man approach me with full De- omit fuch Bufincfs,
which was either a part ofmy
fign upon my Life, and is only arm'd with Piftols, Duty, or which however I had a Liberty of afting
:
or the like, whilft I am furnifh'd with a longer As liippofe, whilft I am going to any publick
Piece^ I am not oblig'd to wait till he comes with
in Piilol-fhot, but may prevent him with my Anns
before he can ufe his own. For this is what the
Laws call
'
to meet a Danger in time^ which is e-
fieetfi'd
much better^ than to revenge it after it hath
taken
Effe^.
The continuance of this Time for in-
nocent Defence is fo long as till the Aggreflbreither
is repuls'd, or hath retreated of his own accord,
whether repenting of the mifchievous Defign in
the very Moment that he was performing it, or
elfe becaufe he fees he is like to lofe his Aim
>
as
going to any publick
Place, about my Affairs, I kill a Man that fets
upon me in the Way, I am not the lels innocent,
becaufe if I had ftaid at home the Thing had not
happen'd. For the publick Security would be ill
guarded, and our Liberty would fland us in little
flead, if we might not make ufe of it in oppofing
thofe fudden Violences which others offer us, out
of pure Malice and wicked Defign.
There is no need of proving Ba!/amon's Di-
ftinftion
''
to be ridiculous
> ^ Jifan (fays he)
ivho kills another in his own Defence^ isfreefrom all
fuppofe his Sword is broke, or his Piece hath mifs'd Guilty
if
the other Perfon had
firjl given him a Mcr-
fire, or fhot befide us
>
fo that at prefent he can
hurt us no farther, and we have an Opportunity
of retiring into a Place of Safety. For the Re-
venge for paft Injuiy, and the Caution for future
Security, belong to the Care of the Magiftrate,
whom we are to addrefs on thofe Accounts
*.
Whoever, enjoying the Proteftion of a Civil Go-
vernment, fhall kill another beyond thefe Bounds
tal fVound., or the like
Mtfchiefy but
if
the Hurt
that ivasfirfi offered him be flight and cureable^ the
Slaughter
of
the
Ag^reffor is then
mjufi^ andhemufi
anf-juer for the FaSl.
Much more pleafant is their Nicety, who make
it a Queftion, Whether an Equality
of
Weapons be
necejfary to the rendering a Defence innocent .?
As if the
Aggreffors were fo generous, as conftantly to give
and Conditions, imder the Notion oi Self-defence^ Notice to the other Party of their Defign, and of
cannot be acquitted as entirely guiltlefs. Whence
we may perceive how unreafonable the Affertion
of old Baldus is, when he declares,
If
a Man
chance -to
fay
to me^ FII killyou where ever Ifindyou
from henceforward, Imay, without incurring any Pe-
nalty, take away his Lifeby way
of
Prevention, either
in the midfl of
his Threats, or whenever lean do it with
vioft Convenience. For though I be not oblig'd to
wait till he perfomis his Threats, yet in a Common-
wealth I ought to purfue other ways of Safety
than by killing him : Even when it appears from
the former Courfe of his Life that he is not back-
ward in making good fuch bold Relblutions
j
the Arms they purpos'd to make uie of
> that they
might have Leifure to furniih themfelves in like
manner for the Combat. Oi- if in thefe Ren-
counters we were to aft on our Defence by the
ftrift Rules of the common Sword Plays, and
Tryals of Skill, where the Champions and their
Weapons are nicely match'd and meafur'd for our
better Diverfion.
But it muft be obferv'd on this Head, that the
Plea of Self-defence fhall not cxcufe or indemnify
him, who being challeng'd to meet in the way of
Z),V(?/,dothbyro appearing put himielf into fuch a
Condition, that he muft either kill or be kill'd.
=
Vide /.
45.
/
4. D. ad L. Aquillam.
Can.
43
*
Mention'd by Sichard ad C. Cod.
- ..- ..viM.jv^i Lii*. 4_,i/Ht die, lYXLtiin tr.iTfl ejl OCCUTTCtt
^ado liaat
unicuiqifsne judice
fe
vindicare, (jf(. Leg. I.
>>
Ad Epiji. Bafil.
ad Amfhiloch.
The Words of the Codart, Melius enim
efl
occurrere in tempore, quam
foft
txltum vitidkare.
Cod. Lib.
3.
Tit. 27.
For
ip2
Of
the jut Defence
of
one's Self.
Book II.
For in the
EftimMlon of fuch a Faft, the Danger Capital Punifhments for Offences of this kind, fo
will not be confider'd,
fince the Laws forbad him they might farther give a Liberty to all honeft
to meet it> and therefore he will not only be guil- Women, to ufe x/rc2/// in their own Defence,
tv oi
Manjlaughter, but will ftand obnoxious to upon danger of lofing what 'tis impoffible for
thofe other Penalties
which are pai-ticularly or- them to recover, and for which no Reparation
dain'd againft the Cuftom of Duelling. can be made them. Amongil the Jews, as Mr.
'
X There is one Enquiry commonly madeflir- Seldcn
^
tells us, a Man was allow'd to kill ano-
ther on this Point, and that is, Whether it be ther, not only in his own Defence, but in the
lawful for a Man to kill another, who comes up- Defence of a third Perfon, if unjullly afHiulted,
on him not with a Defign to take away his Life, whether with regard to Life, or to Chaftiry of
but only to maim him
j
provided the Danger can- either kind
'. And thus the Sentence of C. Ma-
nor, be otl^n:^dfe
avoided?
And here, as to a Na- rius was highly applauded amongft the RomanSy
ttiral State we may fafely hold the affirmative Side when he not only abfolv'd, but crown'd the
of the Qu'cftion. For Nature hath infpir'd us Soldier who had kill'd his Nephew, ^fribune^
with fo tender a Care to preferve our Bodies or Colonel in the Army, for foliciting him to an
whole and entire, that we cannot but make ufe of unnatural Debauch''. St.JuguJline
^
hath a Say-
all Ways and Methods for that purpofej and the ing, that the Holinefs or Purity
of
the Body is m-
Lofs of one Member,
efpecially if it be of the z^er
lofl,
ivhilft
the Purity
of
the Mind remains^tho'
moil noble Kind, is reckon'd almoft equal to the the Bodyfuffer
Violence
^. But it follows no more
Lofs of Life itfclf Befides, Death is frequently from hence, that forcible Ravifhers are not to be
the Confequence offuch barbarous Treatment 5
and repell'd with Extremities, than that becaufe a good
1 have no Security but that the Villian will proceed Man is tranflated to eternal Happinefs by Death^
to greater Mifchief Lallly, as we have hereto- therefore he ought not to defend himfelf with
fore hinted, fuch an Attempt declares a Man my Violence againft a Villain who attempts his Life,
open Enemy, and confequently gives me a Li- 'Tis
-
obfen^able what
Lyfias
^
reports, that
ccnfe in infinitum of afting
againft him. the Attick Laws decreed a leverer Puniihment
Nor do the Laws, even in Civil Governments, againft him who perfunded a Womanto an unchall
feem to enf^ge the Subjects to fuch hard Conditi- Comphance, than againft him who compell'd her
ons as that they muft rather fuffer themfclves by mere Force. The Reafon we find fubjoin'd,
to be
maimed than ufe Extremities in repelling Becaufe {{x^i\\) a Man'who commits ainolcnt Rape is
the AlTailant : For fince fuch a degree of Pati- fuppos'dtobehatedbyivhom he abufes. Whereasthofe
ence furpafles the ordinary Strength and Conftan- inho by Flattery and Infinuations tempt Women to their
cy of Mankind, 'twould look very rigid to re- Dcfires, do by this Means gain a greater luterefi and
quire it, only in favour of a malicious Rogue. Authority with them than their oivn Husbands, and
But when fuch an Injuiy is once adtually receiv'd, confequently have the whole Family in their Powerand
the
Profecutionofthe
Malefador is to beleft en- Difpofal: befides the Inconvenience
of confounding
tirelv to the Magiftrate.
the Childrens Birth, and hindririg all Difliti^lion be-
XL The Defence of
C^^T?//)'
is in almoft all Na- tween thofe who came lawfully, and thofe who came
tions eftecm'd equal to the Defence of Life, and tinlawfuily into the World \
doth in the fame manner excufe the Slaughter of XIL 'Tis another fiunous Queftion, Whether
thofe who attemptit.
TheReafon ofthis Favour the Danger of receiving aBox on the Ear, or Come
is
grounded on the natural Confideration, that the fuch ignominious, though flight Injury, will ex-
Bonour of Women is their chief Treafure and Or- cufe the killing of a Man in our own Defence,
namcnt ; together with the Refpcft had to the And Grotius's Decifion
'
makes it not to be repug-
Weaknels of the Fair Sex, which 'twas conveni- nant to expletive
Juflice.
The Senie of which Ex-
ent fiiould be guarded by all poflible means fi-om preftion is this, that fince expletive Juftice is equal-
'
Violence and Abufc^
'
Even in Civil States, as ly violated by denying one that which he had a
the
Legiflators might very reafonably appoint perfect Right to poflefs, or by bringing fomewhat
DuinHil. Declam.
349.
You htive drawn n Virgin into as great an Injury, as War it
felf
could have offered.
^
L.
4. c.
j.
^
Lex Wifogoth, I. 3. tit. 3. c. 6. Conjlitut. Sicul. I. 1. /;/. 22.
''
Plutarch in Mario. Plato de LL. I.
9.
He that hath
debauched a young Perjon of
either Sex, fhall be hrufully kilPd, not only by the abufed Party, kit by the Father, Brothers, or
Children.
"
De CivitateDei,\. i.e. \i.
^
AA6.. Gratian. Cauf ^z.
f.
5.
c. i, 2, 3, 4.
Plautus Amphitr. A&.. '^.Sc.z.
Haut promeruit quamobrem vitio verteres ; mea vi fubafta ell facere : Tou can't lay to her Charge, what pe did upon my Cm-
puljion. Senec. Hippolit. v. 727.
.
Mens impudicamfacere, non cafus, filet . Not on Chance, but on tlie Will
Unchaftity depends. __^^
e
Orat. 1.
"
Liban. Declam. 2. It is a much greater Wickednefs to tempt and entice a Maid to be confenting to her own
Abufe,
than to injure her by ?nere Force. ' L.z.c. i ./.
10.
. XI.
The AfFront is fo much the greater, becaufe a Woman of Honour may be reduced to that hard NeceiTity, to raife
up, from her own Blood, a Child to an Enemy, Duties of
a Man and Citizen, Lib. i. Chap. 5. . 22. See what I have faid
upon that Place of this Author's Abridgment, and Mr. Thomaftus\ Jurifprud.
Dii'in. Lib. 2. \.
1
14.
Mr. Bayle, in his An-
ftver to the ^eftion of
a Provincial, lorn. 4. Chap. 28. />. 41
2. affirms. That if tliat Law of the Decalogue, Thoujhalt do n
Murder, doth not oblige a Woman, who breaks it to fave her Life or Chaftity, it follows, that the other Laws of the Deca-
logue include the fame Condition in obfei-ving them, provided it be no Damage to my Life or Honour
; and fo often as the
Obfervation ofany of thefe Articles of the Decalogue expofe us to any certain D.ingerof lofing our Life or Honour, we majr
excufe our felves from it, as well as from the Obfervation of this Precept,
Thoujhalt not Kill. To me the very Recitjl of fuch
an Argument is its own Confutation. And I fhould wonder that Mr. Bayle fhould fuffer himfelf to be blinded with fuch
weak Reafons, if I did not plainly fee, that he has efpoufed the falfe Notions of fuch as pervert the Moral Doftrincs of the
Gofpe!, by fuch Explications as are contrary to the Rules of good Senfe and Criticifm.
De Re Rubied.
Lib. i . Chap, i . J/im/s enim Oaogefimut admonet me, vt farcinas coUigam, antequam profici/car e vita.
3
Plin. I. 2. Epifl.
10. Parum
eft
providum fperare ex oliis, gmd tibi ipfe
non pnejles, i. e.
"
You are very improvident,
if
'=
you opcft that from others, which you will not do your fclf. This Faffagc does not make the leaft to our Author's
Purpofe.
D;uiger
CH A p. V.
Of
the
juft
Defence
of
one's
Self,
195
Danger as a Man throws himfelf into by his own Affiftance, when the Bufmefs
wemufl: neglect for
Default,
and from which he may deliver himfelf that good Office is of more
Confequence, than
if he
pleafes. Now in the Cafe before us, pro- the Thing we thus endeavour to fave or refcue
vided he draw off or forbear to treat me in this for another. And befides all this, it may veiy
injurious
Manner, the Danger to which he ex- fairly be queftion'd, whether a Pcrfon
who af-
pofes his Soul, ccafes as to the prcfent Matter, fiults us in a violent manner, ought to keep the
And doth not this Opinion allow greater Favour Title of a Neighbour, as the Word feems to be
and
Indulgence to Wickednefs, than to Goodnefs, meant in our Saviour's Command
'^.
whiUl it makes the former, as it were, facrcd La^lantius'^ h^ih cenfur'd T?^//)"
*
for defcribing
and
inviolable ? For according to fuch Rules, a Good Man to be one that doth good to as many as
the moft holy and virtuous Men would be al- poffiblc, and that hurts no Body,
unkfs proi'ok'd. O
ways
oblig'd to yield their Throats to Villains ivhat a moji excellent and
moft
true Sentence (fjiys
and Murderers, leil, by refifting, they fhould
''
the FiXthcr) hath he fpolPd by the addition
of
ti'uo
fend them immediately on their Road to Hell
=*.
Words! For what occafion had he to
fay, unlefs
That flying of our Saviour, in which he com- provok'd
">
If
a good Man may thus hurt another
mznds us to love our Neighbour as our fehes,Ma.tt. when provok'd, the very offering
that Hurt will
xxii. 3p.
feems not fo fitly to be interpreted of make him lofe his CharaBer and Name : It not being
the degree of Love, as of the fruth and Sincerity
;
lefs Evil to return an Injury, than at
fir
ft
to give it.
in as much as no Man difiembles or counterfeits Forivhencearife all the Contentions and the Combats
a Paffion towards himfelf And that Phrafc, As which we behold
amongft
Men, unlefs from this
Mif-
thy
felf,
looks like a proverbial Speech, importing carriage, that Impatience oppoftng Wickednefs, occa-
a fincere and hearty Kindnefs''. But fhould we
fons
fo many
Te-mpefts in the World? Whereas,
if
in
take the Expreflion in the higheft Senfc
,
it oppofingthe fame Wickednefs wefljouldmake
ufe of
Pa-
would fcarce follow, that fuppofing the Love of tience, than which there is no truer Virtue, andnone
our felves and of our Neighbour not capable (in more worthy
of
human Nature, we fioould as effeclu-
fome Inftance) of being anlwer'd both togette*, ally extinguifi the ill Defign, as
if
we were pouring
the former ought to yield to the latter '. Nor Water upon Fire. But indeed, as the Impatiency
are the Proofs which we find fometimes alledg'd of the injur'd Party is frequently the occafion of
from Exodus xxiii.
4, f.
and Deuteronomy xxii.
4.
unnecefiary Combats, which might with Conve-
fufficient to evince, that the Love of our Neigh- nience have been avoided
>
fo, on the other hand,
hour ought to take place before our own real Patience is not always infillible in the Cure of
Advantiige : For it cannot thence be gathcr'd. Malice and Villany. Nordoth the Virtue which,
that we are firll to help our Neighbour's Bcail under that Name, is fo highly recommended to
out of the Ditch, if our own be in the fame Con- Chriftians, equally oblige us to the putting up
ditiouj or that wc are oblig'd to give fuch an
all Injuries promifcuoufly, without Difference
"
Comp. Grotiia, L. i. c. 2. f. 8. &z c. 3. f.
3.
'
Vid. i Sam. xviii. 1,3.
"^
See Luke x.
29, iifr. where,
by the Term of Neighbour, wc are to underlknd every Man who hath need ofour Help, and whom we have opportunity of be-
nefiting.
"I
Inflitut. L. 6. c. 18.
* Ifas often as a Man finds himfelf in the fame Danger as another, he ought indifpenfibly to refolve to perifh to (avs him,
he is obliged to love his Neighbour better than himfelf Moreover, this Command of CHRIST is a general Maxim,
which can't be of ufe to determine a particular Cafe, andinveftcd with the Circumftances of all Particulars, fuch as this, when
a Man finds he can't at the fame time fatisfy the Love of himfelf and Neighbour ; for, all things clfe being equal, the Love of
a Man's Self ought to be preferred, as appears by St. PatiPs Words, 2 Cor. viii. 13. The Determination of that Cafe, in which
there is an Oppofition between the Love of a Man's Self and Sociablcnefs, depends upon other Principles, from which it may
be inferred. That as there are fome Cafes in which the Love of a Man's Self is to be preferred before every other Thing, (o
there arc other Cafes, when the Prefervation of another may be preferred before his own. This is taken out of the Apology
cf our Author, vi'\\\c)n\smth.c Eris Scandica, .32.
S
Prrtclarum Ulud
eft,
IS
fi
quarts, reSium quoque, fjf verum, ut eos, qui nobis carijjimi ejfe debcant, teque ac nofmet ipfus
amemus -, at ver'o plus
fieri
nullo faBofoteft ; ne optandum quidem
eft
inamieitia, ut me ille plus quam
fe,
ego ilium plus quam me.
Terturbatio vitre,
ft
ita
fit,
atque ofiiciorum omnium, confequatur, i. e.
"
Thus much indeed is brave, and right, and true, that
"
we fliould love thofe who ought to be moft dear to us, as well as our felves. But to lo\'e them better, is abfurd and impoffible.
"
'Twould be ridiculous for me to wi(h, that my Friend and I fhould each of us prefer the other's Perfon and Intereft to his
"
own; becaufe fuch a change of Hearts could not but be foUow'd with a Confufion of all Offices of Life." Cicero Tufc.
^teft.
/. 3. c. 29.
*
Tully''s'V/oris:^i:c, Eum virum bont/m
eJfe,
qui
profit quibuspojfit, mceat nemini,nifi laccffitus injuria. Our Author might
here have oppofcd to this Ccnfure of LaSlantius other Words of Cicero, which will fhevv, that that Orator believed, that a
good Man ought to fpare his greateft Enemies, when he can do it without Danger to his own Life. Jugulare civem, ne jure
quidem quifquam btnus vult. Mavtilt enim commemorare
fe,
cum
poffet perdere, peperciJJ'e, quam cum parcere potuerit, perdidijfe.
Hac in homines alienijfimos, denique inimicifftmos, viri bonifaciunt, (^ hominum exiftimationis Js" communis humanitatis cauja
:
ut
cumipfi nihil aheri fcientes incommodarint, nihil
ipfisjure incommodi cadere pojftt, Orat. pro Quintio, c. 16.
1
Lailantiui'% Words are, O quam fimplicem, veramquefintentiam duorum verborum adjeSione corrupit ! ^lid enim opus fue-
rat adjungere,
Nifi laceftitvs injuria ? . Nociturum ejje dixit bonum viruin,
fit
fuerit lacejfitus ; jam ex hoc
ipfo
uiri boni no-
iien amittat, neccjfe
eft,
ft
nocebit. Non minus enim mali
eft, refierre injuriam, quam inferre. Nam unde certamina inter homi-
$us, undepugnce, contentionefque nafcuntur,
nifi
quod improbitati
oppofita
impatientia, magnas Jcepe concitat tempeftates ? ^od
fi
patientiam, qua virtute nihil verius nihil homine dignius inveniri
poteft,
improbitati oppofueris, extinguttur protinus, tanquam
igni aquamfuperfiuderis.
*
This may be inferred from the Words of CHRIST, Matth. v.
39,
40. in which Patience is moft earneftly
recommended.
For that divine Teacher fays not.
If
any one willfiay,
wound, or j'mite you mortally, bear it patiently, but.
If
any one
jmite
you on the right Cheek, turn to him the other alfo, for a Blow on the Cheek is a fmall Injury in it felf, andeafy to be born.
More-
over, in theie Words there is a Proverbial ExprefTion, which imports thus much. That rather than revenge our
felves of
them that have done us any perfonal Wrong, we fhould fuffer our felves to receive fome new Injuries. Nor doth
JESUS CHRIST fay.
If
any Man will take away all your Goods, or the greateft part
of
them, do not
refift
the Spoiler,
mr oppofe his
Injuftice, neither by your own AB and Deed, nor by feeking ProteBion from the Magiftrate ; but, IJ
any Man fue
jou at the Law, and take away thy Coat, let him take thy Cloak
alfo, i. e. rather than engage thy felf in a Law-fuit for io
fmall a Matter, be ready to undergo a frefh Lofs. See Grotius, and Mr. Lc Clcrc on this Place.
'
The Heathens alfo acknow-
ledge, that we ought fometimes, though not always, to depart from fomething of our Right.
Sec Cicero De
Offic.
Lib. i.
Chap. 18.
\. - i-
'
C
c 2
and
ip(5 Of
the ]ujl Defence
of
one's
Self
Bo o k II.
and
Diftinftion. He that defends himfelf in a
lawful manner, doth not aft direcSlly for the
Hurt of another, but for his own Prefervation :
And he who repels a Wrong is not injurious, but
lie who offers it. 'Tis one thing to exercife an
unblameable Defence, and another thing to pro-
fecute art unmerciful Revenge. The latter may
be as great a Sin as the firlb offer of an Injury,
but the former can never fall under fo hardaCen-
fure.
But farther, thofe who maintain that in Cafes
of this Nature it is more commendable to be kill'
d
than to kill, add this Exception, Unlefs the Party
availed be a more tifeful Perfon than the AJfaihnt.
As if it were always poffiblefor me, under the Ap-
prehenfion of fo imminent Danger, to weigh my
Abilities nicely with thofe of the other Man, and
to determine, whether the World would have
more occafion for his Service than for mine
!
This is beyond Difpute, that he on whom the
Safety of many depends, and whofe Office or
Duty it is to keep off Violence from others, ought
not to refign his own Life for the fparing an un-
juft Invader
J
tho' he fhould be of fo mild a Dif-
polition as with P'lfo in 1'acitus ', to think it as
great a Mifery to kill another^ as to die himfelf. And
the Reafon is evident, bccaufe by throwing him-
felf away, he betray'd the Safety of fo many other
Perfons. This is the Cafe of thofe who accom-
pany Travellers by way of Guards
;
as likewife
of Princes, of Generals, and other Commanders,
whofe Deaths are ufually attended with fo wide
a Ruin, and to whom we may apply that Saying
of Lucan^ v. 685-.
Cum tot in hac anima populorum vita falufqae
Pendeat, (^ tantus caput hocfibi fecerit orbis^
Sievitia ejl loluiffe mori.
Since one dear Life cnfures and guards us all.
And with the World's great Head, the World
muft fall,
'Twere Cruelty to couit your Fate
*.
But it cannot be hence inferr'd, that fuppofing
a
Man to have the Lives of none, or of veiy fevsr
depending on him, fuch an one may not fairly
kill an AITailant, who is perhaps of more Service
to the Publick, or in whole Life the Interell of
more Perfons are concern'd. For at this rate, a
Man who is either unmarried, or without Chil-
dren, muft in no Cafe kill an Invader, who hath
a Family, for fear his Wife and Children fhould
be left Defolate and in Want. But if the Affe-
ftion and Concern for thefe Relations could not
hinder the injurious Party from attempting his
Villany, what Reafon hath the other Perlbn to
give his own Life for the Prevention of their
Misfortune and Trouble?
Plato
'
in his Syftem of Laws hath been
very nice and exact on this Point :
If
the
Life of
a Son, fays he, be attempted by his Parents, didever
any Laiv allov) him in fuch
a
Cafe to kill thofe -who
gave him Being, although in his own Defence ? So
far from this, that he is obliged and commanded to
fuffer
all Extremities, rather than to engage
info un-
natural a Deed. But
if
upon account
of
"Tumult, or
Sedition, or the like occafion, a Brother kills his Bro-
ther, to preferve himfelf from his Violence and
jif-
fault, he floall be equallyguiltlefs as
if
he hadflaughter'
d
an Enemy. As for the AdiA\i\on-x\C\'X\xk,IfaSlavg
in his own Defence kill afree Man, hefliallbe obnoxious
to the
fame Penalties as a Parricide, thiswasnotthe
Fault of the Lawgiver, but of the Age.
XV. From what hath been obferv'd on this
Head, it appears, that a Slaughter committed
within the juft Bounds of Self-defence, doth not
tamt the Author with any real Blcmifli or Guilt,
and confequcntly doth not render him obnoxious
to any Punifhment : and that it is not to be
rank'd amongll thofe Aftions, which, tho' they
are in themfelvcs fmful, yet human Laws favour
with Impunity, upon account of the violent and
almoll: unavoidable Tranfports of Paflion : As
when they allow the Husband to kill the Adul-
terer
'.
If therefore in any Places fome Pe-
nalty
Anith^it of WUx/inaWs Fnends'in ^/i/itus Curtius, L. 9. c. 6. What God can fecure to us a long Enjoyment
ofthis Light,
this Buhvark of
Micedon; what you
foof
ten, xithakindofGreedinefs, expofe yotir Perfon to certain Danger; not refieaing
how many Thoufands of
Lives you hazard in one ?
9 Tacitus^ Words are, Si nobis aut ferire hodie neceffe
eft,
aut quod aqui afudbonos miferum
eft,
occidcre. Hill. Lib. I.
^'hap. 29.
^od adjungitur omni tempore, id pertinebit., , . aut ad honeftatem aut ad incolumitatem aut ad commodita-
tem.AcfummaquidemneceftitudovidetureJfchoneftatis; huic proximo, incolumitatis ; tertia, ac levijftma, commoditatii :
qure cum his nuyiquam poterit duahus contendere. Hafce autem inter
fe fcepe necejfe
eft
comparari, ut quamquam
praftct honeflas
incohmitati, tamen utri potijfimum confulendum
fit,
deliberetur. i^/.z in re fieri
poterit, ut cum incolumitati
Ciinfuluerimus,
quodfitinprafentiddehoneftatedclibatum, virtute aliquando ^ induftrid recuperetur, incolumitatis ratio vide-
bitur habenda : cum autem id non poterit, hoiieftatis. Farther, we muft obfeive, that Neceffity wliich we mufl fuppofe always
happens
without his Fault who is reduced to it, begets a Conteft not only between Selt-lov; and Sociablenefs, but alfo be-
tween Self-love and Religion ; as alfo betvvcen the divers Duties of Self-love. The Conteft between Self-love and Sociable^
nefs happens, when the Perfons with whom we ought to have dealt otherwife, have no part in the Neceflity to
which we are reduced : For our Author hath fpoken in the foregoing Chapter of the Conteft produced by the Reafortof ano-
ther's Faft, whether m.ilicious, or not. See the Notes on the following P.'.ragraph.
*
Either in our Perlbns or Goods, as it appears from the following part of this Chapter.
2
the
Chap.
Vf.
Of
the Right and Privilege
of
Necejfuy, loy
the
Maccabees.
And their Judgment was then in- the Nature of Man, that the
Cafe of Necefjity is
deed
right
;
becaufe as the Cale ftood with them, not comprehended
under the
general
Terms of a
to eat that fort of Flefh was look'd on as an open Law. An Inllance of this our
Saviour
himfclf
Denial of the true Religion. Whereas, were hath been pleas'd to give us, in Dazid's
eating
they
under no fuch hard Circumilances, it was the Shew-hread
\
inthnating,
that the
Matter
no Sin for a Man to keep himfelf from llarving and the Reafon of the Law which forbad
that
by
feeding on this forbidden Meat, when no other Action in general, could not be fuppos'd to have
could be procur'd. Sometimes too by the Autho- any fuch rigorous Defign, as that a Man ought
rity of a Civil Sovereign, Men may receive fo rather to die with Hunger, than to touch the
fti-ift and rigorous Commands, that they muft ra- confecrated Food
-.
ther part with their Lives, than omit the Duty It is plain then, that as to pofitrje Lazvs this
enjoin'd them. But the Obligation of Pofithe Privilege of
Neceffity is admitted and allow'd :
Lazvs is not always preiiim'd to be fo harfh and But 'tis a Point much more difficult to determine'
fevere. For in as much as the Authors of thefe, whether the fime Favour can take place in
'
the
or of any other Rules and Conititutions in the Laws of Nature} that is, whether in necejfary
World, chiefly defign'd by them to promote the
Cafes we may fairly omit what is naturally corn-
Safety or Convenience of Mankind, we mayfup- manded, or perform what is naturally foibiddei?
pofe them, generally fpeaking, to have had before As for the firil QuelHon, it appears from the Na-
their Eyes the weak Condition of htMnan Nature
j
ture of affirraati-ve Precepts, that whenever tliey
and to have reflefled on the Impoffibility which oblige a Man to the aftual exerting of fuch a Per-
every Man lies under, not to avoid, and to drive formance as is enjoin'd, they at the fiime time
off, all things that aim at his Dellruftion. Upon fuppofe him to have Oppoitunity, Subjeci:, and
this account then^
'
liioft Laws, efpecially, thofe Power of afting: But now we rnay fairly judce
which we call Pofith-e^ are judg'd to except the thefe Conditions to be wanting, when I cannot
Cafes
of
Neceffiiy,
that is, not to oblige, when the do a thing without the Lofs of my Life. Since
Obfervance of them mull: be attended with fome to throw off the Love and Care of ourfelves is
Evil, deftruftive of our Nature, or exceeding the juftly rank'd amongft impoffible Attempts} or
ordinary Patience and Conilancy of human however amongft fuch as furpafs the common
Minds :
Unlefs when this very Cafe
is included Strength of Mens Souls. Therefore, unlefs it
plainly in the Injunction, either by exprefs men- cither be expreily and particularly
provided by
tion, or becaufe the Nature of the Bullnefs cuts the Law, or deducible from the Quality of the
off all Exception and Referve. Hence it is clear, Bufinefs to be undertaken, that I mull rather lay
that no fuch Power ought to be attributed to A'l?- down my Life than omit the Duty, all affirma-
ccJJIty,
as that it iTiould give us the Privilege ofdi- tive Edifts of Nature may be underftood to ex-
recliy
violating a Law, or of committing a Siuj cept the Cafe of extreme Neceffity: Efpecially
but we only prefumefrom the favourable Intenti- when a Man hath not fallen under iuch Neceffity
onof
Legillators, and from the Confideration of through his own Negled and DeEtult. Thus I
2 Se&Mdtt.xn. 4.
Add. Cafiubon Exercitat. ad Baron. \. n.
9,
.
II. Otherwife, as Mr. 77^(;r;7/?; obfcrves, the publick Good redounds from tKe Good of private Perfons ; and for the
moft part, the Prefervation of a private Perfon is more advantageous to the State, than the Obfervation of any human Law.
Inftit. Jurifpr.Div. Lib. 2. Chap. 2. .131.
* We mull fay the fame tiling of Injunflions to keep Days of Fetlival, to which our Author's Words refer, Necejjitasferiis
caret, oMt of Ballad, de Re Ruftic. Lib.\. Chip.d. Neceffity makes no Holidays.
3 Thefe Principles are moft exaft, and proper to decide all Queftions which Can be propofed in this Matter ; they are bor-
rowed from 27/i.w's Obferv. CXLI. and pnrtly ivorti. Thomajius'i
Inftit. Jurifpr. Dhin. Lib. 2. Chap. 2. . 130, is'c. For we
muft diftinguifh between the Laws which concern God, and thofe that relate to Men. As to the firft of thefe, we may lay down
thefe two Rules ; i . That always when in doing or not doing a certain Aftion, we fhew direftly, or indireftly, fome Contempt
of the Divine Majefty
;
the Law which forbids or orders this Aftion otherwife, admits of no Exception in Cafes of Necetfity
5
for in this laft Cafe, the Nature of the Thing itfelf makes it evident, that no Man ought to preferve his own Life by any thiiig
whereby G o d is dilhonoured. 2. But if in doing, or not doing a certain Aftion, we do not directly, or indireftly, ftiew
any Contempt of the divine Majefty, the Law which forbids, or orders that Aftion otherwife, does not indifpenfibly oblige,
in a Cafe of extreme Neceffity
;
for then the Glory of G o d not fuftering any Affront, his infinite Goodnefs will not .dlow u$
to prefume, that he will not oblige us to expofe our Lives needledy, or our Goods. So that when we cannot commit any Aftion
poftcively by the Law of Nature, without ihewing at leaft indirectly Ibme Contempt of the Supreme Legiflator, thefe fort of
negative Laws admit of no Exception in the Cafe of Neceiljty ; and fo much the more, if we do not find ourfelves reduced to
this Dilemma, either to die, or break fome negative Maxim of the natural Law, which thro' the Violence of him that propofes
it, either formally, or by Interpretation, may make us contemn the Authority of the Supreme Legiflator. Wherefore we muft
refolve rather to die, than lie (tor Example) with our Mother, or flay a Perfon whom we know to be innocent. See what we
have laid upon Lib. i .
Chap.
5. .9. Note 2. But we may, to avoid a great Evil, with which we are threatned by an uniuft
Aggreffor, promife fomething, even with an Oath, without Intention of fwearing, or contracting by fuch a forced Aft, any
valid Obligation ; for in that Cafe 'tis neither a true Oath nor Promife; and he that forces us unjuftly, does it only becaufe he
thmks we have a greater Refpeft to the Deity, otherwife he would not value it ; fo far is he from engaging us to violate our
Duty, that he would be much troubled that we fhould. See what is faid Lib. 4. Ci". 2. . 8. As for Iuch Aftions as are for-
bidden by fome pofuive divine Law, as they are otherwife indifferent in themfelves, the Exception of the Cafe of Neceffity hath
place, or not, in thatrefpeft, according as in doing of them we fhew, or not, fome Contempt of the divine Majefty, which,
muft be judged of by Circumftances. The firft is feen in the Example oi David, and the otlier in the fcven Brethren fpoken
of in the Hiftory of the Maccabees, upon which cmr Author reafons well. As to the natural affirmative Laws, which con-
cern the Divinity, Mr. Titins believes with Mr. Jhomafius, that they do not indifpenfibly oblige to an outward pofitive Wor-
ftiip, whofe Omiffion may be a fign of fuch a Contempt. See what is faid upon Chaf. IV. of this Book, . 3.
Note 2. But
altho' fome Afts of outward Worfhip are exprefly commanded by fome pofitive Law, we are not ob'iged to praftife them in the
Cafe of extreme Neceffity, unlefs the Omiffion pafl'es for an open, or tacit Abjuration of the Religion which we elleem true,
as in the Cafe oi Daniel, Chap. vi. ver. 10. or when it fhews a Contempt ofthe Divinity direftly or indireftly, which does not
commonly happen.
I flull fpeak in Note i- of the Privileges of Neceffity, with relation to the Du^es which concern
Men themfelves.
D
d z atn
204- Of
the Right and Privilege
of
Necejfity.
Book II.
am tix.
not
bound to furnifTi an hungiy Pcrfon with violated a Law, unlefs the Ad can be rightly /2-
Bread
when I want it for my own Sulknance pitted to him. Now an Aft may proceed tiom a
^
'
o'r to help a Man that is drowning, when Man two ways, either as he is the Prmcipal^oras
I
cannot lave him
without lofing myfelf. Se-
he is the Inftriimental Caufe of
it. And this In-
w^f^'s
Refolution is good in both Cafes, I imll
7?r?^^^/C^a/^ is again of two kinds, cither as it
give (fays he)
''
to thofe that are in needs but
fo
as
exercifes no Motion butwhatisimprefs'don it by
not to put my felf
in the fame
needy Condition : I the principal Caufe,
and againll its own natural
iviUfuccour thofe
who are ready to periflo;
but
fo
Inclination, if it have any; or, as it applies itielf
as riot to expo'fe my felf
to certain Ruin.
upon its own proper and internal Impulle to iuch
As for the ncaiive Precepts, or the Prohibiti- a Performance, tho' the Influence and the Di-
ons of natural Laws, this in the firft place is moll reftion of the firfl: Caufe do hkewife aflill in the
certain, that no Neccffity
can make it allowable for Operation. If then a Man be, according to this
us to undertake an Adlion direaiy difhonouring latter way, Inftrumental
in an Aft, the At may
Almie;hty God, as fuppofe to bk^fpheme or to not only be imputed to the principal Caule, but alio
deny'hi^, and renounce his Worlhip and Service, to him, as his true and proper Work. But il he
tho' for the
avoiding of prefent Death. For in as be inftrumental
or concurrent only in the formed
much as Go D is able to inflia on a Man a much manner, the Aft fhall not be imputed to him, but
more arievous Evil than natural Death can be only to tht principal Agent. What farther Con-
imac^in'd to be, our Reafon doth with good Pro- ditions are requiiite to this Cafe Ihall hereafter
babflity afllire us, that he will requite us with a be
'
more largely explam'd.
much more noble Happinefs, when we pait with
our Lives for his Sake: On the other hand, it III. Thus much bemg premifed, wemaygoon
would be abfurd, as well as impious, tofinagainft
todifcufs the particular Cafes and Qiieftions ufii-
the Divine Honour for the efcaping of a leffer ally difputed on this Head In reference then to
Evil, than what he incurs by fuch an Offence ^ a Man's felf, tho' otherwife he hath no fuch Right
Yet the unhappy Cafe of thofe who yield to the and Power over his Members, as to dcli:roy,to di-
Force and Violence ofTortures, is not altogether ifort, or to maim them at his Pleafure
j
yet it
unworthy of our Pity.
f^^H be lawful for him to cut off a Limb, that is
Concerning thofe Laws which contain themu- either poffefs'd by an incurable Gangrene, or that
tual Duties
'
of Men, it may be firll obferv'd, is rendred ufelefs by a Wound
;
in the former
that feme of thefe natural Precepts do prefuppofe Cafe ', to keep the whole Body from periling,
fome Human Deed or Inftitution ; which, as may or the found Parts from being infefted, and in the
be (^ather'd from its End ;md Purport, not extend- latter, that the ule ot the other Members be not
ing'^to the Cafe of extreme Neceffity, the fame hindred by the Clog of an unferviceable and cum-
Exception may be fairly underftood in the Law. berfome Appendage. Whether the extremeft
And then we may remark faither, that a Man Neceffity doth firthergive a Man any Right over
cannot be faid by his own Aft immediately toh^ivc his own Life, that is, whether for the efcaping a
a
See 2 Corinth, viii. 13.
^
De Bmf.
L. 2. c. I
J.
C<?r/ji//zV. in Antholog.
'H pi
^v-iiUi
Good Men, whatever Scenesof Fate they fee.
'KvS'^.m ivnC'm Sm'Kahi ydexi.
Shall ne'er be Lofers by their Piety.
4 This Paffit^e is quoted Chat. III.
i
18. Note 2. of this Book.
^ ^ r -j
5
Firft, M often as in doing any Adion otherwife forbidden, with relation to another, or ourfelves, we find a fure way to avoid
fome great Danger, without falling into fome greater Evil, or equal to that from which we keep ourfelves, the Law permits an
Exception of the Cafe of Neceffity. 2. But if the Performance of the like Aftion is no furer way of efcapmg the Danger, and
the Evil which may redound from it, appears greater, or equal, the Law does not allow the E.xception of a Cafe of Neceffity.
By fure means we underftand thofe which have a natural and neceffiary Power to remove the Danger wherewith we are threat-
ned, and not a pure arbitrary Force, which depends upon the Fanfy of him who has brought himfelf mto that Neceffity
j
for
in the firft Cafe 'tis divine Providence which affords Means to deliver out of Danger, whereas in the other tis the Malice ot
Man, and fuch a Malice as intends either diredlv, or indirectly, to oblige us to dilobey the M.^giilrate We may add, that
the Certainty of the Means of which we are fpcaking, is not an abfolute and infallible Certainty, and fuch as ought to be under-
ftood in a negative Senfe, rather than a pofitive, /. e. in fuch fort, that without fuch a Means we are loft, and are not fure we
ftiall efcape if we put them in praftice. A Man, for E.xample, who is purfued, may be at length convifted, but to make his
Efcape, runs in hafte upon a Cripple who ftands in his Way, this is no hindrance but that he might makx his W.iy, altho he
did fome great Damage to him who was not .able to retire, for Nature allows every one to maintain his Ground as long as he
can. As for the great Iniury which may arife from that to which Neceffity leads us, it ought alfo to be meafured phyfically,
for we neither can, nor ought to compare the moral Evil which m.ay be on the one fide, or the other, bccaufe that's the Thing
in queftion. Provided therefore that there be no Fault in him who is in danger, which muft always be fuppofed here, the Cir-
cumftances obferved are fufficient to enable us to make a probable Conjefture of the Will of G o d
;
for the Law of Nature
without Contradiftion tends to the Happinefs of Mankind, and when we can be probably delivered from a great Evil by ex-
pofing ourfelves to a lefl"er, we have Reafon to choofe the latter. But if the Evil which we embrace, is equalto that from
which we fly, and we cannot otherwife promife ourfelves any Certainty of avoiding the Danger by that means, in this Cafe
nothing can difpenfe with our Obedience. See Mr. f/Zm's Obferv. CXLI. As to the Affirmative Precepts of the Law of Na-
ture, which refer to another, our Author has treated of them well enough.
6
^See Lib. VIIL Chap, i . .6. and what I fhall fay upon it contrary to our Author's Notions.
%. in. ! We may in this place apply the Principles laid down in Note 4.
of the precedent
.
Indeed the lofs of a Member
is without Contradidtion a lefler Evil than the Lofs of Life, and is alfo a fure Means to keep ourfelves from Danger. The f.me
Thing hath place, as any one may fee, in the Cafes where to fave a more noble and neceffary Member, we are contented to be
deprived of one lefs confiderable and ufeful. But we ought to obferve, i . That it is fufficient here to fuppofe a bare Permiflion,
there being but few Men who have Courage fufficient to bear fuch a painful Operation as the cuttmg oft a Member dange-
roufty aff-efted is, and therefore had rather die of theii- Wounds in eafe. 2. That Neceffity to which we were reduced ought
not to be underftood in its utmoft rigor. So that when we have in fome manner contributed by our own Fault to put
ourfelves into fuch an Extremity, wc may not lawfully, to retrieve our Affairs, rclolvc upon a thing otherwife unlawful,
bee
Mr. TitiursOiferv.QXUl.
,
Chap.
VI.
Gf
the Right and Frivikge
of Necejfny,
205
Death of Ignominy or of Torture, he may lay
hold on more gentle Means of leaving the World,
we have
enquir'd and ftated in the preceding
Chapter. We may proceed therefore to examine
what Right neceffity can give us over others. To
feed on Man's Flcfli in the defperate Extremity of
Famine, when no other Suilenance can be pro-
cur'd, is a lamentable, indeed, but not a finful
Expedient. But as for thofe Inftances, when in
diftrels and want of all Provilions, Men have
been kill'd to preferve their Fellows, either by
Compulfion and againft their Confent, or elfe by
the Determination of Lot, the Decifion of them
is a Point of fome Difficulty and Uncertainty.
Inafmuch as whatever the Law againft Murther
fuggcfts on one fide, the fharpnefs of Hunger
pleads as loud on the other, and the Belly, that
Advocate without Ears: Efpecially, confidering
that unlefs this unhappy Means was made ufe of,
the whole Company mull have inevitably perifh'd.
This is one of thofe Cafes in which a Man ought
to die rather than commit the Faft, it being di-
reftly contrary to the Laws both of God and
Nature
*''.
To this purpofe we have a Stoiy
of feven EngliJInnen, who being tofs'd in the
main Ocean without Meat or Drink, kill'd one
of their Number, on whom the Lot fell, and who
had the Courage not to be diffatisfied, affiiaging,
in fome meafure with his Body, their intolerable
and almoft famifh'd Condition : Whom when
they at laft came to fhore, the Judges abfolv'd of
the Crime of Murther. Zlegkr upon Grotius\
giving this Relation, is of opinion, That tbe Men
iverc all guilty
of
a great Sin^
for confpiring againfl
the Life
of
one in the Company^ and
(
if
it fJwuld
fo
happen ) every one againfl his own
j
thus regarding
bodily Perilmore than the Danger
of
their Souls : T^oat
no one ought to have fet
fo
little a Value on his Life^
as to lofe it forfatisfying the Hunger
of
the re[I : And
that the refl ought not to have been
fo
cruel to their
Fclloiv^ in compliment to their own Stomachs. But to
this it might be anfv^'cr'd, that 'tis too harfh and
rigorous a Ccnfure, to fiy that thofe Men confpire
againft the Life of
another^ who agree to take the
Chance of dying one of them, for preferving the
Lives of all thercll". And confequently they could
put their Souls into no danger by this unfortunate
Refolution. Nor is the Charge of undervaluing
their Lives any better grounded
>
fince he only
can fall under this Imputation, who throws him-
fclf away without Neceility. Nor, in the third
Lib. 4. c. 4.
^
See Ephef. iv. 28.
5. V.
'
^ut qui dwitits foli incubuere repertis.
fuch Alms as was proper for him, could force hini
to it by an Aftion at Law.
'Tis no wonder
therefore, that they Ihould forbid
their Poor on
any account to feize on the Goods of others en-
joining them to take only
what private
Perfons,
or the publick Officers, or Stewards of Alms
fhould give them on their Petition.
Whence the
fteahng of what was another's, tho' upon extreme
Ncceffity, pafs'd in that State for Theft or Ra-
pine. But now fuppofing under another Govern-
ment the like goodProvifion is not made for Per-
fons in want, fuppofing likewife that the cove-
tous Temper of Men of Subftance cannot be pre-
vail'd on to give relief^ and that the needy Crea-
ture is not able, either by his Work or Service,
or by making Sale of any thing that he pofielTcs,
to affift his prefent NecelTity, mull: he therefore
perifh with Famine? Or can any human Inftitu-
tion bind me with fuch a force, that in cafe ano-
ther Man neglefts his Duty towards me, I muft
rather die, than recede a little from the ordinary
and the regular way of afting ? We conceive
therefore, that fuch a Perfon doth not contrad:
the Guilt of Theft, who happening, not through
his own Fault, to be in extreme Want, either of
neceflary Food, or of Cloaths to prcferve him
from the Violence of Weather
%
and cannot
obtain them from the voluntary Gift of the
Rich, either by urgent Intreaties, or by offering
fomewhat equivalent in Price, or by engaging to
work it out, fhall either forcibly or privily relieve
himfelf out of their Abundance
j efpecially if
he do it with full Intention to pay the Value
of them, whenever his better Fortune gives him
AbiUty. Some Men deny that fuch a Cafe of
Necejjity, as we fpeak of, can poffibly happen.
But what if a Man fhould wander in a Foreign
Land, unknown, fricndlefs, and in want, fpoil'd
of all he had by Shipwreck, 6r by Robbers, or
having loft by fome Cafualty whatever he was
worth in his ownCountry; ffiould none be found
willing either to relieve his Diftrefs, or to hire
his Service, and fhould they rather (as it com-
monly happens ) feeing him in a good Garb, fufpedb
him to beg without Reafon, muft the poorCrea^
ture ftarvc
'
in this mifcrable Condition ? It may
be objected indeed, that in Proverbs vi.
30, 31.
he is call'd a Thief, and pronoimced obnoxious
to the Penalty of Theft, who fteals only to fa-
tisfy his Hunger. But whoever clofely views and
confiders that Text, will find that the Thief there
cenfur'd is neither in fuch extreme Necejjity, as
we are now fuppofing, nor feems to have fallen
into his needy Condition meerly by ill For-
tune, without his own Idlenefs or Default : For
the Context implies, that he had a Houfe and
]^ec partem fofuere Juis, 8cc. Virg. Mn.VI. 610, bti.
* If in a Cafe of Neceffity a Man may innocently do fome Wrong to another in his Perfon, fo far as to put him in danger
of his Life to fave his own, by a much ftronger Reafon will he be permitted, in like Cafes, to take away or deftroy the Goods
of another,
which are of much lefs Value than Life and Members. ThmaJ. InJlit. Jurijprud. Dizi. Lib. 2. Chap. 2. . i68.
Note 1. and Titimh Obferv. CXLVIL
' Mr. Wi?rt/j has alledged an Example here, which is this; when the Magiftrate, in a great Scarcity of Provifions, con-
fpires with thofe that will not open their Granaries, that they may fell their Corn the dearer, or at leaft he neglefls to hinder
Monopolies,
and punifh the bwbargus Cruelty of thgfe, who to enrich themfelvss, care not how nwny Men they bring to
Beggary.
Goods
Of
the Right and Privilege
of
Nceffity.
Bo o k II.
208
Goods
fufficient to make
"^
fevenfold Reftitution
;
which he might have
either fold or pawn'd
j
a
Chapman or Creditor being eafily to be met with
in Times of Plenty and Peace. For we have no
Grounds to think,
that the Faft there mention'd
is fuppos'd to be
committed,
either in the Time
of War, or upon account
of the extraordinary-
Price of Provifions.
Befides, this Thief was
faulty on another
Account :
For if he had not
wherewithal to maintain
himfelf, the Laws oblig'd
him to fell himfelf for a Slave ^
VI. GrotIlis
'
propoles another way of folving
Neceffity ? Yet this Grotius doth by no means al-
low. Again, Grotius requires Refiitution
to. be
made in thefe Cafes : But I am oblig'd to no fuch
Duty, when I take a Thing by virtue of my
Right. Befides, he forgot to mention how dif-
ferent the Cafe is, when a Man falls under fuch
Ncceffity by his own Sloth or Negligence, and
when it comes on him without his Fault. Which
Diftinftion being omitted, a l^ght feems to be
given to idle Knaves, whofe Vices have brought
them into want, to feize forcibly for their own
Ufe the Fitiits of other Mens honelT: Labours
j
and fo continuing their Poverty and their Lazi-
the Difficulty under our prefent Debate : He fiys,
nefs together, to put a Neceffity on induitrious
that the firft Introducers of
dirtinaPro/T/Vz/Vmiuft
Perfons of feeding luch ufelels Bellies tor no-
thing. But all wife Men, as they allow fuch as
are innocently miferable to deleiTe Afllllance
and Reliefj fo they advife us to pack off" mendi-
cant Drones and Lubbards, with the old Anfwer
that the Ant gave the Grailiopper in the Fable'.
Since then it is lawful for every Proprietor to di-
ftinguifh between fuch as are indigent out of
Misfortune, and fuch as are reduc'd to the flime
Condition by their own Demerit and Negleftj
'tis plain, that he has fuch a Right over his own
Goods, as fhall in fome meafure prevail even a-
gainft a Perfon in extreme Neceffity : So fir at
leaft as that he fhall have the Privilege ofjudging,
whether the Man be anObjeft worthy of his Re-
lief, or not
j
that it may be in his Power to oblige
and win a neceffiitous Perfon by his feafonable
Succours: For nothing raifes theValueof aKind-
nefs fo much as its being done for the Removal of
an extreme Diflrefs. But all this Merit and Obli-
gation is cut off, when we give another only
what he might otherwife, as his own Right and
Due, violently take from us.
We think therefore, that this Point of Difpute
will be more clearly determin'd by the Principles
and the Method which we have laid down ; that
is, by faying, in fhort, that the wealthy Perfon
is bound to relieve him who innocently wants,
by an imperfeft Obligation} to the performing
cf which thoueh reeularly no Man oucrht to be
Man a Ri^ht of feizing on the Goods of others,
compell'd by Violence, yet the Force of extreme
be underftood to have done it with this Exception
and Limitation, that the Right of this Propriety
excluding others fi'om the LUe of every Man's
proper Goods ought then to expire and to give
place, when another
cannot poffibly
without
making ufe of them,
be furtain'd or preferv'd :
And confequently, that in fuch a Cafe of Neceffity
a Thing poffiefs'd in peculiar, when another Man's
Life cannot be fav'd without it, is turn'd again
into common. Or, what amounts to the fame
Purpofe, that when Men
originally inftituted fe-
parate Proprieties, they agreed by mutual Cove-
nant, to forbear ufing the particulai- Goods of
each other, any farther than the Owner fhould
give leave: Yet fo as to make it allowable in
extreme Neceffity, for a Man to feize on any
Thing abfolutely'requifite
for his Prefen-ation, as
if it Hill lay in its
primitive Indifference and
Community. For fince in -written Latvs, that
Interpretation is to be
follow'd which recedes
the leaft from natural Equity, he prefumes this
will hold more ftrongly in regard to Cuftoms,
which obtain only by tacit
Agreement. And
furcly it mull: be in the
highell Degree equi-
table, that a Man be
pcniutted to fave his
Life, by ufing any thing at hand, when all other
Means fail him.
But this Expofition lies open to feveral Ex-
ceptions and Difficulties : For if Neceffity
sr'cs a
Neceffity
is fo great, as to make thele Things re-
coverable by the fiime Means as thofe which are
truly and rightfully due : That is, by making
complaint
-
to the Magiib-ate, or when the
as if they lay in common, what hinders but
that, if he have fufficient Strength,
' he may
take them from the Owners, when they them-
felvcs are at the fame time pinch'd with the like
'
See Lepit xxv. 39.
SeUo? L. 6. c. 7. Nothing can be drawn to the contr.iry from Prov. xxx.
9.
Other Authors give
this Example of extreme Neceffity : ^ Man being in an unknown Country, is attacked by an unjiift AJailant, and cannot other-
wife fave himfelf than by fteedy Flight. He finds
ready at hand a Horfe belonging to fome Perfon of
the Country, but zvhich he
fees no means ofrefloring, as -jjell becaufe he is ignorant
of
the Owner, as bccaufe he may be oblig'd to ndcfarto efeape the Banger.
bL2czf. 6
*
And thus in P/.v/^jn-ii' (Apophthegm
)
when a Captam of Co.iftmg-robbers made an
Inroad into the Territories of i<jr^^mn, and being taken, urg'd in his own Defence, That he was neither able
of himfelf to
fay
his Companions, nor could prevail with thofe that had Money to fupply
htm; and therefore he ventured to take it by Force.
C/fmf/;f/caird this Proceeding, m^V7-^'^ OTi'eu,
A very compendious mckednef. M^.Pandulf Collenut. ret. Neapoht.
'
4"
Grotius in his Notes upon this Text affirms that it ought to be render'd. If he be taken in the Faa, he fhall reftore feven-
fold.
i. e. He (hall not be oblig'd to any Thing but Reftitution, according to the Law prefcribed, which fuppofes always, that
the Thief hath fomething, fince he muft reftore out of it what he has taken. See Exod. xxii.
. VI.
'
I do not perceive how this can follow from Grotius's. Hypothefis. It is certain, that when a Proprietor can't fpare
the Bread, for Example, or Corn, which he huh for his prefent Ufe himfelf, 'tis not permitted to any other, tho' he be ia
ever fo great Neceffity, to take them away from him by Force. But yet the Maxim is no !efs true, which fuppofes, that in
thefc laft Cafes all Things become common, ps they were at firft; for Community does not at all hinder, but that all which
every one is poflelTed of for his own Ufe, Ihould not belong to him only who is in nftual Poffeffion of it, altho' the Property
h his, and we can't take any thing from lum but when he hath an Overplus, and we can't otherwiie find any Means to fupply
our Wants. See what is faid L:L 4. Chap.i^. Notez. S., that our Author has done well to depend upon other Reaibns, which
he alledgcs afterward, and v/hich are fufficient for his Purpofe.
^
This is the only Refuge that they have, v/ho believe that the greateft Neceffity cannot authorize any Man to take another
Man's Goods of himfelf; but as Mr. Thomafius has obferv'd, Inftit.Jurifp.
Div. Lib. 2. Chap. 2. ^. 171. they acknowledge
tacitly, that he thot is reduced to that troublefome Neceffity, has a full Right to require what he wants
; for only thofe Things
which are due by virtue of a compleat Obligation, can be the Subjea of the Magiftrate's Decifion.
Urgency
Chap. Vf.
Of
the Right and Privilege
of
NeceJ/ity. 200
Urgency of the Diftrefs cannot allow time for
fuch an Expedient, than by feizing what is ready
at hand, either in a fecret or in an open manner.
Now the chief reafon why we affirm thofe things
which proceed purely from the Virtue oi Huma-
nity, to be owing only by an imperfcft Right, is
that Men may be allow'd both an occafion of
ihewing their voluntary
Propenfion to the Dif-
charge of their Duty, and hkewife of endearing
others to them by their voluntary Benefits. But
now if a Man lliould defpife thefe Confiderations,
muft a poor neceflitous Creature be famifh'd be-
caufe he cannot prevail on the unmerciful Mifer?
Certainly fuch an inflexible Churl ought rather
to be depriv'd of his Gift and of his Merit toge-
ther; fince he had not Heart enough to venture
on an Aft of common Humanity.
From what has been hitherto offer'd, it is eafy
to gather the Reafonablenefs of thofe Exceptions
which Grotius fubjoins to his and our main AfTer-
tion. For iince nothing but inevitable NecefTity
can juftify the taking by force what is owing only
upon an mperfeSl Obligation, in the firft place it is
clear, that all fairer Couifes are firft to be tried,
as complaining to the Magiftrate, begging and
intreating, promifing
Reftitution, if we are ever
able, or offering to difcharge the Debt by equi-
valent Labour and Service. Secondly. This Li-
cenfe can by no means take place, when the
Owner of the Thing which we want, lies under
as great a Neceflity as we ourfelves : On the con-
trary, we fuppofe the Owner to abound. This
Caution or Exception may be extended farther,
and we may fay, that a diftrefs'd Perfon cannot
fairly take a thing from the Owner without his
Confent, if it be only manifeft, that upon the
Lofs of that thing the Owner will hereafter fall
into the like indigent Condition. For in thefe
Cafes 'tis ^t Charity
flouldbegin at home. That Rule
of the Civil Law which Grotius applies to the
prefent Bufinefs, that when the Confiderations on both
fides are equal^tbe
Cafe
uf
the
prefent Occupant
'
is to
be preferred: doth not feem fo exaftly to hit the
Purpofe. For that Maxim only imports, that
Judgment ought to be given for the
Poffefor,
whilft the Claimant^ Title and his are alike dif-
putable. But in the Matter before uSjthePoffef-
for's Right and Title are granted, and the only
Queftion is, whether I am oblig'd by the bare
Law of Humanity, to perilli myfelf for the fake
of preferving another.?
which is a Paradox that
no Man will pretend to maintam. The other
Sentence which Grotius applies out of Curtius
\
IS much more proper
and more
agi-eeable to the.
Pomt
i
Melior
eft caufa fuum non
tradentis, qtidm
pofcentis alientm.
He who
refufes to deliver what
is his own, has a fairer Cauje than he who demands
what is another Aran's.
'Thirdly, We lay it down as an indifpenfiblc
Condition, that Reftitution is to be made if pof-
fible; efpecially if the Thing taken were of great
Value, and fuch as the Owner could not well
part with without fome Confideration.
But if
the Thing were fmall and inconfiderablc, and
the Lofs fo light, that the Owner's Fortune could
not feel it, 'twill be fufficient,
when opportunity
ferves, to ftiew that we fhould not have been
wanting in Gratitude, if his Greedincfs would
have given us leave to be obliged to him. As
for Grotius's requiring
*
Reftitution, it feems not
to fuit with his Hypothefis. For if upon a
Cafe ofNecefTity the Right of Primitive Commu-
nion returns, fo as to give a Man a juft Title to
the Goods of others, then Reftitution can on no
account be defir'd or demanded. But fince this
is neceflarily to be made, it appears that the Right
of the Owner doth not expire thro' the Necef-
fity of the Petitioner; but that he ought volun-
tarily to have given Relief, either gratis, or upon
receipt of the Price of the Thing, or any other
Compenfation. Which Duty when he ncglefts
to perform, then indeed the Neceflity of the di-
ftrefs'd Perfon gives him a Right of taking the
Thing by Force, but ftill with the fame Burden,
or under the fame Condition which the Owner
might have impos'd on him; that is, either to re-
fund the Value hereafter, or at leaft to make a
grateful Acknowledgment of the Benefit.
Vn. If we look on other Authors, we fhall
find them much divided about this difficult Point.
The fourth Chapter of the fifth Book of the
Decretals'^, enjoining Penance to Thieves
who
fteal
out
of Necejfity, is by the Glofs expounded oflittle
and indifferent Necejfity, not of fuch as is extreme
and infupportable. Covarruvias
"
delivers his
Opinion almoft to the fame purpofe as Grotius :
The Reafon (fays he) why a Man in extreme
Necef-
fity
may, without incurring the Guilt
of Theft or Ra-
pine, forcibly take the Goods
of
others
for his
prefent
Relief, is, becaufe this Condition renders all things com-
mon. For it is the Ordinance and
Inftitution
ofNature
itfelf, that inferior thingsfhould be
defgn'dand direSled
toferve the Neccffities
of
Men. Wherefore the
Divifton
of
Goods afterwards introduced
into the World, doth not
derogate
from that Precept
of
natural
Reafori, which
"
L.7. C.I. '
Cap. Si quis. Lib.
5. tit. 18. Defurtis. 2. f. I. n.
3.
3 But this is only an Accommodation which Grotius makes of a Maxim of the Roman Law, In pari causa po/re/Tor potior he-
ten debet. D.gt^. Uh.
so.
Tm.ij. De diverfs Regulis
Juris, htg. m^.
^"
"
^
\
Mr.r^^^r
M/i'^/^^(inhis Commentary, Tom. 2. p. 88.) affirms, that Cmwpretends tofpeakof the Rizht of Ufaze,
and not of the Right
of Property, which, according to him, arc two diftinft things ; fo that a Man rtiay have a Right to ufe
a
1
hmg, which tor all that may properly belong to another. But this doth not take off the Difficulty ; for the Queftion is to
know upon what the ;?.|A/./C/y;,^, is founded? Grotius delivers himfelf fully [num. 2.)
"
That the antientTnd original
^^
Kjght which every Man hath to the ufe of all Things, revives in the Cafe of extreme Neceffity, as if thev remained in com-
^^
men; lor io long as a Community of Goods continued, no Man was obliged to reftore what he had taken for his Ufe, be-
"
fW ?\i"^
belonged to one more than to another, and every Man had an equal Right to ufe every thing ; infomuch.
"
f 11 D- if" '"^T ^'^c
^* g'"e=>te'- quantity of Things than he had an abfolute need of, by himfelf, everv oJher Man had
a tuii
Kjght to take from him by force whatever was fuperfluous, and necelTary for his Support in extreme'want." On the
contrary,
(..rotjus alio openly rejefts the Opinion of them who eftablilh the Right of taking the Goods of another in the like
caie. upon this
Foundation, "
That every Proprietor is obliged, by the Rules of Charity, to impart to fuch as are in Neccf-
in'-tulT-D"-
^^^^
^
fee not how the Hypothefis of that great Man can be made good, and preferve itfelf from falling
m wan the
t'rmciples of our Author, who has produced a Solution more natural and coherent.
E e
fuggcfts
2 ro Of
the Right and Privilege
of
Necejfity.
Boo k ll.
fu^ejis^ that the extreme Wanti
of
Mankind may be
in any mannerremov'd
by
the
ufe of
temporal
Poffeffi-
ons. There is alledg'd a Paflage o St. Ambrofe irom
Gratian^ Decret. c.Sicut. ii. . 4.
dift.
47.
It is the
Bread
of
the Hungry 'which you detain : It is the Rai-
ment
of
the Naked which you lock tip. Pcreftus
^,
urguing on the fame fide alledges, that in this
Caie a Man is compell'd to the A6tion by a Force
which he can't refill } and then, that the Owner's
Conlent may be prefum'd on, becaufe Humanity
obhges him to fijccour thofe who are in Diftreis.
Befides, he obferves, that the neceflitous Perfon
doth not properly take the Goods which were
another Man's, but which lay in common : And
yet he is bound, when he has obtain'd delive-
tancc fi-om his Want, to make fair Reilitution.
yinton. Matthteus
*"
is of Opinion that a Diilinfti-
on fiiould be made in this Cafe between the Crime
and thcPuniJlmtent ; the Crime ofthe Theft, he fiys,
is not taken off even by extreme Penury, but he
would have the Punilliment either wholly remitted,
or confiderably mitigated and abated. Now that
the Crime of Theft is committed even under
thefe Circumllances, he endeavours to prove fi-om
the Definition of ^tbeft in the Civil Law, which
he makes to reach this Alion : I'beft, the Em-
peror
Juflinlan
tells us, is a fraudulent feizing on
the Goods
of
others,
for
the fake of
making a Gain
of
them. But we may fairly plead (in Oppofition
to Matthteus) that neither of thefe Imputations
can fall on the Facl which we defend. For how
can this be term'd a fraudulent feizing on another
Mans Goods, when both the Owner lay under an
impcrfc61; Obligation of giving the Thing defir'd,
and the other Perfon had a Right, by Virtue of
his prefcnt Condition, to poiTcfs himfclf of it by
the moft convenient means he could? Nor can.
he well be faid to take a thmg of another Man's
for the fike of making a Gain of it, who defigns
it purely for the Relief of his extreme Diltrefs,
with full WiflresandRefolutions to reifore, or to
repay it as foon as pollible. That part of his Ar-
gument is meer Bravado, where he tells us, that
no Violence can compel a wiie and a good Man
to defile himfclf wilfully with any uncomely Alli-
en : And that in thefe Cafes every one ihould, as
?"//>
"^
'
advifes, rather patiently endure his own In-
convenience, than trefpafs on the Conveniences
of
others.
Now befides that 'tis an eafy matter to talkPhilo-
fophically, whiHl we do not ourfelves feel the
Hardjhip any farther than in Speculation''} the
Fat under Debate can, according to our way of
determining it, include no other Turpitude or
Indecency, than fuch as Perfons of Breeding and
Qiiality are guilty of, when the feverity of Fa-
mine compels them to feed on the bafeft and moft
filthy Meats. And then the Rule about Conve-
niences and Inconveniences is befide the Que-
iHon, which only fuppofes fome httle Matter to
be taken from a wealthy Perfon, who doth not
feel the Lofs, to keep another from perilliing by
the Extremities of Hunger or of Weather. The
fame Author obferves, on
*
the Lex Rhodia de
jailu, that tho' for the publick Benefit, in a time
of Scarcity, every Man is oblig'd to bring what
Corn he has by him into the common JVIarket,
yet People are not hereupon impowcr'd to carry
off what they pleafe, becaufe they are in want,
and others abound ; but the whole Bufinefs is to
be left to the Care and to the Direftion of the
Magiltrate. But muft the Poor therefore be con-
tent to ftarve, when the Magiftrates negleft tor
make due Provifion for their Sufiienance ?
As to what fome urge, that there doth not -Sii^-
^c-xrzr\y Difpcnfation
of
the Lazv in this Matter^'tis
an Objeftion that may be eafily fpar'd. For Ef-
ficient Rcaibns have been given why we may well
prefumc, that the Law which forbids Theft is not
to be extended to the prefent Cafe.
VIII. Laftly,T\\e
Danger and Neceffityofour
own Goods feems to allow us the Privilege of
deftroying or of invading thofe which belong to
other Men : Yet with thefe Provifo's, that the
Danger did not happen thro' our Fault
j
that we
cannot find a more convenient way of
'
remov-
ing it
}
that we do not ruin a more valuable
Thing of our Neighbour's, for faving one of our
own, inferior in Price and Confideration
;
that,
in cafe the other Thing had not been loft but for
our lake, we pay the Price of it ; and laftly, that
if what belong'd to our Neighbour muft have
otherwife been deftroy'd, together with ours, if
we had not preferv'd
-
the latter by making
away with the former, that then we confent to
bear a part in the Damage. On this Foundation
is grounded the Equity of the Rhodian Law de
jatu, by
'
which it was provided, that
if for
the lightening
of
a Ship the Men ivere compelVd ta
throw any Goods overboard, the Lofs fwuld be made up
bygeneral Contribution,fmce it happen'dupon account
of
the general Safety''. Thus too if my Vefiel be
driven upon the Cables, or the Nets belonging to
another, I have Liberty to
*
cut them in Pieces,
=>
Ad. Tit. Cod. Defunis, f.
3.
"'
Ad. 1.
47. D. tit. 1. f.
7.
"^
Offic. 1. 3. c. 5.
''
Vid. Oppia?iU3.Yie\A.
]. 3.
V.
197.
"^
Vid. Tot. titul. together with the Commentators on that .->nd on the Naval Laws.
. VII. '
7a//j's Words are ; Siium cuique incommodumferenJum
eft
potius, quam dc alteriui commodis detrahendum.
* The Digefts have alfo another Law, commanding, that if Provifions fail at Sea, every one (hould bring out their Store
and leave it in common. El magis quod,
fi
qiiando ea [cibaria] defecerint in navigations, quod qui/que haberet, in commune con-
ferret. Lib. 14. Tit. 2. De Lege Rhodia dejailu. Leg. 2. . z.
.
Vni.
'
We muft take care that the Way appear fure. Titius's Obferv. 148.
*
We may add, That the Proprietor not forefeeing, or before he forefaw that Neceffity, did not confent to the Lofs of his
Goods.
3 The Words ofthe Digefts arc. Lege Rhodia cavetur, IJt
ft
levand/e navii gratia jnBus mercium fallus
eft,
omnium contrl-
httionefarciatur, quod pro omnibus datum
eft.
Lib. 14. Tit. 2. De Lege Rhodia de jaSlu, Leg. i. See the Treatifes of divers
Authors, De Legihus Nauticis, as alfo Mr. Daumath Civil Laws in their n.tural Order, Part i . Lib. 2. Tit.
9. SeSl. z. . 6, i^e.
* Item Labeofcribit (fay the Digefts)_/^ raz vivcntoriwinavis impulfa effet
infines Anchorarutnalterius, fef nautafunespra-
cidiffent,
ft
7iallo alio modo,- nifi preecifis funibus explicare
fe
potuit, niillam aHiouem dandam. Idemque Labeo
U
Proculus, 6r
lirca Retia Pifcatorutn, in qua navis inciderat, a-ftimarunt. Plane
ft
culpa naularum id faBum cfjet. Lege Aquilia agendtm.
Lib.
9. Tit. 2. AdLeg^Aquil. L. 29, . 3, See Mr. I<!oodf% excellent Treatife, Ai Leg. A\uil. Chap. 18. in
ftn.
ani
Chap.
29.
z if
Chap.
VI.
Of
the Right and Vrivilezje
of Necejfiif. i i i
if I cannot
othcrwife get clear. And if my own that it is lawful for him who
wages ^ jtijl War
Negleft did not bring me into that Trouble, I to poflefs himfelf of a Place
fcatcd in a Country-
am to anfwer but for half the Coft. Thus in a that is at Peace with him
; if there be certain
Fire, I may pull down my Neighbour's Houfe for (and not only imaginary
) Dang'^f,
that the Enemy
the Security of mine, if I am wiUing to make will otherwile iiirprize :t, .nd from thence
annoy
good all that he fuffers by the Mifchief. For tho' him with irreparable Mifchief:
Provided he take
in
' one of the i?ow^ Conflitutions% it is de- nothing but what is neceffary to his own Sf-curity
termin'd, that in cafe the Fire had aftually as the bare Gv/?o^_)' of the Place, leaving both the
reach'd to the Houfe that was puU'd down, the Jurifdiftion and the Profits to the right Owner
>
Perfon who procur'd it ihall not be refponfiblej and fully purpofing to reftore the
Cuflody too, fo
yet the common Opinion inclines more to Equi- foon as the NeceiHty that brought him thuher
ty*", which afferts, that upon fuch Demohfhment fliall ceafe. To thefe Conditions it fhould be
of one Houfe for the Security of many, the Da- added, tliat the Lord of the Place is firft to have
mage fhall be repair'd by thofc neighbouring In- frequent Notice given him, and to be defir'd that
habitants who thus clcap'd the Danger
j
though he would himfelf fecure and defend the Place,
the Houfe which they in this manner ruin hath upon a Promile from the other Prince to defray
not been touch'd by the Flames. For it would be the Charges
j
or that he would dcmolifh and ren-
indecd unreafonably hard, that when
'
I have der it untenable, if he thinks that the moft pro-
fav'd my own Concerns by deftroying thofe of per Method. And another equitable Caution is,
another Man, the whole Lofs fhould be thrown that in cafe the new PoHefTor has expended any
upon him, whilft the whole Advantage lights on Sum in raifing Works and Fortifications, tlie pro-
me. From the ilime Rules and Principles the per Lord is not oblig'd to refund, unlefs he in-
Roman Lawyers deduce moft of their Doftrine tended to have built the fame Defences himfelf
j
concerning that kind of Damage which they inafmuch as the other did not make it his Aim
call Damnum Infelum''\ Thus, for Example, if purely to improve the Place, but chiefly to fecure
my next Neighbour has a. ruinous Houfe, very his own Territories. Boeder^ in his Notes on this
likely to tumble to the Prejudice of my Effects, Paflage of Grotius^ well obfer\'cs, that it is appa-
he fliall be oblig'd to give me Security for an- rent from the Uiage of all Ages and of all Na-
fwering all Damages that I fuftainj and if he re- tions, that no one thinks himfelf oblig'd to allow
fufe this Condition, upon applying myfelf to the another thus to feize on any Fort or Place of
Prator^ I obtain
an Edift, impowering me to his', if he be able to hinder his Attempt. And
enter the ruinous Place. On the fame Account that therefore if the other do aftually take Pof-
they aflert, that
'
in cafe a Man has a Field fur- feffion, the Fad is fuch as may admit of eafy
rounded in fuch a manner on all fides, by the Pardon, but not fuch as can be fiirly and ftriftly
Lands of others, that he cannot get to it without defended on the Groimds of Natural Law. To
feemingly committing aTrefpafsj the Borderers which Purpofe we may confider farther, that 'tis
fhall be compell'd by the Judge to grant him Paf- veiy probable the Enemy may hence entertain a
Hige, at leaft upon the offering of a reafonable Suspicion, that the Lord of the Place is in fecret
Confideration. Confederacy againft him j and fo the whole
Grothis
""
makes this fitrther Deduftion from Burthen of the War may be eafily devolv'd on
the Dodtrines we have been now laying down, the third Party. And tho' the Enemy be well
L.
7. f. 4. t). quod vi aut clam.
^
Add. L.
49.
f. I. D. ad L. Jquil.
De Damno InfeilO'
vid. Digcjl. XXXIX. tit. II.
!
L. 2. c. 2. f. 10.
S
The Words of the DigeJIs are, Si perveniffet [
ignis, eo ufque ]
abfolvi eum oportere .
"
. quon'iam nullam injuriam aiit
damnum dare videtur, aque perituris adibus. Lib.
43.
Tit. 24. ^od vi aut clam. Leg.
7. .4. See Lib.<). Tit.z. Ad
Leg. Aquil. Leg.
49. . i. and \vhat Mr. Titiui fays in his Obfervations in Compend.
Jur. Lauterbacb. Obferv. 420. as alfo
Mr. Noodt ad Leg. Aquil. Chap. 19.
*
Mr. Titius hath reafon to fay, that thefe Rules are good in Speculation, but the Application is very hard, and almoft im-
prafticable in Civil Societies. Indeed, we can't for the moft part be afiured, that he who hath beat down his Neighbour's
Houfe, had reafon to think that he could fave his own that way, and that he was obliged to it by Neceility ; for without this
how can we determine, whether he ought to make good the Damage
'>.
Moreover, Burnings almoft always happen by fome
Fault, or at le.ift by Imprudence and Negligence, and very often we know not whom to charge them on, or how they began
;
and if the Author be fometimes difcover'd, 'tis found ufually that he is unable to make up the Damages of fuch as have fuffer'd.
Laftly, When the Fire is come by meer Chance, we can't e.xaftly tell how the neighbouring Houfes can be preferved from the
Fhe by the demoli/hing of one already beat down, and fo 'tis impoffible to ftate exadlly who are bound to make good the Da-
mage, and how much each fhall contribute. Experience alfo proves, that upon thefe fad Occafions, they who received the
Damage are conftrai ned to bear it themfelves, unlefs the way of Reparation be fixed beforehand by fome Agreement, or Order
of State, or the Bounty of others affords them a voluntary Relief. The Order therefore eilablilh'd in fome Places, that the
Damages that come by fuch Accidents fhould be fatisfied by the Publick, and fo every one is oblie;ed to contribute to the Re-
lief of the Miferable, is highly commendable, Obferv. on Pufendorf Ch. and on Lauterbach CCCCXX. It is alfo a wife Ella-
blifhment, and will be of excellent Ufe, if it be well managed, which has been lately m..de in Pr*^;?, where all fuch as have
Houfes are obliged to pay fome fmall Annual Rent to the Direftors of the Fire-Cheft, where there is a Bank made up of fuch
Contributions, which are defign'd to make good the Damages of fuch Owners of Houfes as ai'e burnt, according to th? Valua-
tion made of them, and according to which they p.iy their Rent.
^
' See Mr. Daumafi Civil Laws in their Natural Order, Part I. Lib. 2. TzV. 8. Sefl.
3.
*
So the Digefts fay. Si intra diem a Prtttore cmijtituendum non caveatur, in pojfejjionem ejus rei mittendus
efl.
D^ Damna
InfeHo, i^c. Leg. 4. . i . See Titius'"?, Obfervat. on Lauterbacb. 9S9.
9 They build upon this Law, to which I have elfevvhere referred. Lib.'}. Chap.}. .7. Si quis fepulchrum
habeat, z'ians
autem ad fepulchrum non habeat, fef a z'icino ire prohtbeatur ___Prcefes _ compellere debet, jufto
pretio ei iter prafiare.
Digeft. Lib. II. Tit. 7. De Religiofis, i^c. Leg. 12. /;///.
'
This has place no lefs, when the Owner of the Place iias no Power to defend himfelf; for if he can, and doth not, 'tis the
fame as if he gave Paffage to his Neighbour's Enemy i fo that this lail may look upon him himfelf as a new Enemy.
fatisfied
212 Of
the Right and Privilege
of NeceJJity.
Bo ok II.
fatisfied that the Place was feiz'd without the
Leave or Concurrence of the Lord, yet if he
refolve and endeavour to difpoflefs thofe who
hold it, the innocent Prince cannot but feel
fome Part of the Calamities of Arms ; which if
he keeps off by any Means, he cannot juftly fall
under Reprehenfion. And thus too in a lefler
Caie, it can never be advifable for a Man to ad-
mit more Strangers into his Houfc, than he can
conveniently get rid of when he pleafes : Since
otherwife he is under a Ncceffity of being
at
their Difpolal
j
and muft perhaps be content
to
walk out of Doors, and to leave all to his new
Mafters".
"
There is not the leaft Difficulty in the Example alledged by Grotiu!, in the fame Place, concerning them who having
need
of a Veflel to fave themfelves, or defend themfelves, take the firft they meet, and ufe it upon the Conditions required.
ZzzXenophon de Expedit. Cyri, Lib.
^. Chap.i. and Mi. Hertiui''s D'lkomk de Co/Jijiofie Legum, Seil.ll. .14.. in Tome 1.
of his Opufc. and Comment.
O F
213
OF T H E
LAW of NATURE
AND
NATIONS.
BOOK III.
CHAP. I.
That no Man be hurt
*
and
if
a Damage he done to any Man,
that Reparation be made.
The Contents of every Paragraph of the firft Chaptei-.
i.'ThatnoMan ought to do any Damageto amther^or
his Concerns.
I'hat
if
any be done^ it ought to he repaired.
What a Damage or Hurt is.
Wloo are they that do an Hurt.
How
fetch
as hurt others are obliged.
II.
Ill
IV.
V.
HAT Duties the Law of Na-
ture injoyns a Man to exer-
cife towards himfelfj and what
Indulgence, what Licenfe, or
Favour it allows him in the
Prefei^vation of his own Perfon
,
we have hitherto endeavour'd to ex-
plain (*).
We may now pafs on to
thofe other Natural Precepts which
contain
the Duties we are to pra6tife
towards other Men.
Thefe we have formerly divid-
ed into Abfolute.^ and Hypothetical or Conditional.
or Goods
B. II.
3-
VI. How many ways a Damage may be done.
VII. jin Example
of
Reparation in a Murderer.
VIII. In one that has maimed another.
IX. In an Adulterer.
X. In a Ra-viper.
XI. In a 'thief.
In the Series of abfolute Duties, or fuch as
oblige all Men antecedently to any human
'
In-
ftitution, this feems with Jurtice to challenge
the firlt and nobleft Place, that no Man hurt
another^; and that in cafe of
any hurt or da-
mage done by him.^ he fail
not to make Repara-
tion
'.
For this Duty is not only the wideft of
all in its Extent, comprehending all Men., on the
bare account of their being Men
;
but it is at
the fime time the moft eafy of all to be perform'd,
confifting for the moft pait purely in a negative
Abftinence from aftingj except that its Afliftance
Mr. Barbeyrac'j NOT'ES on Chap. I. . i.
. '. Not that they are always independent upon every human Al or Eftablifhment. Our Author intimates the contrary
clearly at the end of this Paragraph, in numbring up the Things to which this Maxim extends. No Man can be ignorant
that we ought not to negleft fuch Duties of Humanity, as concern Bargaining, as for Example, to refufe to fell any Man what
he ftands in need of. But the Reafon why he calls thofe Duties, which he treats oi' in this and the following Chapter, abfo-
lute, is becaufe they are the natural Confequence of the univerfal and original Conftitution of Mankind, and ought to be paid
to all Men, though they have no other Relation to us, but a bare Similitude of Nature. Whereas conditional Duties always
fuppofe fomc human Aft, Agreement, or other Accident, and oblige only under certain Circumftances, and with rektion to
certain Perfons.
'
Nefiu
eft
ncrcn Patriie, &-c. It is a Crime to injure one's Country, and confequently a Citizen, who is a Member of it.
Then we muftiniure no M.-;n, becaufe every one is our Fellow-citizen of the great City of the World. Do the Hands endea-
vour to hurt the Feet, or Eyes the Hands ? As therefore the Members of the Body keep a fair Correfpondence with one another
for the Prcfervation of th^ whole : So Men ought to deal friendly one ^vith another, becaufe they are born for Society, which
can't be preferved, unlefs all the Parts, of which it is compounded, love one another, and endeavour mutually their own Prc-
fervation. Sen. de Ira, 1.2. c. 31. Befides this Paflage, which our Author refers to a little lower, pleafe to read, EpiJ}.<)^.
/. 464, &c. Edit. Lugd.Bat. 1672. and
Epift. 103.
3 All Duties which relate to Society may be compriz'd under thefe three generals : i . To do Evil to no Man. 2. To hin-
der others from doing the Mifchief which they threaten to do. 3. To do all the good we can fincercly. Thefe three Prin-
ciples yield .nn infinite Number of particular C'onfequences, according to the difference of Subjefts. Our Author fpeaks here
of the firll, and of the other two together in Chap. III. of this Book. T.tius Obf. 151.
4
F- f
is
ai4
That no Man be hurt t Book III.
Is
fometimes
neceflary in reftraining the Lufts and
PallionSjWhen they fight and rtruggleagainftRea-
fon ;
amongft which rebelUous Defires,thatbound-
lefs Regard which we fometimes fhew to our own
private Advantage, feems to be the Principal, and
the Ringleader. Befides, it is the moft neceflary
of human Duties, inafmuch as a Life of Society
cannot poflibly be maintain'd without it. For fup-
pofe a Man to do me no good, and not fomuch as
to tranfaft with me in the common Offices of Life,
yet provided he do me no haiTn, I can live with him
under fome tolerable Comfort and Quiet. And in-
deed this is all we deiire from the greateft Part of
INlankind ;
a mutual Intercourfe of good Turns
lying only between a few. But what Poffibility
is there of my living at Peace with him who hurts
and injures me
;
fince Nature has implanted in
every Alan's Brcaft fo tender a Concern for him-
felf, and for what he pofTeffes, that he cannot but
apply all Means to refift and repel him, who in
either refpcft attempts to wrong him
*
? Now as
the Strength of this Preceptis aGuard and aFence
to thofe Things which we receive from the imme-
diate Hand of Nature, as our Life, our Bodies, our
Members, our Chaftity, our Reputation, and our
Libertv ; engorging Men to keep them facred and
inviolable: So mull it be fuppofcd tofpread itfelf
thro' all thofe Compafts or Inilitutions, by which
the Propriety of any Thing is made over to us;
fince without it they could obtain no Force or
Effeci-. Whatever therefore we can on any good
Title call our own. Men are by this Precept for-
bidden to take away, to endamage, or to impair,
or any way to withdraw it from ourUfe,in whole
or in part. The fame Duty is virtually contain'd
in many affirmative Commands, which enjoining
fomc one pofitivc Practice, remove and reftrainthe
contrary Enormities. How plainly the Neceffity of
this Law infinuates itfelf into the Minds of all Men,
let Seneca's Obfervation inform us. jisk a common
Rogue ( favs he ) whether he had not rather ohta'm
by ho}iep Means^ what he now gets by Theft andFil-
lany ? He who makes it his Gain to ajfault and pil-
lage all he meets, would he more willing to
find
the
Money by Chance, than to take it by Violence. There
is no one who would not be better pleased to enjoy the.
Fruits
of
his Wickednefs without the PraEiice
of
it
*
''.
Tiilly fays excellently to the liime purpofe, that
for
a Man to rob and injure another to promote his own
Advantage, is more
againfi
Nature than Death, or
Poverty, or Pain '.
IL Farther, it follows from this Precept, that in
cafe a Man be hurt or injur'd by another, in any re-
fpcEl,
the Perfon who JIands
juflly
charged
as Author
of
the Wrong, ought, as
far
as it lies in his Power, to
make Reparation '. For otherwife it would have
been a vain Command not to harm another, if the
Party who aftually fufFers fuch a Harm, muft be
content to put it up without farther Notice, and
leave the Offender to enjoy in Peace the Fruit of his
Injur)', never obliging him to refund, or to rcftore.
Furthermore, were not Reftitution made a necef-
fary Duty, neither would wicked Men everabftain
from wronging others
j
nor would thofe who have
been injured, find it an eafyTask tocompofe their
Mind in fiich a manner, as to maintain Peace with
the other Party, fo long as they ha\e obtain'd no
Recompence or Confideration for their Sufferings.
in. The Word Damage '\\\nc\\ feems properly
to refer only to Goods and Poffeffions, we here ule
in an extended Senfe,fo as to make it take in like-
wife all manner of Harm that may be offcr'd to a
Man's Body, his Chaflity, or his good Name. In
this Latitude then, it implies all Huit, Spoil, or
Diminution of whatfoever is already adlually our
ownj all Interception of what by a perfcftand ab-
folute Right we ought to receive, whether fuch
Right be the original Gift of Nature, or whether
it be allow'd us by human Inftitution and Law.
And laftly, allOmiffion or Denial of anvDuty,or
Performance, which others by a perfect Obhga-
tion fband bound to pay us*. We fixy by a perfeU
Obligation ; becaufe if the Obligation in the other
Part^j be only imperfecl,znd. we confequently have
only an imperfel Right, the with-holding of any
fuch Due cannot really be efteem'd a Damage.
^
Senega o( Anger, 5. II. C. 31. It is a Sin to injure one's Country; and therefore to injure a Fellow Subjefl, inafmuch
as he is a Member of our Country. The Parts ought to be held facred, if the whole delerve our Veneration. And hence like-
wife the Perfon of every Man ought to be inviolable, becaufe every Man is our Fellow Citizen in the grent and univerfal Society.
What a Diftraftion would arife, Ihould the Hand pradlife Mifchief againft the Feet, or the Eyes prove treacherous to the Hands ?
As all the Members confpire in an e.xaft Union and Agreement, becaufe the Safety of each in particular is the Intercll of the
whole Body ; fo particular Men ought to fpare each other, becaufe we are all born for Society. And no Society can remain
fecure, without a firm Love and Concord amongft the Members of which it is compofed.
Nay, Cicero further fays, That there is no Man, who had not rather fatisfy his Deftres without incurring any Guilt,
though he were fure to go unpunifhed. For, fays he, Lii. 3. tSeJi/i. en. who is there, or ever was of that covetous Temper,
or extravagant Defircs, who had not much rather obtain that which he is refolved to get by fome wicked Means, without
making ufe of them, though he were afTured of Impunity .'
*
Sg;i. de Bene/. 1. 4. c. 17.
'
De
Offic.
1. 3. c.
5.
Mr. BARBEYRAc'i NO TE S on . II.
'
That a Man be obliged to make Satisfaftion for any Wrong done to another, it is neceffarT, I . That the Injury done be
forbidden by fome Law, either Natural or Pofitive. 2. That it was done through our Fault, and that the Will did either di-
reftly or indireflly concur in that Aftion, by which the Iniury is done. 3. Laftly, That he who has fuflcrcd the Dim.ige, is
no way confenting to it. For if he give his Confent, either direflly or indireflly, though ivith fome Rcftriftions, the Prohi-
bition of the Law ceafcs, and confequently fo does the Obligation to Reftitution. Our Author ought to have taken notice of
ihefe Three Conditions diftinftly, becaufe they are the Foundation and Key of all the Chapter.
Mr. Barbeyrac'j NOTES on .II.
In the /?5wa Law the ordinary Signification of Z)/JWiJf^ is this, fome Hurt done to our Goods or PofTeffions, produced
immediately by the Perfon, who is the Author of it. This Suppofuion is founded entirely upon the JquUian Law, and ferves
only to dirtinguifh the different Sorts of Aftions, which are brought to Juftice by their feveral Circumilances. Titius
OIJ. 155. Ji'Jiin. Inft. U Digeft. 1.
39.
tit. 2. leg.
3.
*
From hence it appears by this firft Law of Natural Right, viz. That we ought to do evil to no Man, that all forts of
Anions in general are forbidden, by which any Wrong or Injury is done to our Neighbour in refpeft to all Things to which
he has an undoubted Right, viz. Murder, Wounds, Blows, evil Words, Affronts, Calumnies, Rapine, Extortion, Theft,
Pillaging. Fraud, and Force, either direft or indireft, mediate, or immediate, l^c. as this Author expreffes himfclf in his
Abridgment of the Duties of a Man and Citizen, /. i. c. 6. . 3. It ought alfo further to be obferved, that a Damage or Hurt
may be done to the Soul by neglefting to iiaform the Mind, or regulate the Paffions of fuch as we are obliged to inftruft or re-
form, and much more by leading them on purpofs into any Error or Vice, from which \ve ought to reftrain them.
i
proceed
C
H \
P. r. Or
J
Reparation to be
made.
2
t r
For
fince all
Performances of this kind ought to or Fraud ihall prejudice or
obfti-uft him he in.cv
proceed
from the voluntary Motion of fome virtu- demand Satisfaftion
> tho'
not the full 'VaJMc o
ous
Principle in the Giver, and fince I have no the Office defired, yet to the value of his uncci
Power
or Licence to exact the Payment ofthem by tain Expectation*.
And now we are fcttii'o ih
force,
it would by no means be convenient that I '^otionoi Damage, weare farther to remark ^ri
fhould
think my ielf damaged, in not receiving it affcfts not only the thing itfelf, which be:'.-
-
fuch
things as I could not otiierwife expert, than therourPofreffion or our Due, is hurt, delb-T,\ .
in the way of free Gift and Benefit. And as I can- or intercepted
j but Ukewife the Fruits or Proiir
not reckon thofe things amonglt my own, which I accming from the thing, whether
thevhavcbccu
have
only -xFitncfs ox Capacity to po^^c^s; folhave already received (though then indeed
r'heymarbc
no reafon to complain of injurious Prafticc, ifthey valued as particular Goods or Things) or whethe;
happen to be kept from me. .//;7/7o//e%s elegantly they are yet only in Hope and Profpcft, if the
tothisPurpofe, be 'who out of a mrro'wnefs
of
Spirit Owner had a Right of receiving them'j provid-
refufes
to
affifi
Another with his irealth, doth not here- cd ftill a Deduftion be made of the Expences he
by increafe it, Eth.v.4. and fince he has not more, the would have been put to in fecuring and gatherin'j-
Perfon
whom he thus fends away unreliev'd has not in fuch Fruits
\
left he enrich himfelf at tht-
lefs.
On the fame Principle is founded the Argu- Charge ofthe other Party. Nowthe value ofFruits
mcnt which Cicero makes ulc of in his Defence of in Expectation rifes and falls according as the time
Plancius, that altho' the other Gentleman Z^/cra- of receiving them is more or lefs diltanr, and con-
venfis
might perhaps be the more worthy Compe- fequently the Ifiiie more or lefs uncertain. Thus
titor, yet it was in the Power of the People to pafs the lofing a Field of Corn in the Black w\\\ not be
him by, and to choofe Plancius into the Office of rated fo high, as if it had been deftroy'd in iheEar.
jEdile, in as much as neither of the Candidates had Some Confideration too is allow'd for what v/e call
^ perfc^
Right to xhzt Honour. It is a Privilege, Civil Fruits. Thus he who fets on fire another
fays he, belonging to the very Condition and Confiitu- Man's Houfe
*",
is not only bound to rebuild it,
tion
of
free States, that they be able by their Votes, but likewife to make good the Rent, which it
togive to a Perfon, or to takefrom
him what they will, would in the mean time have brought to the Own-
Yet in the iame Place the Orator diftinguifheth er. Philojudisus
"^
informs us, that in his Nation,
between what People could do, and whatthey ought when a Man had any way damaged his Neighbour,
todo} th.QTcxm ought im^lfmgth-xtlefsperfeSl Ob- and done Penance for the Faft, hewasobliged, be-
//^2//o, by which we ftand engaged to the Exercife fides paying to the full value, to add one fifth
ofevery Virtue. But here
*
Gro/m well part more, as a Comfort to the Perfon who had
This feems to be contrary to what our Author proves in other Places, viz. lib. 4. c. ij. .6. For thougH one does not
what he ought to do, he does not do any fuch real Damage, as to be obliged to Reftitution. It is fufficient that a Man
have a Right to do a Thing to fecure him from a juft Imputation of any ill Confcquences that may refult from it to another.
The Roman Lawyers maintain the Truth of this Maxim, that no Man does wrong to another, unlefs it be he that does that
which he has no Right to do, Digeft. 1. 50. Tit. ly. De diverjts reg. Jur. Leg. 151. If in thefe C.\fcs any one receives a Da-
mage through our Means, 'tis his Misfortune ; but fmce 'tis none of our Fault, it can't be reafonably expeAed that we (houH
make any amends.
*
By the Reman Law the Approvers and Authors of any Mifchief are liable to the fime Punifhment. Imo isf
fi
erat fef~
vus, isc. If a Servant be about to run from his Mafter, or rob him, and another commends hisDefign, he is guilty, forh*
ought not to encourage his Wickednefs by Commendation. Digeft. l.li. Tit. 3. Defervo corrupo, leg. i . .4. Mr. BayJe
in his Dlfcourfe about Defamatory Libels, and Grotit/s before him, approve of this Law, which they fay is built upon this fure
Maxim, That they who approve an Aftion, 'tis very likely, would do it if they could, i.e. if fome reafon of Self-love did not
hinder them from engaging in it. The firft alfo approves of the Law of Valentinian and Valens, which make thofe Men liable
to a Capital Punifhment, who accidentally meeting with a Libel, difperfe it, whereas they ought to have torn it, or burnt it.
Vide Cod. 1 . ix. Tit. XXXVI. De famojis libclUs. For
(
he adds ) I can't conceive, but he who in the like Cafe difperfes a
Libel, ha* as great a Defire to injure, as he that compofed it, and confequently deferves as great a Punifhment as the Author.
For certainly in this laft Cafe there is fomething more than a meer Approbation. To difperfe a Libel, which might and ought to
have been fupprefTed, either altogether or in part, is to do an Injury dire(flly to the Party defamed, and join with the Author
of the Libel. As to the Law of VIpian, if a Slave is fully refolved to rob his Mafter, or get away from him, the Approbatioii
given to thefe Aftions, which he is about to do, fmce it neither encourages nor confirms him in this unlawful Aftion, does not
leem fufficient to oblige to any Satisfaftion, as Mr. Bayle infers. For though a M.m would do a Thing with Pleafure, were it not
againft his Intercft, yet in my Judgment he is not punifhable, unlefs he doit, by any human L.aws (of which he is fpeaking')
efpecially if he never defired to do it, and his Approbation did not determine, nor encourage the Aftor.
3 The Latin is, ^id intereft inter fuaforemfaBi, {jf frobatorem ? out quid refert, utrum voluerim
fieri, ant gaudeamfadumf
Cic. Philip, ii. e. 12.
* Cicero does not feem to fpeak any otherwife than he does, who fpeaks his Thoughts ferioufly. 'Twere better to anfwer,
as this Author does afterwards, that he fpeaks not of a Reparation of Damages, but only of the Vitioufnefs of the Intention of
fuch as approve others Crimes.
Nemo damnum faeit (fay the Roman Lawyers) ttifi qui id fecit, quod fticere jus nonhabet, Digeft. Lib.
50. Tit. 17.
>
See Pfalm cymxvii. f.
7.
'
PhUit>. II. c 12.
*
h. 27.
to
C H A p.
I.
Or*, Reparation to he
made,
217
to their
Enormities
;
and his Proteftion interpofing, ftrate it by an Inftance.
Here are three Men then
hindrcd them from making good the Damages they whoat the fame time,tho'
perhaps in different Parts'
had been guilty of
'. As to thePoint of counfel- all fet fire to an Houfe.
This
Fa6t of burning the
ling
or advHing, this is moil certain, that he who Houfe feems to have proceeded
from
each Manen-
fuggeib to another the way and manner of com- tire, and in whole, although not from
each alone
-
micting a Trefpafs, is bound to Reparation. Where- in as much as the fame Mifchief
would
have
fol-
as the lame Obligation doth not fcem to lie on low'd, had (?ro/)' applied the Fire.
Butfuppofc
fe-
thofc vv^ho either perfuade a Man in general Terms veralPerfonsjoin in beating or cudgellincr
a Man
to apply hirafelf to an ill Courfc, as to Theft or one of whom perhaps gives him a Wound in the
Robbery, for inftance, or join their Approbation Head, another breaks hisArm,and a third ftrikes out
and Confent
''
to his Rcfolution, when already his Eye
j
here each Perfon fhall not anfwer for the
fixt and fettled
j
as is often the Cafe with timo- whole Hurt, but only for that part of it, which he
rous Counfellers, or bafe Flatterers of Princes '. himfelf cffcfted. Though in Cafe one of them e-
Laftly, concerning thofe who concur to an injuri- fcape, it is ufual to condemn the rcit who are taken
ous Alion, by omitting fomewhat which they in the whole, efpecially when it appears, that they
ought to have perform'd, this may be obferv'd, combined together to execute the Mifchief.
We
that their Omiilion doth then only bind them to may ftill fet this Matter in a clearer Light, by diftin-
rcpair the Damage, when it is of a Duty, to which guiihing between divifible and
indiviftble JBs. The
they ftood engag'd by ^perfeH: Obligation
j
not if latter which we are concern'd with, are fuch in
the thing was only a Matter of Charity and Huma- which many Perfons concur, but in fuch a manner
nity. For, fince what is owing to me in this im- that the whole A6t would have foUow'd from the
perfe6t Manner, I cannot yet account my own, Endeavours ofone only
j and therefore cannot con-
neither if it be intercepted, can I go about to re- veniently be divided into Shares amongft them all
>
cover it
',
whatever Z/V^/^-r in his Obfervations on ofthis kind are the firing of Houfes, the breaking
Gro/zj
*"
alledges to the contrary. down of Banks and Damms, or the hke. For the
V. Where therefore many Perfons have con- fame Damage would have enfued, had one only of
curr'd to oneAft ofDamage, in making Reparation the many Parties fet his Hand to the Exploit
j
fo
this Order fhall be obferv'd
j
thofe fhall be in the that it is impoffible to define and fettle what part
firft place chargeable, who fet" forwards the Mif- of the Fire, or ofthe Flood,
proceeded from each in
chief, either by their Commands, orbyfomeo- particular.
WhenmanyjoininanAftof
thisNa-
ther powerful Means, amounting almoft to a necef- ture, each Perfon fhall be thus far refponfible for
fary Influence. And the immediate Aftor of the the whole, that in cafe they are all apprehended
Crime, or he who was thus forced to lend his they fhall contribute equally to the Reparation
j
Hands for its Performance, ihall, in thefe Cafes, but if upon the Efcape of the reft, one only be
be efteem'd only as the Injiriiment. Where any one taken, he ftiall then be charg'd with the entire Sum.
appears to have engag'd himfclf in the Enterprize, After the fame manner, if Ibme ofthe Perfons apr
without being driven on it by Neceflity, he fhall be prehended prove infolvent, the whole Burthen
firft obnoxious, and then the reft who contributed fhall be laid on thofe who have more Subftance
their Aftiftance
i
yetfo, that if the former ofthefe and Abihty. In this too the Reparation
of
Da-
Parties concern'd fhall have made good the Da- mage differs from the ExaElion
of Punifhment^ that
mage, the others ftiall be then clear, as to Reparati- in the former, if full Payment or Reftitution be
on, tho' not as to PuniiTiment. But what if an Aft made by one of the Parties concern'd, the reft are
proceeds from many Perfons, who are all Authors or cleared and excus'd ; fince it is not confiftent with
Caufes ofit in the very fame degree
>
ftiall each Par- Equity,that the fame Damage ftiould be twice made
ty be refponfible for the whole, or only for an equal good (though by way of Puniftiment, this is
Share ofthe Damage? Grotius " pronounces in this frequently praftis'd) but on the other hand, in pe-
CzCe,iha.teachPerfonis to anfiverforalljif
the whole nal Cafes, nothing is more ufual, than that every
Fatl proceed froin each, tho' not from
each alone, particular Accomplice in a Crime be made to fuffer
Which Rule is fomewhat obfcure, unlefswc illu- aU that the Law inflicls''.
5 The French Tr.infl,\tor here adds, So that there wasfomething elfe befides a mere Approbation, or Defence
of
the Wrongs done
to others, which fcemsto m;ikcour Author's Rcafoning more clear.
*
Th;it this Reftriftion ought to be added, efpecially if by the fundamental Laws of a Kingdom, the Minifters are oblieed
to deny their Confent to their Prince, as it is in England. See the Paffage cited out of Dr. Bates'z Blench. Mot. Nup. Angl.
Parti, compar'd with our Author, 1. I. c. 5. 14.
,
' Certainly of the Perfon himfelf, who has refufed to do any ofthefe Duties
;
but if he was hindred by feme other Perfon,
he has a Right to require Damages of this latter, if not before humane Tribunals, which often fuffef many Wrongs, yet hj
the immutable Rules of Jullice and Equity. See . 3. above. Note 8.
Mr. Barbeyrac'5 NOTES on
.v.
'
For the Rule of the Law is this : He does the Wrong, who commands it to be done, but he is in no Fault, who is un-
der aNeceffity to obey.
Digeft. Lib. L. Tit. XVII. De diverfis Reg. Jur. Leg. CLXIX.
^
Compare.^;//. Matthaus deCrlmin. Proleg. c. I. f.
7, 8,9.
*
L. 2. c. 17. f.
9.
<
Ibid. f. n.
i
Such a Cafe we have
in ^intilian
Inftitut. 1.
7. c. 6. Two Thieves had ftolen together Ten Thoufand
Seflerces, they were fued in Court, and
Forty Thoufand demanded of each Man, according to the iizo' enacting, that every Thief fliall pay Tour-fold.
They petitioa
that each may pay no more than Twenty Thoufand Here the Judgment ought to go againft the Thieves, in as much as by
the ifo/stfK Laws,' thefe XWwj- of /Jiy/zVa/zOT are reckon'd under the Head of Pi-wZ/JiCT^^//,
f. ult. de Oblig. qwe ex deliS.nafc.
1. 7. f.
5. 1. 8. D. de JiirijditTwne, 1. 6. prin. D. arborumfurtim ccefarum : 1.
34. D. de injurits. Add. 1. 1 1 . f. 1, 4. D. ad L.
Aquil. 1.
5.
I.
C 2. ibid. 1. 15. f. 2. D. quod vi aut clam. 1. 2. f. 9. D. defurtis, Hotoman. illuft,
^icji.
33.
A
VI. Now
2 1
8
That no Man
he hrti
Book III.
VI.
Now
\^henever we hurt or endamage ano-
ther
we do it either out of full Purpofe and pre- "EKl^vaf r iTcSeiiv, a.i^v'vv, % v Iimaviv
meditated
Guilt
j
or
byaFault of Negligence only, aJ/m'
s-Uwf
a :;^est(
^atartja-'Ttf- n Wj- ri^,
andnotofDefign
(and this Negligence, as it is
,
more or lefs grofs and fupine, is more or lefs cul- Striving tofave your Frtend., you have hm jlain
;
pable) or lallly, we may do it by meer Chance^ fo His Blood will cleanfe your Hands^it ne'er cmfiain'^.
that the Injury
cannot rightly be m/'a/e^ to us \
^. . ^, , , , r,
Among fome
People, thofe Damages are not only But in Cafes of pure Chance, where the huittul
imputed to a Man, which are committed with his Aftion is not mix'd with any Fault of ours', it
AlTiftance or
ConcuiTence, but thofe likewife is evident we are not oblig'd to Reparation. For
which are caufed by his Servants or Cattle, without when 1 have done nothing that can be fairly laid
his pofitive Influence. It is beyond doubt, that he to my Charge, there feems to be no Rcafon why
who offers Damage to another out of an evil De- the Misfortune, and the Damage of a Haim which
fivn
is bound to makeReparation, and that to the I unwillingly caus'd, fhould rather fall on me than
full' Value of the Wrong, and of all the Confe- on the Pcrfon who receiv'd it'. Yet if a Perlon
quences flowing
from it. But thofe likewife ftand of Wealth hurt a poor Man, though meerly by
refponfible,
who commit an Aft of Trefpafs, tho' Chance, it will become him by fome Ad of Li-
not defiencdly,
yet by fuch a Piece of Negleft as berality to fupport and comfort the Suflerer. As
they
might eafily have avoided '. For it is no in- for thofe Actions which lie againfl us for any Trefj
confiderable Part of focial Duty to manage our pafs or Hurt committed by our Cattle or Slaves, and
Convci-flition
with fuch Caution and Prudence, the like, *Grotius is of opinion, that
,^.-^
jj^ ,7.
that it do not become terrible or pernicious to they owe their Rife to Civil and Pofi-
^ ,2.
others; and Men under fome Circumflances and tiveLaws; inafmuch as the Maflier or
Relations are obliged to more exad and watchful Owner being innocent of the Faft, is not by any
Diligence''-.
Indeed the flightcft Default in this natural Obligation made refponfible for it. Yet
Poirft is fufficient to impofe a NecefTity of Repa- others hold that Actions of this kind arc moft agree-
ration. unlefs under one of thefe Exceptions, ei- able to natural Equity, although they are not pre-
thcr that the Nature of the Bufmefs was fuch as cifely fuggefted by the Law of Nature. It is one
difdain'd a Care more nice and fcrupulous, or that of Plato's
^
Conftitutions,
If a Man or Woman
the Party who receives the Wrong is no lefs in
"
being a Servant, fliall injure the Goods of ano-
fault than he who gives it ; or laftly, that fome Per-
"
ther Perfon, either by an unskilful, or by an im-
turbation of Mind in the Perfon, or fome extraor-
"
moderate Ufe of them, the Perfon who receives
dinary
Circumflances
in the Affair, leaves no room
the Wrong, not being himfclf the Caufe of it
>
for accurate and confiderate Circumfpcftion ; as
"
the Mafler fliall either make him Satisfattion for
fuppofe a Soldier in the Heat of an Engagement
"
the Damage fuftain'd, or fliall deliver the oftend-
ihould hurt his next Man with his Arms, whilfl he
ing Servant into his Power and Pleafure." And
brandiflies and employs them againfl: the Enemy, the fame way of proceeding is obfer%'ablc in the old
To this purpofe the Story in v//' is remarkable
>
RomanStoryof
Evander^ddivering
uphisScrvanc
A young Man travelling towards Delphi, as he Cacus to Hercules^who had convidcd him ofilealing
defended his Companion from the Robbers, hap- his Cattle^ But why the Owner of a Beaft Ihould
pen'd to kill him by an unlucky Turn of his rather fuffer Damage than he who upon provokmg
Weapon;
and upon Application to the Oracle a Creature
'
not violent by Nature, has without
receiv'd
hisPardon in this comfortable Anfwer: the Owner's Fault receiv'd a Hurt,theReafon feems
Mr. Barbeyr.\c'j NOTES on . VI.
See the Civil Laws drawn up in their Natural Order, by Mr. Daumat. Part I. 1. 2. Tit. 8. where you will find a great
Number of thefe forts of Cafes decided, wherein it appears, that there is nothing but the indu-eft and interpretative Will oi
him that caufes the Damage.
*
Among the Laws of Mofei.
_ __--
r-i l-l j~j
3
This Rellriftion ought carefully to be obferved. For when the accidental Cafe is an EfFefl of fome Fault, which produced
5t we are indifpenfibly required to make good the Damage, the Obligation to repair being the Effeft of the Fault, and not of
the Chance See Mr. Datmat, Civil Laws, Part I. Lii. 2. Tit. 9. We ought to remember that we may be engaged by lorae
Agreement to anfwer for fome accidental Cafes, and then, as any one may fee, the Obligation to make good a Damage is an
Aft of our Will, and the Accident gave us only an Opportunity to fulfil our Promifes. Seel.
5.
c. 9.
following. Mr^^*?-
mafius goes farther, and maintains, that a Man is bound to make good any Damage, of which he is only the Phj-lical Caule,
altho' he does not do any wilful Injury ; but the Welfare of human Society does not feem to require, that our Obligation_ to
fatisfy a Damage Ihould extend fo far. Human Society will be happy enough, if every Man carefully abftains from endamaging
ethers, not only out of a formal Defign, but thro' the leaft Negligence.
,
, -
a 1
4
The Author in his laft Edition, which this Tranflation follows not, places the ne.xt Paragraph, and that molt properly,
lere, but then it mull be render'd, // // clear, inftead of, much more is it clear.
5 This Rellriftion is made by the Civil Law onlv, for according to Natural Right, it imports not, whether a Bealt
follows the Difpofition of thofe of its own Kind, or not, provided that it carries itIeU in the ufual Way when it does the Hurt.
Neverthelefs, fince it often happens through Man's Default, that a Beaft does mifchief, though it follows its own Natural In-
clination, and thofe Damages which happen by its extraordinary Motions, could not elfe fo eafily happen, the Uiltinftion mult
not be neglefted. Tit. ObJ. 261 . To this we may add alfo the Damages that arc caufed by an Inhnt, a m.id Man, or orie leized
with a Fit of a Frenzy. Mr, Thomafius maintains, with Reafon, that the Damage ought to be repaired out o( the Infant s or
mad Man's Goods : For though neither of them are capable to do a Wrong knowingly, it is fufficient that they are the Phylicil
Caufe of a Damage, which they have no Right to do : For the Obligation to Reftitution ariies from the Thing itfelt, and Na-
tural Equity, and not from any Agreement or Crime. For if we may oppofe a mad Man, when he does us any Wrong, why
may we not expeft Satisfaftion out of his Goods, when he has done it f We muft luppofe fuch a Reftriftion here. This bi-
tisfaftion is the more juft, becaufe it is commonly the Fault of fuch as are to take care of fuch Child or mad Perlon.
*
Lyfias
Orat. xxx.
OCSut iSiv iKxTiov <f'u^d'x_iMi.
yiyvi-mi.
No Misfortune happens to any Man by his good Will.
See Exod. xxi. 28, &c.
33,
&c. U
Grot. ibid.
*
.'J'"g
god at the publick Charge, thinking thus to obtain his Pardon, betray'd an impious Opinion oi God Almighty,
as it he would fufFer us to buy our own Forgivenefs at the Lofs of other Men. Valer. Max. 1. 2. c. 8. f. 4." So much
Dilterence
there is, whether you really add any Thing to another, or whether you only reftore what you had taken from him,
as there is
between
the Beginning of a Benefit, and the End of an Injury.
<
See Mr. Placette's Treatife (pf Reftitu-
tion,
/.
3.
<.
4.
t
Xhe way of reckoning the Maintenance we learn from L. 63. D. ad L. Falddim.
out.
That no Mm
he hurt :
220
out,
how much the deceas'd would have fpent of
any fuch Gain, had he been fuflfet'd to hve and to
procure it '.
^o\v\\t\^mun;ull
Slayer that kills a Man, who
had a Right not to be kill'd by him, and who
therefore by the Aft that caus'd his Death was
truly injur'd.
And this Right appears to belong to
eveiy
individual Perfon, fince Nature by a gene-
ral Command binds all Men to hve like fociable
Creatures, and to abftain from mutual Hurt
.
Which
Right a Man may, as far as in him lies, renounce
>
atleaft fo as to make it fair and juft for him to be
hurt by fuch or fuch particular "Perfons
>
and this
may be done either tacitly or exprejly. He tacitly
difclaims this Right, who in a violent manner fets
upon another without juft Caufe. For fince the
other has a Right of repelling the Violence by
any Means he can, the AlTIrilant is to accufe him-
felf only for anv harm he fuffers in theRepulfe of
his own unlawful Force. The fame Right is ex-
prejly renounced by him who enters into /f-jr with
another upon mutual
Appointment and
Confent.
For 'tis a Law of War, that eveiy one have fair
Liberty to ufe his full Endeavoms for the Defeat
and Suppreflion of his Enemy \ And though in
fuch War the prevailing Perfon may perhaps fin
againft Charity, yet the Violation of Charity only
will not oblige to repair the Lofs he has thus
occafion'd.
The Life of a Freeman
does not admit of any
Rate or Valuation 5 and had it any, there is no
Perfon to whom the Debt fliould be paid. For his
Life does not properly belong to his near Relati-
ons, it is only their Intereft that he fhould livej
and therefore the Value of that Intereft or Advan-
tage being paid to them, they can demand no fuch
farther Recompenceas the full Worth of his Lite.
The Cafe is otherwife with a Slave or Vaniil,who
being entirely the Propriety of his Mafter, and
falling under Exchange and Commerce, in the
manner of other Goods, has really a Price fet upon
him, which, if he be wrongfully kill'd, the Mailer
has a Right to demand. If it feem hard and fome-
what like Inhumanity to rate our Slave thus, in
the fame manner as we would our Beart, it may
be anfwer'd, that we do not make this Valuation
of his Perfon, but only of the Worli and Service
which he would have done us.
Thofe in like manner iland bound to 7?^/>^ra?/oK,
who kill another in their Sports or Recreations,
which is eitecm'd equal to deliberate Mifchief \
Book III.
And thofe alfo who commit the fame mortal Vio-
lence,
through their own Unwarinefs
andNegleft.
Examples of which Cafe we find fet down in the
Inflitutions
"
''.
As if a Soldier pradifing with his
Arms in another place, than what is fet apart for
thofe
Exerciies, fhould llay a Man who was ca-
fually
paffing by >
or if one who is not a Soldier
fhall happen to do the fame
>
though in the place
ordain'd for the publick training of Military Men.
But if a Soldier in the fame place of common Du-
ty fhall undefignedly
take away a Man's Life, he
fhallftand cxcufedj for he was performing his pro-
per Bufinefs, and the other Party was in the fault
for throwing
himfelf into the Danger ^ If a
Feller of Wood fhall with the Limb of a Tree
which he is cutting down, kill a Servant pailingby
in the high Road, or in a Way near a Town
y
without having
firft cried out to give Warning.
But in Cafe he did thus cry out,and the SeiTant neg-
lefted to fave himfelfupon timely Notice, the Fel-
ler fhall not be charged with his Death. No more
fhall he if the fame Misfortune
happen'd at a di-
flance from the
Highway, or in the middle of a
Field, although he did not give the ufual fign ot
crying out 5
becaufe there the Stranger had no
Right of paffing, and confequently ventured at his
own Peril
^.
IfaPhyfician deftroy his Patient, either by plain
Negleft and Defertion, or by adminiftring through
Ignorance,
improper, and dangerous Medicines ^
Ifa Mulctier, through Wcaknefs or Unskilful-
nefs, fhall have fuffer'd his Mules to run o\'er any
Perfon
j
provided he undertook this Bufinefs ofdiiv-
ing at his own Choice, or made it his Profeflion;
not if he was
prefs'dandcompeU'd to theScrvice,_
protefting at the fame time his want of Art or of
Strength
2.
In the Alcoran ^
he who fliall ignorantly kill
a
Mufulman,is
enjoin'd to make good to his Rela-
tions the damage they fullain'd by his Death
;
and to
redeem
onePerfon ofhis ownReligion fromSlavery.
It feems probable that thofe likewife were oblig-
ed to fome fuch Method of Reparation, who by
the Favour of the
'Je-mfl}
Law enjoy'd the Privi-
lege
andProtedionofthe^/fy/www,
or Cities ofRe-
fuge \ Since in the Cafe there fpecified, of a
Man's killing his Neighbour by the fill of the Hcai
of his Ax from the Helve^ the Man is not entirely
blamelefs, in as much as he ought to have ftrcngth-
ned his Inftrument better, for the Prevention of
flich a fad
Mifchancc
.
But how it came to be
3
Mr. Van Muekn, in his Commentary
upon Gr./m, 1. 2. c
.7-^i
.'6;behevcs that
'^^^:^^''''''l^^^^''\^'^^^^ it tpeS d
which the de..d Perfon mi.ht have nude, ought to be examined. If his Gam were altogether ">?'"'"'
j
^'U ^depend ^
more upon Chance than the Induftry of the dead Perfon, no Satisfaftion ought to be made =
b"? '^
^'^
^a n u er^morally c^
tain, and vvou'd have in all appearance been produced by the L.abour and Induftry of the '^^^
perfon as the Gam ot fome
iTrnders, Merchants, and Artificers is, then he ought to fatisfy the Perfons concerned for the Gam loft according to the equ^
table Eftimation of an Arbitrator, who (hall make as exaft Deduftions for all Expences which the dead would have been at,
as poffihle, and confider the Circumftances our Author mentions.
4
See th.ucx-cellent Treatife upon this Subjeft, compofed by Mr. Noodt, Ad Legem
Aquiliam.
5
Our Author obfcrves a little higher, that the Alcoran in the Chapter of Women appoints, that
'/.
P"^"
?f'^J .Jf
Will, kills a Mujulman, he mull not only make Satisfaftion to the Parents of the Perfon Ham, but alfo redeem a captive Mujul-
tnan at his own Charge.
-
To this purpofc we have a Story in Plutarch'! Laconian Apophthegms ; that two Boys one of them with a Sickle, gay^
the othe a m^ortal Wound ; when the Companions of the wounded Boy, who had haften'd to part the F"y, proinis d hwn to
rlrnge his Death on his Murderer; By no means, fiys he, this would be to aft unjuftly : For what he hath done to me u na
more than I had done to him, had I been ftrong enough to have prevented him. Add. I.
^, 5,7.
1.4- '
S^-
1-
>
i^- <'*.^-
"^^"'L. 1. 4. f. I. D. ad L. Cornel, de Sicar. ^
ib. Gothofred. I. .0. D.
adL.
iifj'&f-^,;
f
'
'^'f
^-
'/'
^^fl^'
'"
&c
-^
Addlq f 4. D. ad 1. Aj.-a/. b"
Antiphon. Orat. VII.
' L.^x.D.adl.
Aquil. Add. Leg.Burgundwn, Tit.
46
f
Vid
]
^^^.^ Leg. Wifigothor. 1. XI. Tit. .. c. 6. ^ Add. 1. 5.
f- 3- 1- 7-
f^/-
5. 6, 8 1.
\\^J'-njf
3"- M^-
i.^DadLA\,al.^confer^tmi^,^.
Se.X.de HomUid.
h
l the Chapter .//T,.... ' Num.X^XW
.
i^
Deuteron.XlK^
Chap.
T. Ofy Reparation to he
made.
allow'd,
that the
"
Revenger
of
Blood fhould dif-
patch fuch an innocent Slayer^ it' taken without the
Bounds of hisSanftuaiy, which ieems not altoge-
ther conlillcnt with a regular State of Govern-
ment, we have this only Re;iibn to aflign, that
22f
was the real
Occaflon
of
them,
the Perfon
who
gave It flood farther
bound
to
pay for his fecond-
Cure> if they
proceeded
from
any
other Caufc,
he was not reiponfible.
As often as the
Wound
being imperfeftly heal'd
broke
out again,
he was
Ihll charged with the Expences,
but not
after it
God was pleas'd to grant fome little Initances of
Indulgence to the cruel and implacable Genius of had been once brought to a perfc6tCure.
It 'mVeht
that People
^\
be added, that his Obligation
continued
only in
VIII. Hethat hasmaimed aMan,fhall beobli- cafethe Wound thus broke out o//>/^^;
notif the
gcd to pay the Charges of the Cure, and to make Thing happen'd thro' the Fault of the Patient 6r
up what he now gains lefsthan before, by his La- thro' the Unskilfulnefs of the
Chirurgeon.
'
hour or Calling''. On this Head the
Jezvifi
Con- In rating the Allowance to
bemadctheSufFc
ftitutions are veiy worthy of Remark, as we find
them deliver'd mConfiantim VEmpercur^. Hethat
hurts his Neighbour is refponfible on five Ac-
counts
j
for i\\Q.Damage^^or the P^/w, for the Car?,
for the CeJJation
of
IVork^ and for the Jffront or
Difgrace. The Damage they compute in this Me-
thod: If, for example, he has beat out the other's
Eye, or cut off his Hand, or broke his Leg, they
then confiucr the fufFering Party as if he were a
Slave to be fold in the A^arket, and fo reckon how
much he would have yielded in Sale before the
Hurt, and how Eir his Price is now fallen. For
they judged there would be no certain Way of
fettling thefe Rates and Accounts, fhould they in
this Cafe dillinguifh between the different Quali-
ties and Conditions of Men
j fince the Profeffions
of Life, and the States of Peifons admitting foend-
leis a Variety, the Sufferer would be always throw-
ing in fome new Reafon to enhance the Damage, only lying fome time fick of his Wound', he after
and aggravate the Hurt, and confequently to en- wards recovers without prejudice, or whether he
large his Demands ofCompenfation. They thought is aftually depriv'd ofa Limb,
Maimonides
propofes
it convenient therefore to fet all Men, with regard a nicer and more exaft Way of rating the
CeJJation
to this Bufinefs, in the one general Condition of o//i^or^, according to particular
Cafes. IftheSuf-
Slaves, the jull Value of whom was difcoverable ferer fhall not be maim'd, but only caff into a Sick-
beyond difpute. So that if the maim'd Perfon, nefs, and confined to his Bed, or if the affefted
fuppofed to be a Slave, would before the Huit Limb only fwell for a time, and afterwards regain
have brought fifty 6'/jf,^c/j, and could be fold afteij- its Soundnefs and Ufe,the other Paity iliall allow
wards for no more than thirty, the Maimer was him daily for the Lofs of his Work, according to
J Sufferer
for the
Ccfation
of
his Work^ they confider'd
him
as a Keeper
of Cucumers. The
Jcivifj Doftors thus
enlarge on the Point;
theyfuppofe him already to
have receiv'd
Satisfaftion for the Defeft or Damage
fuftain'd in his Body, and likewife for the Pain he
has endured. And therefore
fuppofing him (forin-
ftance) to have loll: theUle of a Hand, or a Foot,
they do not now confider
what Gain he would
have made, had thofe Limbs remain'd entire; but
becaufe he hath been already paid for the difabled
Part, they only compute what Damage he fuffers
during hisSicknefs in refpeft of fuch Work, as he
could have perform'd, though maim'd in Body^
if well in Health. And they think he may fairly
demand fo much for eveiy Day of his Sicknefs, as
his daily Wages had been for
watching a Cutumer
Garden. But becaufe it is a different Thing, whe-
ther a Man lofes a Hand, or a Foot; whether
enjoin'd to pay him twenty Shekels.
As to the Point of Pain.y if a Man, for inftance,
had burnt another, although in the Nails, where
no Blifter follows, they confider'd how much a
Perfon of that State aiic^ Fortune would have taken
to fuffcr voluntarily fuch a Pain. For one may
find a wealthy or a nice and delicate Perfon, who
would not be hired at any rate to endure a flight
and moderate Smart; and at the fame time one
may light on a poor and hardy Labourer, who
would be content to undergo fome fliarp Degree
of Torture for the earning of a Penny. Farther,
in rating the Pain, they proceeded thus; they fup-
pofed, for inrtancc, that a Perfon of that Condition
was condemn'd to have his Hand cut off, and then
they confider'd how much he would give to lofe
the ufual Wages or Hire receiv'd by Men of the
fame Calling. But if he is maim'd in a Limb, or
has loft a Hand, SatisEiftion being
already made
him for that Lofs, or what they call Damage, be-
ing before difcharged, as to the bare
CeJ/atiou
of
his PFork, they then confider him as a Keeper of
Cucumers, and computing the Pay generally al-
lowed for this Work, order him fomuch foreveiy
Day of his Illnefs. In like manner, if he has loft a
Legj they confider him as a Centinel or Watch-
man at a City Gate; if an Eye, they fuppofe him
to work at turning a Mill
j and fo agreeably of all
other Hurts and Mifchiefs.
Laftly, In rating the Affront, or
Difgrace, they
confider the Condition and Degree of both Parties.
Since an Affront is much more provoking from a
his Hand, rather by fome eafy confuming Applica- mean and vile Perfon, than from one of Qiiality
tion, than by the violent Stroke of aSword
;
andfo or Power; and fince the fiimePiece of Difrefpc6t
much the Party, from whom the Hurt was receiv'd, may be light and inconfider:ible to one of vulgar
was bound to give him on Account of the
/<?/''.
Condition, and yet be heinous and intolerable, if
Concerning the Cure, they obfcrv'd thefe Rules
:
offer'd to a Man of Hoijour. And here we may by
If after the Cure perform'd, any Sores or Tumours the bye obferve the Diftinftion added, concerning
arofe, in cafe it appear'd that the former Wound theP/^f<? or the Scene of the Aftion, which fome-
* The Revenger of Blood was evidently the next Heir, or neareft Relation of the dead Perfon. See Mr. Le C/i"v's Notes.
The Author
quotes Horn. OdyJT. 1. i 5. 1. 272. & Tacit. German, c. 21. See alfo Mr. Hertiui'i DiiTertation, entituled, tie
H,xredeOcciJtVind:ce,
in Tom. III. of his Comments, and fmall Trails, isfc:
7 Certainly fuch a PermilEon can't be allowed under the Goipel. See the Interpreters of Matti!>. v.
3 8, (sfc.
^ Com^?iKTacitus
German, c.21. Homer.
OJyJJes, O. v. 272.
b
Confer. 1. 13. frin. D. ad\. Aquil. 1. 7. D de
hii qui dcjec. vet
effud.
^
\n Babnkama, c. 8. f. I.
^
Conf. 1. 5. frinc. Js' f i . D. De injuriis. Where fmce there is this Difference made between Verkratio and Fuljatio, thai
ths former is ztiith, and the latter zvithout Pain, it feems to follow that even Pain may fall under Valuation.
4
G
g
times
2 2 2 Tfjat no Man he hurt : Book llf.
times
very much varies this Point. Thus if a Man the Inheritance, falls under that kind of Damage^
{liding
down from the Roof of aHouie, fhall hurt which Men are faid to cauie only indireSlly^znd
by
one that pafTes by, and at the fame time affront
Confequence. For as to the direl Crime of Adul-
him,for
inlbncc,by maliing the Dirt fall on him, tery, that does by no means belong to fccuniary
he fhall be refponfible iorlY^c Damage or Mi/chief,
Damage. On this Pomt Z/V^fcr obfcr\es that Gra-
not for the Ignominy. Thus much we have ga-
tins is indeed in the right, when heafrerts,thatthe
ther'd from the Jeiuifi
Lawsj and on the fame
Husband ought to be fecured from the Burthen of
Head the Reader may confult the Roman; parti-
keeping the adulterous Offspring : But that it will
cularly,
/ ult. D. De his qui effiiderint vel dejec. 6?
bear a Diipute, whether Reftitution fnould be made
/.
3. D. Si quadrupes. Where we mull take no- to the Legitimate Children for what they iufter by
tice, that when 'tis faid Scars and Deformity are fuch a Partner in the Inheritance. For he fays the
not capable of being prized or rated, the Rule ' v/ill Queftion here is concern'd only about the Mother's
hold good only in the Cafe of Freemen. For llnce Eltate, to which the adulterous Children cannot
the debauch'd Manners of that Nation feta higher be admitted, but by the Ordinance and Prefcrip-
Price than ordinary on handfome Slaves,they might tion of Law. And therefore when the Law of any
confequently claim a pecuniary Satisfa6lion from Nation does thus adually allow them to ihare in
thofe who ihould rob a Slave of this Advantage, the maternal Inheritance with the Legitimate, the
by a Wound in the Face, or any Injury of that Damage here given proceeds from the Law irfclf,
kind. So the disfiguring the Face of a Virgin or and not from the Adulterers. To which might be
unmarried Woman, whofe Beauty fomctimes is added, that the Adulterers are not obliged to fuch
the bell pai't of their Fortune, may be reckon'd Reparation for this farther Rcafon, That Chil-
amongfl: Hurts requiring Compenfation. And in- dren have not a /)fr/>c7.S;^/j? to the Goods of their
deed Deformity, if very remarkable, is in general living Parents} and no Neceflity ofReparation can
a fad Unhappinefs, rendring us difagreeable to arife but from the Breach of a /)n/cffi?/g/v. Thus
others, and expofmg us to the Contempt and De- a Parent cannot be faid properly to /;//'r^ the Chil-
rifion of proud and of fatyrical Men. Yet Scars dren by pafling toafecond Mairiage, though their
receiv'd in War pafs for Marks of Honour and Hopes of Inheritance may fink confiderably by
Valour by the common Vote of Mankind'. fuch a Proceeding. But theTrath is, thelnllance
As to the Compenfation after an Aft oi Maim- alledged by Grotins abflrafts both from the Provi-
/^,
this is farther obfervable, that in fuch Cafes fions made by Civil Laws, about the Succefllon
the Limb itfelf is not properly rated or valued, it of adulterous Children to the Goods of their Pa-
being a Thing really incapable ofa pecuniary Price; rents, and alfo from the Penalties decreed againft
but theDefign of thefe Proceedings is only to re- the Adulterers, if conviftedj vmd 'tis but reafoii
pair the Damage fufl:ain'd by the Lofs, or by the to affirm with him, that the Adulterers, tho' un-
Difufe of fuch a Part, with regiud to the Diffe- convifted or undifcover'd,do really owe fuch Re-
rence of Times, of Perfons, and of Abihties -, and paration both to the Husband and to the Legitimate
whilft theJudge is fetthng thefe Points, 'tis necef- Children-. For by the End and Defign of the ma-
faryhefhould fpeak of the Members themfelves
''.
trimonial Covenant, the Children had a perfect
IX. The nextlnftance produced by Grotius ' of Right, that no one iTiould thruft new Coheirs a-
the Adulterer and the Adulterefs, who he fays arc mongll them,befides the lawful Husband of their
bound not only to fave the Husband hannlefs, as Mother. And by the fame Covenant the Husband
to the Maintenance of the fpurious Ifliie
>
but like- had a Right of refufing to maintain, not only out
wife to make good to the Legitimate Children of his own proper and feparate Goods, but hkewife
any Damage which they fliall fullain, in cafe fo out of his Wife's Dowry, the bale Progeny of his
faLfe a Sharer ihould be admitted with them into polluted Bed.
Mr. Barbeyrac'j NOTES on .VIII.
'
And the Reafon, ^vhich the Roman Lawj'Crs give, is, becaufe Liberum corpus tiullam rtcipit aftimationem, i. e. the Body
of a Freeman is not capable of any Valuation, as the Body of a Slave is ; but Mr. ^itius as well as this Author difapproves of
this Reafon, and fays, that though Freemen are not commonly bought and fold as Slaves are ; it is not a good Inference, that a
Freeman that is hurt may not reafonably require a Reparation by a certain Price of the Scars and Deformities, which are the
neceffary Confequents of the Wounds he has received. His Reputation, for example, is as little capable of a Valuation as his
Scars ; yet we allow, that a Man that is injured by Calumnies may demand, that the Offender be obliged to make a pecuniary
Satisfhrfion for his impaired Honour. Some Men indeed through a Grcatnefs of Soul, either real or afFe(f\ed, think it below
them to take Money in Compenfation of the Blows and Hurts they have received, but this hinders not, but that they have right
to require fuch a Satisfaftion, if they pleafe, and that it may be made by Money ; for as Grotius (ays, Lib. 2. Chap.
1
7. . 2Z,
Money is the common Meafure of all Things, which are profitable to Man. 1
Mr. BARBEYRAC'.f A^OT'iii' 0?/ .IX.
'
'
See upon this Head concerning the Satisfaftion for the Damage done by Adultery, Mr. Placette'i Treatlfe concerning Re-
ftitution, 1. 3. c. 12, 13.
^
Mr. Thrmajita m his InJIit. Jurifpr. Div. 1.2. c.
J.
5- 50- fays, that the Reafon produced here by our Author, taken
from the Contraft of Marriage, is far fetched, and agrees not with the Nature of Contrafts in general ; for ( as he adds ) all
Contracts of Marriage are made beUveen the Man and Woman only, and no ways include the Children (fttnt extra pa^a ) but
our Author affirms not that Children are not comprehended in the Engagement of Marriage from whence they proceed, and
which were made before they wre brought forth into the World, but fays only, that by virtue of the End of Marriage-Contrafts
the Children have a Right to believe that no Perfon may dif.ippoint them of their Hopes. Now it is certain, that if the Fa-
ther or Mother had not committed Adultery, the Portion of the Legitimate Children out of the Goods already gotten, h.id
been much greater ; fo that all the Difficulty which remains is about the Goods which the Father or Mother may get after the
Birth of an Illegitimate Child. But however uncertain the Gains are, the lefleningof the Inheritance of the lawful Children is
not lefs real, nor a lefs neceflary Confequent of Adulteiy, feeing they are already gotten ; for the Reparation of the Damage mud
be made firft. And it imports, that the Damage proceeded immediately from the Will of the Father
( which is another Reafon
oiThomaJius's, ) for the Father's Will could not have afted without an Objeftion propounded to it.
Statius,
Thetaid. 12. ver.
565.
ffn^;nm
iticlyte Thefeu, 'Brv/^Thefeus, they were Men like all before.
Sanguis erant omnes, eademque in Sjdera, eofdem And human Souls in human Frames they bore,
SortitHS animarum, aiimentaque vejtra (reati. With Tou to take their Parts in earthly Feafts,
With you to climb to Heaven, and fit immortal Guefts.
Z
II. For
Chap-
H. hy Nature
Equal
^ 2 fi
II. For the better underftanding this ^;m///y a- not only when a Man
compares
himfelf with
mongftMen, we may obferve, that Mr. IMbes
"
others, but when he
compares
others imongft
reftrains it to a Parity ofStrength, and ofother hu- themfelves, and is not
conceni'd
as to
his'own In
man
Abilities which attend a ripe and pertcft Age
j
terelt, which fide cai-ries the
Advantage
Nor do
and would from hence infer, that all Menhave good we always favour and
commend
him
who con-
caufe naturally to fear each other '. For he indeed fpires with our own Thoughts
and
Defigns
but
can llrike no Terror into me, whofe power reaches whom the fair Contrivance and the o-ood
Succefs
not far enough to hurt me. But now amongft ofhisProje6t, entitles to our
Approbanon
Andal-
Men, he who is interior to another in bodily
thoughfiichisthenaturalTcmperofMin
focreedv
Strength, may either by treacherous Contrivance, is he of Eftcem and Applaufc, that every one dii
or by Art and Dexterity, take away the Life dains to be upbraided with Folly or
Mmpnidcnce
of the ftouteft MortaP. Since therefore the and is exceedingly
incens'dagainft
thofe
"hoboaft
greateft of natural Evils which can proceed from of much larger Talents,
much higher
Attainments
human Power, is Death, which any grown Perfon is than his Neighbours
j
yet it does not follow hence
able to bring upon another
>
fince thofe may be that no one allows another to be wifcr than himfelf
tei-m'd Equal, who can do equal Mifchief to each For what if we fanfy two Men falling to'^pther
other, and fince to kill is equally (becaufe in the into the fame danger, one of whom by hi? dex-
higheft degree) to mifchieve, it follows hence that terous Management comes cleanly off whilft the
Men are by nature equal
\ When he fubjoins other is bafely hamper'd, and efcapes not without
that the prejent Inequality has been introduced
by Ci- confiderable Hurt or Prejudice
> will not the latter
vilLaw, he feems to me very much to have forgot- here acknowledge his Fellow to have had a bet-
ten himfelf For he had been fpeaking before ofthe ter Head-piece than himfelf.? This is indeed a part
natural Equahty of Mens Strength, to which it is of that Freedom which Men equally enjoy that a
a great Impropriety to oppofe the Unequalnefs ari- wifer Peifon fiiall have no Right to challenge the
fing from pohtick Inftitutions, which does not af- Government of one more fimple, unlefs with
fed or regard the Strength of Men, but their State his Confent
;
efpecially ifthe latter profefs himfelfto
and Conditionj does not maJce one Man ftouter than be contented with his own little
Sagacity and not
another, but greater in Quahty and Honour. Nor defirous ofthe Controul and
theDireaion ofothers,
has the fame Author much better Succefs, when he But although the
Confiderationofm^^/Strenoth
pretends ^
to difcover in the Faculties
of
the Mind is thus far ferviceable to our prefent Purpofe that
a greater Equality than that
of
Strength. Hefays in- it may reftrain one Man from rafhly infulting over
deed, that all Prudence is but Experience, which Na- another, in as much as all Contention with an Equal
ture in equaltime equally
beftows on all Men, in thofe is of dubious IlTuej and becaufe it is extreme Folly
things they equally apply theirMinds unto. Butdo not to defire the hurting another by undergoing our
we fee one Man piercing more deeply than another felves the fame Proportion of Mifchief:
Yet the
^
into the Confequenccs of things
%
applying more Equality which we are nowtreating of is of a difFe-
dextroufiy what he obfeiTes, and diftinguifiiing rent Species, and the inviolable
Obfei-vation of
with more Pcrfpicacity the likenefs or unlikenefs it is in the higheft degree
conducible
to thccom-
ofCafes and Circumftances? And hence it frequent- mon Benefit and Intereft of xMankind. Andhere
ly comes to pafs, that of two Men who have been as in all other things, may
we juftly admire the
employ'd an equal Time in the fame Bufinefs one wife Contrivance of Nature, that whilft fhediflri-
Ihall grow eminent for Management and Addrefs, butes amongft Men the Goods of the Body and of
whilft the other's natural Heavinefs fhall be little the Mind, by unequal Parcels and
Meafures fhe in-
amendedby fo long a Courfe and Experience of Af- troduces this general Equality, to form an agreeable
fairs. Nor does the great Difparity of Mans Pru- Harmony amongft all the other Varieties and Dif-
dence Arifc only
from their own
falfe andovenveen- proportions. For as in well order'd
Common-
ing Conceit
of
theirparticular Worth
; every one think- wealths, one Subjeft may exceed another in Riches
ing himfelf to have a higher degree
of M^ifdom than or in Honour, but all are equal Sharers in thecom-
the Vulgar; that is, thanall,except a fe'w,'whomby mon Liberty; fo under this Regulation ofNature
Fame, or
for
concurring with
himfelf, he is wont how much foever a Man may furpafs his Neitrh-
to approve and admire. For this Difparity appears bours, as to bodily or intelledual
Endowments,''he
Mr. B A R B E Y R A cV NOTE S on . 2.
_
In the Original this Pangraph is full of Miftakes, Omiffions, and Superfluities, which fometimes render the Difcourfe very
Mltncate
;
I have endeavoured tounlold it, and reflify it, as well as I can, by following the Notions both of the Author and
Mr. Hohbe!, whofe Principles he recites with all Exaftnefs.
'
* The tf//, even in the laft Edition in 1706 hath, impudentiam, but doubtlefs it is a Fault in the Print, for imtrudentiam
leems to be the true Reading.
'^
J
Mr. r///W makes our Author fay that the natural Equality of Men, or the natural Equality which they have one to ano-
1 T^u r
'
"/]l';^,^^^'''S'=
'
'^^'''^ Equality of Strength.
2. Inequality of the Goods of Nature, and Fortune.
3- ^?^.*^'"na'^""l Obligations; but he miftakes our Author's Senfe, for after he has rejefted the Opinion of Mr Hobba.
Who mfifts upon an Equality purely phyfical, vix. of Strength and natural Faculties, he confines himfelf to the Confidera-
tion ot our moral hquahty which he calls an Equality of Right, and he fuppofes to arife from our Conformity of Nature ;
Which is made clear by thefe Words of our Author : " Although Nature has beftowed feme excellent Qualities 'of Bodv and
Mind upon forae, which fhe denies to others, yet all are obliged to obferve the Maxims of the natural iuw one to another."
Tie Che, CI. f.
3.
Seneca delra,
1. i
.
c.
4.
There is no Man fo contemptibly weak, who may not hope forae way or other fo wreck his
^T"o^ ver
6^^
^"^" breathing. We are all ftrong enough to do Mifchief. -^
It is the Argument of Pallas in FirgiPs
Totidem nobis animaq; manufq; Our Hands are equal, and our Lives the fame.
"
Leviathan, c.
13.
c
See the Earl 0^ Clarendon's Survey of the Leviathan. Lowde on the Nature of Man, tap. 5.
is
226
That all Men are to le 'accounted Bo
o
k IIL
is ftill obliged to pay all natural Duties, as readily ligation is able to make up to us fome other way
and as fully as he expefts to receive themi nor da what we lofe by being more juft than our Neigh-
thofe Advantages give him the leaft Power or Pri- hours. But our Obligation to the Praftice of
vilege to opprefs his Fellows. Nor on the other natural Duty and Right, although impofed by the
fide, does the bare unkindnefs of Nature, or ofFor- fupreme Lawgiver, does thus far agree with Obli-
tune, fet a Man in a worfe Condition than others, gations of commonBargains and Covenants, that fo
as to the Enjoyment ofcommonRights. But what- foon as one Perfon recedes from it
',
he can no longer
ever one Man requii-es or expefts from others, the require the fame Offices from another
;
and be-
lame may others (all Circumftances being alike) fides, the other Party does hence acquire a Right of
demand from him >
and the fame Judgment one de- compeUing him by Force to make Satisfaftion.
creesagainft another, he is obliged in like Cafe to Though the Genius of Civil Society makes it ne-
fubmit to himfelf
* *.
On this Account we can ceflary to abridge and allay this Liberty adhering
by no Means admit of Cwro's Rule, which he lays to a State of Nature, for the fupport and main-
downin his third Book of
Offices j
Lex
ipfa
nature, tenance of Government and Peace.
&c. 'the Law
of
Nature itfelf^
whichpreferves and IIL Other Reafons there are popular and plau-
holds together the commonProfit of
Mankind^ does de- fible, which might give us no little Affiilance in dif-
cree, that things necejfary for Life and Suftenance covering, and in illuib-ating this Equality. Amongft
may be transferred from
an idle and
ufekfs Perfon,to which this is not the leaft confiderable, that we all
a Man of
lVifdom,Goodnefs,and Falour,who^J]jould derive our being from one Stock, from the lame
he be fiiffer''
dtoperiJJj^ would exceedingly prejudice the common Father of human Race. On this Con-
Publick by his Death\ Much more unworthy of fideration Boetius checks the Pride of infulting
Approbation is that Saying oftheyf>mc(iw, record-
Nobility: /. iii. metr. 6.
ed by Montaign
^
who coming to Roan in the Reign
oi Charles IX. and being ask'd what he obferv'd
^idgenus
^
proavos jlrepltis?
that was fingular in France, anfwer'd that a- Si primordia
vefira,
mongft other things, he could not but wonder to ^utoremq; DeumfpeSias,
fee fome Perfons abounding in all manner ofPlenty,
Nullus degener extat,
and others opprefs'd with the moll: grievous Want,
Ni vitiis pejora fovens^
begging at their Doors, and not rather choofing to Proprium deferat ortum.
invade and pillage them for their own Support.
For as thofe who excel in the Goods ofthe Mind, Fondly our high Defcent We boaft;
of the Body, or of Fortune, ought not to treat If whence at firft our Breath we drew.
Men of lower Condition with Haughtinefs and The common Springs of Life we view,
Infolence ;
fo neither ought thefe to envy or to The airy Notion foon is loft,
rifle their Superiors.
And this Equality we may call an Equality
of
Th' Almighty made us equal all
:
.^/^/^/j the Principle from which it fprings is this. But he that flavillily complies
that the Obligation to a focial Life equally binds To do the Drudgery of Vice,
all Men, in as much as it is the infeparable Com- Difowns his high Origind.
panion ofhuman Nature, confider'd fimply 2sfuch. Mr. Itchiner.
Wherewe may obferve farther, that between Ob-
ligations enjoy'd by a Superior, and thofe which Farther, that our Bodies are all compofcd of the
arife from mutual Compaft, there feems to be this fame Matter, frail and brittle, liable to be deftroy'd
Difference, that the latter immediately ceafe to by a thoufand Accidents of Mifchief We all owe
a Man, when the other Party hath broken the our Exiftence to the fame Method ofPropagation,
Agreement } whereas the former may ftill engage us weare all by the fame Degrees fafhion'd and com-
to fomePerformances towards aPerfon who is want- pafted in the Wombof our Mother ; and the No-
ing in a natural return ofDuty. And the Reafon of bleft Mortal, in his Entrance on the Stage of Life,
this is, becaufe the Author and Impofer of the Ob- is not diftinguifh'd by any difference of Pomp or of
* Here we may apply the Determination of the ^5OT(7 Lawyers, ^od guifq; Juris, kc. The fame Law which we ufe
againll others, we Ihould fubmit to our felves,
Digeft. Lib. II. Tit. II. for the chief part of Equity is Equality, Sen. Ep.
XXX. as alfo de Ira, lib. i. c. 14. Phtsdr. 1. i. Fab. 26. Diod. Sic. 1. 13. c. 30. Eurip. Phanijf. v. 538. ^inll.Declam.
3.
Cumberland de leg. Natur. c. 2. . 7.
5 Our Author feems not fufficiently to have attended to the Connexion oi Cicero's Difcourfe, if he imagines that the Orator
lays it down for a general Maxim, That we may always take the Goods of Fortune from them who are not fo worthy to en-
joy them as we are, as if a Perfon of great Merit had a fufficient Title and Right to ftrip a Proprietor of the Goods he is law-
fully pofTefled of ; whereas CzV^ro fpeaks only of an extraordinary Cafe, viz. in extreme Neceffity, and then, as rigid as he
feems to be, builds his Determination not upon that Right which every one has to preferve himfelf, but upon the good of So-
ciety, whofe Interell it is to preferve fuch a Perfon ; for he fays, that out of fuch a Cafe, the moft honellMan in the World,
tho' he be almoft laraifhed, may not take a Morfel of Bread from any Man, which may beofufe toothers. In a word, C/-
fero had taken fuch great Care to prevent any fuch loofe Interpretation of his Words, that it is allonifhing, how our Author
could fo ftrangely pervert his Meaning.
'
See Book II. c. 5. . I. above.
As Fhtedrus fays, I I. Tab. 26. Sua quifque exempla debet tequo animo pati. Every one ought to bear it patiently, when
Ms Example is turn'd upon himfelf Diod. Sic. 1. 13. c. 30. 'Tis but juft that a Man fhould himfelf fubmit to that Lawr
which he hath prefcribed to others. ^inSlilian Declam.
3. We muft needs think th.it every one v/hen he paffeth fudgment
on Matters, approves of that which he himfelf wou'd have done in the like Cafe. Add. Cumberland de Leg. Nat. c. 2. f. j-Sinec.
Epjft. 30. Equality is the firft part of Jullice. Euripides Phcenijf.
'Tis beft my Son to keep Equality
;
And States to States, and links confederate Wars.
The mighty Band which Friends unites to Friends,
"
B. I. C. 30.
PalTagc
Chap. II.
hy
Nature
EquaL
227
PafHigc, from the lowcft of Mankind
^ Our tao-c,ouplit i^ f^M,, ^ u ,
Growth and Nounlhmcnt is perform'd
alike,and
thV^afthifhe
bon hH?'A^''''.^'''^^^
^^^
the grols Remamders of our Food are carried into rurl
re^at^^^^^^^^
^^^^-^
thel:xmeCo>miOK Shore. Laillv. onr r if>f,o<V....^ a
5r""f?or/^er, is the
common
Proverb. For
thefimeCo;/?,
the ilime
gi
.AW. LaiHy,
ourL:fehaitens
to /- mu7
e
n^T^^^^
P-verb.
For
eneral Mark
,
Death
obferves no Cere- who conlkn
y LmXheir A !P"f
'
^^^'^^^
mony, but knocks as loud at the
Barriers of the denies his
Zn A^A.u '^''i^^''"^^^^^
Court, as at the Door of the
Cottaee
":
and after Temuer rnl^r if
m'T'/
'' "^ ^hisiiifolcnt
Death, our Bodies are refolv'd
into^ the fome Durt thoSonr h
^'"'^''SMy difpleafe
and
provoke
and Corruptions
Befides, wife Men
'.^e^re
'
of^Sfommonp'^"
T""^''?"^"'^'-^^^^
fing it upon our
Conllderat.on,
that we are alike
ob-
ReSwrch
cttS^./^
was a manly
and
gallant
noxious to the Sports ofFortune, tothe
endleisva-
^osolT/Zf..^^-^^^^^^
netyofDangers'orMifchances/orrathe,Xtl^
Tr^I?
Z!f^^^r
'^7^^
^
divine Difpolbrof all Things
enfures no
Maninhis
mI^ TfTtfLf'^^^^^^
prefentState,ormthePonbffionofunfhakenFel-
fiZls'"
llfZce^^^^^^^^
city
:
But according to the fecret
Counfels of h s dST^^ ^n ,W
^^'1'
""'
'^"^^
^P'^'^^
a Contra-
Providence, expofes dn ers Men to
vari^isChan^e
^TotZ-V T u'
'^'^'''^^^
'"
^Y
own
Cafe,and
and Troubks,
i if he pleafed hnnfel
^Sg
^nmrv
ird/menr^
"7''^^^
J^^""^''
^ ^ "'^J-
Poor out ofthe Duft, and cafting the High dofn to to evLl
"
vvHl
""^'
'''^^l
'^' ^^'"^- S'"^-
theGround.
(See (*) atthebottom
of thcP^l
)
Namre nLo. ii
^^"^^^T'^^^ed
with
his own
Our Chriftian
Profeffion fuggelts
many
MotTe
tiom with S^S'/' ^'f 'I
' 8^"^"^ ^"^1'-
tothciamePurpofc;
asthatGoddoesno
Xm Z^LTlt. ^^T'''
^ '''^''
^'''^ it follows
MenaccordingtotharNobility,
the Po^^^^^^^^^^
aSorh^^
?''rr^'y.^^^'^^"R^gl^^'
then- Wealth,^ut
according to 'their fincerep'e^y
bour is
lW
and Goodnefs.
And that at the hll Dav of Tnd7 Sl.r
^
V
Contradidion
in the
phnnell
ment,oftheDiftributionof?Wd?aLP^^^^^^
d'^^Ti^^-el^^ToTnl^^^^^^^^^
ments ,n -other Li^e, no regard will be had to thofe
why whafi
efeem
juft
fofmyfelf
^0.""./^'^"'
br7f';rW^^'''^"^^'^^^-^^^^-^^^'Sh-
unjuVoranoth.-ii!t^L?c!S':UJ^^^^^^
IV. This A>./,V, being
admitted
there
flow m^ntZ'Z?P
'^?^''^^ ^^^^^
from it fcveral
f..cepts,th!obfervaSo;orwhrch
C.ldb
Wd"^^^^^^^^^^^^^^
placeismofl
Lnifelf, that he wl^ would
uffth
haf
"^^^^^^^^^
AffiiW of others in promoting
hisown
Advfn!
ptaf^f
rytve^^^^^^^^^
^^^1^%
{viz. Laaantiu! Inji. Div. I. ?. c. 2^ ) NihUfl^Llr
^'!''<^''^^"g'.'he Remarks ofa judicious
ancient
Chriftian
Do<?>nr
ing pndifed by ev/ry one, beLmes
lirtSnfe
-^'^
^"
^'^g "
conformable
to the
Rules of WifdZ;
"vhich bT:
4/S wS^^^^^^^^^^ the
ancient
InKabitant.
of
fince he doth not here treat at all ofthe Right ofcommanding
oSfbu'oSy ofreiin.t!)'^"
'"^"
P'^"''
^^''-^"--'
'
Llaiidian. in Rujin. 1. 2. ver.
473.
i'ti.ii.
i'r./;^;-^^/
tUbeiui egens
^^ '^
1?1
^l'^.
P'"''^^
=>" undiftinguilh'd
Doom.
J
^f'*\J^''f,""T'^''V''='''^''"'Jiey throw;
-^
The Herald and his Trade are loft below
The
Kmgdepos'd,
forgets the
Duft he
made
;
And the rude Peafant crouds the Royal
Shade.
^^^:^'^:i;t'l^^::!:St^
Z tr^.'-i^^i:i:flV\^^^
^'^
^
"'^-' -''-7-.
the
Grave
admit, n.
of Fortune.
Sta.i.sli^,.
X. 7.2.
~!2i^Ji^I:^:j^:l^'^'
' """""' that
Death fhould take off all
Diftinft,^'
Titles hid in Duft.
MJ, Sirach. X.9, i^c
p........
,.>... ......4..
^
|p^ni2:^b^';euaTX":ht..^^
.
^^od
^'":s^^:^t:.atJ^aJl:i:::r;:^::%^
-^the
stations
ofMen. id..
next
Hour. M^;;//. lib.
3. ver.
521
"^
-^
'^^'-
^
^'" '= provided
againil the
Accidents of ths
.Tanta
eft
rerum
difcordia in a'jo, -
Hpnr^ f),.,- r
Et Jubtcnta mails bona funt, lacnm^a; feauuntur tT^
~
^ r !
fl^^'"^^
^./<.. ;.r.
/ cunaisf/rvatfor2a2oi^^^^^
I'f- ''.'c'^
'"'^'"^
'^
'"^^^ '""
^i^i^S' =
C/y?^.
<.^./.;7,/.v/^>/,,
4 PermaZtunauam I
continued
Stream no Fortune flows,
^..>.. /L.addo ;.
j/;nrr''^^'
liXcy^iiit^'^pTirrp^^^^^^^^^
^>' ^"
Which Wifdom
never trufts,
but Folly fears.
:5"'
"?^/?^T"eir,t:;o? Sh"''P'\'"
WsThyefte,,
ver.
597-
Hie ,ui donat dia4.rna front^^""''
'
fome time the
Man
got tie HoLlo^f f'?^'"l'-'
^.^oni his Mafter
Epaphroditusfold off as a Slave of little ufc In
AW made his Court to him!
^^ "'O'-'^'ng at his Trade for the Emperor i and then 'twas pkafant to f how
E^pir^jl
things
22B
That all Men are to he accounted
Book III.
things,
andvouchfafe not to others the leaft Indul-
gence }
they demand the principal Share of com-
mon Honours, and of common Goods ; though
their Right and Title is not diftinguifh'd by any
pecuUar Excellence or Advantage. For as inrai-
fing an Edifice, a Stone which by reafon ofits rough
and anovular Figure, robs others of more room than
it fills It ielf^ and upon account of its exceeding
Hardnefs, cannot conveniently be cut into Regu-
larity, and fo hinders the whole Frame of Build-
ing from ciofing together, is thrown afide by the
Workman,as unfit for all life and Service
;
fo thofe
'trXiopinlcti, thofe greedy Churls, whofe rough and
iavage Temper inclines them to heap Supei'fluities
on themfelves, and to deprive others of mere Necef-
faries, and whofe violence ofPaffion makes them un-
capable of being reclaim'd, are indeed the gi-eat Im-
pediments of Society, and the Plagues ofMankind.
Hence it is a Command of Nature's Law, that no
Man laho has not obtained a particular and cfpecial
Rigbt^jhallarrogate to himfelf a larger Jhare
than his
FelloTjus ; hutjhall admit others to anEnjoyment of
equal
Privileges with himfelf
*.
Therefore the Commif-
fioner in Liv)\ who came to treat with the common
People in Sedition, was guilty of Infolence, when
he told them, Satis fupeiq;
hiimilis
eft^
qui aqtio
jureincivitate vivit^ nee inferendo injuriam^ nee pa-
tiendo. He is humble enough^ and indeed too hum-
ble in a State^ ivho is content to live upon equal
'Terms and Rights^ neither doing an Injury^ nor ta-
king one. As if it were a hard Cafe, that the Pri-
vilege of Nobility fhould not be ftrong enough to
difpenlc with that fundamental Law ofEquity, Do
as thowwoitldjl be done by" ! On this Principle is
.... _
built that gallant Compliment of
*
Pliny to the can neither be divided, nor poflefs'd in common,
private Man ^ Galba in Tacitus ", gives Pifo an
admirable piece of Advice to the fiime Purpofe.
UtilifJImus idem ac brevifflmus
bonarum malarumq-y
rerum deleSius
eft
cogitare, quid aut volucris fub alio
principe, aut nolueris. The
beft
andthe
Jloortefi Rule
to obtain the true Art
of
good Government.^ is tocon-
fiderwhat
yowwould your
fclf
approve^ and what ycu
wouldcondemn in another Prince; andaccordingly to
praStife the former.^
andto avoid the latter. And Seneca
'
joins in the fame wife Direction
j
This (fays he)
is the Sum
of
my Advice.,
fiew
fuch Behaviour to-
wards an Inferior.^ asyou would have a Superior
fiew
towards you ^
V. The fame Equality teaches a Man how to
cany himfelf, incaiehebe appointed Arbitrator of
any Right betwixt others, namely, that he treat
them as Equals., and give no Favour or Indulgence
to one above the reft.,except fuch as can claim by vir-
tue offome
peculiar Right. For he that by a partial
Preference of one Perfon to another, violates the
Rule of natural Equality, is at the fame time
guilty of an Injury, and of an Affront, by deny-
ing a Manwhat is his juft Due, and by detraftmg
from that Worthinefs, which Nature gives him in
common with his Fellow
'. It follows as a
Corollary from this Doctrine, that if the thing
which is to be dilfributed amongll many, admit
not of a Divifion, the Perfons who have an equal
Right to it, ufe it in common, and without ftint,
if the Quantity of the thing will allow it
;
if not
that they then ufe it in a certain and hmited man-
ner, and with proportion to their Number. For
it is not poflible to find out any other way of ob-
ferving an Equality in thefe Cafes. But if the thing
Emperor Trajan., Unum ille
fe
ex nobis,
13
hoc
magis excellit atque eminet.^ quod unum ex nobis
fe
futat : nee minus hominem
fe
quam hominibus pr^-
effe
meminit. He thinks
himfelf
one
of
us., and 'tis
this makes him more our Superior., that he paffes
in
his own Judgement for
our Equal., and remembers
himfelf
to be no lefs a Man than the meaneft
SuhjeEl
whom he governs. For that excellent Prince,
when he accepted the fupreme Command, had pro-
mifed that private Men fhould find him fuch an
Emperor, as he himfelf defired to find, whillt a
then the ufe of it fhall either be taken by turns
*
%
or if this Courfe too fail of Succefs, and if
likewife one of the Contenders cannot give the
others an Equivalent to fecure to himfelfthe whole
Enjoyment ofthe thing defired, then one fliall carry
it from the reft, by the fair Decifion ofa Lot ; which
is the moft proper Remedy that can be applied to
all Differences of this kind, in as much as it takes
away the Notion of Contempt, by fetting all the
Parties on a Level ; and if it does not favour a
Man, yet does it not in the leaft difgrace him \
3
The excellent Saying oi Seneca to this Purpofe is very remarkable. Sic cum inferiore vivas, quemadmodum tecum velks
fu-
feriorem vivere. Deal fo with your Inferiors, as you would have your Superiors deal with you. Epift. 47.
i^ de ira, 1.2. c. 28.
Mr. B A R B E Y R A c ' i NO TE S on .
f
.
'
For as anantient Author [viz. Li-jy, 1. ^4. c.
4.)
fpeaks, ^iod lit alii liceat, tibi mn licere, aliqiiid naturalis aut pudorii aut
indignationishalet. That what is lawful for another, fhould not be lawful for you, creates a natural Shame, or a natural In-
dignation.
When Things are enjoyed by turns, the Lot mud decide who fhall have the firft Turn. Hobbes, c.3.. 17.
"
Thus the Tribune of the Commons fpeaks in Dionyfius Halicarn/iffaus,
Antiq. Rom. lib. 7.
c. 41. "With regard to the
"
underwritten Laws of Nature, O ye Senators, we demand that the People may thus far enjoy the fame Rights with you. We
*'
grant that thofe of your Number who excel in Virtue and in Fortune, ought to polTefs the chief Offices and Honours of the
"
State : But this Privilege we prefume may be fairly challenged by every Member of a Commonwealth, to be fecured from In-
"
juries, and to obtain juftice againlt thofe who offer them. Laaant. Div. Injlit. 1. 3. c. 22. He that would bring Men to an
Equality, mull take ofJ'all the \^m Humour of Arrogance and Pride ; and fhew thofe who fwell with Power and Grandeur,
that they are indeed on the Level with their moft needy Vaflals. Add. Sen. de Ira, 1. 2. c. 28.
"^
Book HI. Chap.
53.
'
See the arrogant Manner of the Satisfaftion given by the Duke of Join-jille to Marc/cote m Gramond.
Hift.
Gal. 1. 8.
"i
Hijl. 1.16. Epijl.
47.
'
Hence appears the intolerable
Infolence^of that Saying m Luca?h 1. 5.
v.
340.
.Nunquamfic cura Deorum
'''' '
.
-.-
^
.-
Sepremit, ut veftree morti veftraq; faluti,
fata vacent ;
procerum motus hac cunSafcquuntur,
Humanum paucis vivit genus.
.Heaven thinks not on the vulgar Herd,
Their Deaths to haften, or their Lives to gu.ird ;
Fortune difdains to court fo mean a Cire,
Nor lefs than Cefar is a Mark for her.
The Fate of Subjefts on their Lords muft turn.
And litt/e Mortals for the great are born.
This my Lord Bacon calls a Gfgantean Temper of Mind, ponbffing thofe great Difturbcrs of the World, who feemto aim
at nothing lefs than to lenderallMen happy or miferable, according as they appear their Friends or Foes
;
and as it were
to make all Nature bear their own Image ; which is properly fighting againft Heaven. De Augment. Scient. 1. 7.
c. 2.
s
Curlius, 1. 7. c. 6. In this hot Contention between the two Parties of Horfe and Foot, tor the Honour of carrymg their
Prince, Alexander finding it would be difficult for him to make the Choice, and that he couid not fatisfy one Order without
'difgufling the other, commanded they fliould bear his Litter by turns. '' Proverb. XVIII. i 8.
*
Plin. Panegyr. c.z. ;/.
4. ,,,,
Chap.
H
by Nature
Equal.
Hohbes
^
has
divided Lots into two forts, arbitrary
and
natural.
The former is fuch as the Competi-
tors
agree
upon, engaging to ftand to the Event,
whilft they
cannot by any Art govern or forefec
it;
and
therefore this kind of Lot, with regard to
Men,
depends entirely on meer Chance and For-
tune.
Natural Lot., he fays, is either
/;;/?
6'^/';::rc,
by
which aThing, which can neither be enjoy'd in
common
nor divided, pafles to him who flrall iirffc
lay
Hands on it with a defign to keep it> or Pri-
mogeniture.)
by virtue of fuch paternal Goods as
can neither be divided nor poflefs'd in common by
many
Children, and are adjudg'd totheFirft-born.
Yet if we accurately conlider Things, there will
appear to be no proper Lot but what we may call
arbitrary. For 'tis not eafyto aflign aReafon why
fuch an Event as a Man cannot procure by his own
Induftry, fhould give him a Right which fhould
hold good againft his Equals, unlels this Right was
ailign'd or adjudg'd to this particular Enjent., by
the arbitrary Appointment and Agreement of
Men. Thus a Thing which no one has a parti-
cular Right to claim, belongs
^
by Compaft to the
firflSeizer; becaufewhen diftinft Proprieties were
introduced, there feems to have pafs'd this tacit
Agreement amongft Men, that thofe Things which
were not peculiarly afiign'd to any Owner, and
yet could not without a Prejudice to Mankind be
always left in common, fhould be the Right of the
iirft Pofleflbr. And thus too the Right oi Primo-
geniture owes its Original to human Conftitution
and Compaift. For otherwife, why ihould the
younger Brothers, born of the fime Parents, be
placed in a worfe Condition than the eldeft, barely
upon account of an Accident or Circumftance,
which it was not in their Power to hinder ""P Now
the Reafon why thefe two Claims by Primogeniture.^
andfirftSeizrire,zre
fometimes,tho'improperly call'd
Lots., is this,becaufc they cannot be forefeenor di-
rected by any Power of human Induftiy, and be-
caufe it reflefts no real Diigrace on a Man to lofe
the Preference, for want of thefe Advantages
"*.
VI. This Rule of
(f///_>'
is likewifetranfgrefs'd
by
'
Pride.) when a Man
-
for no Reafon, or with
out fufficient Reafon,prefers himfelfto others, bear-
ing a lofty Carriage towards them, as bafe Under-
lings, unworthy of his Confideration or Regard.
How vaftly diftant this Temper is from the Vir-
tue of Generofity and true Greatnefs of Mind, Des
Cartes has moft elegantly fhewn in his Treatife
of
the Paffions.
He lays it down as a Principle,
"
that it is one of the chief Parts of Wifdom to
*'
know how and on wliat Accounts every one
(C
((
(.(.
u
(C
(C
((
(
(.i
(C
cc
(.(.
229
ought to efteem
or
difeftecm
himfelf; and fhen
he makes out, that the only
juit Caufe of ellceming
ourfelves,arifes
from the
lawful
Ufe ofour Power
o^free Choice, and from the
Command and Au-
thority which we exercifc
over our Wills- fince
befidcs the Aftions whicli
depend on
that Fa-
culty, there is nothing in us that can
properly
merit Praife orDifpraife.
Hence he
concludes^xhe
true Notion of Generofity,
which prompts
a
Man to value himfelf as h'ighly as in reafon he
ought, to confift in this, that he acknowledge
nothing to be txvXyhisozvn, but this freeDifpo-
fitionof hisWill; that he befenfiblc he cannot
purchafe Blame or Commendation,
otherwife
than by the ill or the good Ufe of this Power
i
and that at the fame time he feel within himfelf a
fullPurpofe
andRefolutionof ufing it well. Hs
proceeds to obfer've, that thofe who have fuch a
true Senfc of themfelves are eafily inclin'd to
think, that every Man judges^f his own Worth
in the fame manner, fince there is nothing in this
Notion which hath any Dependence on external
Things or Perfons. That for this Reafon they
never defpife others, but are ready to excufe their
Faults, as proceeding rather from Miftake than
Defign. Thatzs they think themfelves not much
inferior to thofe who exceed them in Wealth,
Honour, Beauty, Wit, or Learning, knowing
that thefe Advantages ought not to come into the
Account
; fo when they find themfelves poffefs'd
of the like Goods, they do not fanfy they are
much fuperior to thofe who want them. Hence,
he
fays, there is difcoverable in the moft gene-
rous Spirits an honeft Humility ; a Virtue con-
fifting in theRefleftion which wemake on the
Infirmity of our Nature, and upon theMifcar-
riages which weeither have formerly beenguilty
of, or may be hereafter, thefe being no lefs than
wefeecommitted by others ; whence it comes to
pafs, that we prefer not ourfelves to any Perfoa
living, wifely confidering that all Men have the
fame Faculty of Free-will, and may all employ
it to as good Ufe. He remarks farther, that thofe
viio entertain a good Opinion of themfelves for
any other Caufe, are not endued with real Ge-
nerofity, but puffed up with empty Pride, which
as it is always vitious, fo it is aggravated the
more, the moreunjuft the Caufe is on which the
Self-conceit is founded. And the moft unjuft
Caufe ofPride is the being proud without Caufe
>
that is, when a Man being confcious to himfelfj
that he has no real Merit which fhould entitle
him to Eileem, imagines Glory to belong to
S
We (hall make it appear in its proper Place, that this is a falfe Suppofition. See Lib. 4. c. 4. paragr.
4
Note 2.
* This Point is more largely diicourfed of. Lib.
^. c. i\. .8. iS Lib.
5. e.g. .2. iS" Lib.j. c.j. . 11.
Mr. Barbeyrac'j iVOr^ o . VI.
'
Pride taken in its moft extenfive Meaning does ^ot always direftly oppofe the natural Equality of Men, as may appear
from ^. I. Note \. All that our Author fays here refers only to Mens Reputation in general. For Pride in general ligni-
es nothing elfe than a very high Opinion of a Man's felf. See 77.' m, Obfav. 179,
&'<-.
and Thomnjius^ Injlit.
Jitriffr.
J)iv. 1. 2. c.
4.
*
When any one has lawfully gotten a Right which gives him a Preheminence above others, he ought to value and maintain
it, provided that he avoid all vain Ortentation, and all Contempt of his Inferiors. And on the other fide Inferiors ought not in
this Cafe to refiife them a Preference, but pay them the Honours which they may lawfully require, as our Author fays in his
Tre.uife of the Duties of Men and Citizens, Lib. i. Cj. . ;. Our Author cites at the bottom of this Paragniph a Paflage
out of Euripides, fhewing us, that if any one is arrived at a Degree of Diftindlion, he ought not to be proud, but on the con-
trary have the greater Affeftion for his Friends, by how much he fees himfelf in a better Condition to do them Service.
^
Iphig.
in Aulii. v.
343.
He alfo recites a Paflage out of Ltician, Tom. II. p. 14. Ed.Amft. Of Images. OijAif yo aV ^^ovnsm, &c.
No Man will envy Perfons in Authority, if they ufe their Power with Moderation. 'Tis the Abufe of Power that be-
gets Envy, Mr. Ablancourt delivers the fame. What goes before, and %vhat follows after, deferves Reading.
De Cive c. 3. f. 18, l^c. Leviath. Engl. p. 78.
J" Therefore Arijiotle fays, Brothers are equal, except tjiey diifer in Age, Ethic, 8. r.
12.
H \\
"
every
23<
That all Men are to he accounted Book III,
"
every
one that pleafes to ufurp it, and that the
tion imaginable, and inflames the Sufferer with the
'
areater ihare a Man claims of it, the greater he
greateit Violence of Anger and Revenge. For we
^ '-' ,,.-,,
iind many Perfons who will expofe their ownLife
to prefent Danger, and much more break the Peace
with others, rather than put up fuch a grating liv
"
Teally
enjoys'. A Vice fo extremely abfurd, that
**
'tis fcarce credible any fhould prollitute them-
"
felves to fuch a Bafenefs, were there not a Pack
PoHt. I. c. 2.
'
Euripid. Iphig. in Aulid. ver. 1400. Bapfa.'f'"' ^"E^Xl^cs^ &-c.
'Tis fit Barbarians own the Grecian Sway, Wife Nature made the Law ; 'twas Nature form'd
And not that Greece Ihould ferve a barbarous Lord. Them to obey, and us to be obey'd.
Panegyr. (sf
Panathenaic.
"*
Of wrhich fte Book VIIL Chap.
4.
See the firft Chapter of the Author's
Inuoduftion to the Hiftory of Europe,
OUC
Chap.
III.
Of
the mutual Duties
of Humanity,
2Q2
mit two
independent Mafters, whom'tis impoffible quality
amongft
Fellow
Subieds
onlv a<! mpor
to fervc
both at once. Whatever Inequality there- Wealth affords
Men
matter of
aftual
Hurt o?R
fore
amongft Fellow Subjefts commences, after nefit to others, on
which
Score
the
poorer f -r
'
the Settlement of the Civil State, muft take its wont to feek the Favour of the
rich
bv tl f>
Rife, either from the publick Adminiftration, on fubmiffive Methods of
Addrefs
either
t
^'^
T
account of which the Sovereign conveys by Dele- Advantage, or to fecure
tliemfel'ves
from
In
'"
gacy, to fome of the Subjeds, a command over But there is nothing in this
Civil
InequaliTvln^
others
J
or from fome certam Privilege granted ways repugnant to thofc
Precepts,
which
we h3
by the fame fupreme governing Power. But dif- before deduced from a natural
Equality
'
parityof Riches does not of it fclfcauie any Ine-
Mr. Barbeyrac'.? NOTES on . g.
' People are obliged the more to refpeft one another as Equals, becaufe they are always in an eflate of natural
Libertv A
confequently in a perfeft Equality of Right one tow.irds another
; whereas if we come to Particulars, there are divers
civ 1 ^
equalities, which let Bounds to our natural Liberty and Equality. Neverthelefs, we may obferve fome Inequality
amone P
"
pie in relpeft to their Reputation, either fimple, or with diftinftion. Simple Reputation is leffened, or entirely loft when
People violate the Maxims of Civil Right with a wilful Defign, and thereby render themfelves
worthy to be treated as the En"^
mies of Mankind. For a People that deals in fuch a manner muft be looked upon only as a Body of Thieves and Pirates 9
Lib. 8. c. 4- 5.
As to our Reputation with diftinftion, fee what is faid in the fame place at . 15, &c.
'
^^
Dererujlic. 1. 11. c. i.
''
Diodor. Sic. 1. i. c.
77.
jElian. Var. Hift. 1. 4. c. I. mentions fuch a Law amongft the-
Sardiam.
'
JEn.vi.iiio.
^
Diog.Laert. inDemocrit.
*
Lib. ^. s'cr.
535.
*
Epbef.lV. 28.
4
from
the World may think you rich, Vll
fay
you''rpoor
'y
None e'er was rich, but he who us d his Store.
life it, and ^tis your own j
but
if
you fpare
Till Death, you're only Stewardfor
your Heir. .
In my Opinion we ought not to judge more
favourably of thofe ufelefs Burthens to the Earth,
who under the Pretence of Religion ftudy only the
Improvement of a fat Carcafe, and in a lubberly
Lazinefs confume the Fruits of other Mens honeft
Labour. Zozimus the Hiftorian, though in other
things as Profane as Paganifm could make hiffli
yet has pafs'd a Cenfui'e juft enough on fome
ofthefe Monaflick Brethren
j
they abilain ({ays he)
Chap.
III.
Of
the mutual
Duties
of Humanity.
2
'it
fromla-wful
IFedlock
%
and
fill
City and Country capable
offervinp
their
Counti
'
V,r I P
'With Humeromfwarms ofMe7t^ufefulneither
for fFar,
ployments,
is an
Humility
not^ Ir
^"
h
"
7iorfor
any other Service of the Commonzvealth. Yet mendable.
And
therefore ir
^^"^ogetner com-
they havepurfuedlheirDefigns with
fo nmcbSuccefs,
ofPhiIorophyin^/;///x,
chief
mThX'
to rtpr
from
thofe times to the prcfent Age^that they have en~ peror
Adrian,
when
quitting nil
hi. H^ j
grofs'dtothemfeh^sthegreatefipart
of
the Lands and Offices, and fpending
his la?l'
feveii YeT" "T
Eptes, and under Colour
of communicatingall things Country, he left this Sentence
for his iW, "Va
withthePoorha-vealmofiredufd allothers to Pover- lies Similis,
whofe Life tvas fo many
lar lonXu
ty.
Tothele we may add luch begging Strolers, ;is he lived only Seven.
Xiphilin
^
*^'
they tell us are found amongft the Chinefi, who By thefe and the like
Methods
then may
we pro-
fight with then- Heads like Rams, till you part them mote the good of others
indefinitely
II\TZ
with fome piece ofBounty
i
or luch as threaten to neralj or
without
propofing
to
fervc'particulaff;
lay violent Hands on themielves unlefs you giye fuch or fuch a Perfon,
but'by
laying,^^
t wSe^
them what their Lazinefs craves
^ VakrmsMaxi- our
Benefits in common,
and offering
them to the
^;.juftlycommendstheCuftomoftheold.V/.^-
publickUfe^
But fon4 on this
pS w 1 h ve
hans, who as he reports the Matter,
ufed to fhut the
Curiofity
to
enquire,whether,
fiippofing
a Man
Plea of Religion a Cloak, and Shelter tor Idle-
Philofopber^.
^^^,theArtofchanging,
Jth tde
nels; thinking it highly worth their Care to re-
Trouble,themeaneit
Materials into thficheft
Me-
move by ail he Methods of Difcouragement, tals,
whether
I fay, he
oughttocommunica
te fo
"fuchafalfeanddrone-hkeSuperlbtion.
^Ub.W. nch
a Difcovery
? Andif any
oneaskfoniceaQue-
TV .u .i,
'
u A ^ r , r. r ,
wemayventuretorefolveitinthenepativc.
On the other hand, thofe worthy Perfons have fince
were
,t poffible to bring this grand Invention
beene^^rcelebratedwlththehlghertPralfes,whofe
mto
ordinary
Praftice,
Tradewouldbe
luin'd
n"
happy Parts and Study have invented new Arts, and heritances
and all kind of Riches would lofe the
Advantages ofliving
i
and then have not kept the
'"
,,,^.. ,
, , ,. ,
. ,
profitable to them. And this we may often perform.
Conceal d Virtue, or Worth, has little Advan- not only
without our ownLofs and Preiudice but
Paulum fcpultt diflat inertite
Celata virtus, L.iv. Od.
^.
tage above the dulleft Idlenefs.
Firgil has wifely placed in his
Elyfian Paradife,
Inventus qui vitam excoluere per artes,
^iifjfui memores alios
fecere merendo
".
Thofe who by Arts invented. Life improv'd,
Orbydeferving made themfelves remember'd.
Sir William 'temple
^.
Thus Antiquity advanced many
^
to divine Ho-
nours, who had rendered human Life more com-
Iikewife
without giving our felves any
Labour or
Trouble.
Todeny, ortogmdge
anotheraKind-
nefs of this eafy Nature, is juftly cenfured
as moft
deteftable
Malice and Inhumanity.
For fuch a
Power, by which we may oblige others, and not in-
jure our felves, unlefs it be on due Occafion, put
into Action and Effe6t, appears to be Fain, and only
turns to the Reproach of him that has it.
Hence it
is ufual to compare fuch unreafonable
Churls to the
Dog in the Fable,who refufed that Provender to the
Oxe's Hunger, which was fo improper to fatisfy
his own.
Therefore whenwe difpenfe this kind of
Benefits, we regard only Man in general, or the
,.'
, ,
. ,
A , r^;^,X^^-
^v,..^.^^, vvv., j>.gAiu uiuy iK/ct/-/ lu general, or th(
modious, by being the Authors of ufeful Difcove- common
Nature which we all enjoy. Thus
Ariflo-
nes, or of wile and wholelome Inftitutions " .
//^, when fome reproved him for beftowing
an Alms
Hence the i2^/;rf?ra?ofgreat Men, whilil: they are on a vicious Perfon, wifely anfwer'd, i%
tjS^o^
'
See alfo Er^mus^ Letter to Servaths, inferted in his Life, which is alfo at the beginning of his Letters. Edit. Loni. 1 642
rvJ^^'T^
^"'P'"'^"'-
f"*^'"
I""^'-':,
&c. We nre vehemently inclined by Nature to endeavour the Profit of many"
chefly by teaching tnem .ind laving before them the Rules of Prudence, and Reafons of Things. Defn. ion. & mat. 1. 3. c 8
5 See what Dtodorus Stculus alledges at the Reafons ^vhy the Egyptians worlhipped
Ifu and O/nV as Gods. Lib. I. c. i
,
1,p!w^-
'^^ ^'^^^''^
J'-*nflf
or
"l^rms our Author's
Judgment from Cicero and Seneca. Of which the former fays. Nature
KtW
"'
II
' ^ '" '^'
^T''
'\^^^"'^'"d ^^'hich we are able
;
and above all, to teach Men fome new thing, and in-
cuHoul 3 nrofi^ Z'T' Ta
'^'^
'"'^S^u
'^
^T"^
'Hemfelves. De Nat.Deer. 1. ,
.
t. .4-
To which the latter adds, The moft
cat to ^e .r. 5 ^"?WTf
""^^
If""'
"
^^''^""I'
' ""''
'f I ^"'^
'=^=P
'^ ' '"y ^'^- ^ff
^'"^ n would communi-
V thl"^' L'r Z?;S ?f7;'r
^^'
"?" ?"'^=''? '^'' I "^>^ l^^P "
f"^"" ^"d impart it to no Man, I would refufe it
S t, , 2
;r
^
w^ .; ^7 fr :'T\^ "''''"f
'
P'^^'^'^S,
which we muft enjoy alone. Epiff. 6. See SofbocUs Oed.{.
^y^x-V-y^^-Eu.H. Stepb.2.%A(o
Salmafuis-ci'ponSpartianin
Adrian, e.g.
t e
in them !t^
>'^''' ''"*<=' when any one labours to make himfelf a general Benefadlor to Mankind, others ought, as much as
f A-tn V r"'""gf
^"""^ ^ """ Attempt, or at leaft not hinder his Succefs by putting a Bar in his way thro' Enw. And
Lir\W
^^
''^^
K-''f'"-^'"\T'''^?^"-"''
"-^^y "'""^^ "f f^g
" P^blifli their Commendations, and make
for wvT
7
'"'''""^''
^'^'='1 's maeed the principal Reward of fuch as devote themfelves to the Service of the Pubiick,and
8
Set rl!!> n-r"^
r"T,''^S^l^,
^""""^ '^^''' E^^^-np'^- as our Author fpeaks in his Duties of a Man and Citizen, 1. 1
.
c.8.
,3
.
MHefm,.
Z]*;^''- -^'"'"^'VS'''
'"'"'^'*' ^^hetherChymifts may be
fuffer-din a Kingdom,
. 26, &c. where you'll find
Wides many
curious and djvertmg Things. 'Tis compofed in the Form of a Dialogue, and was printed at Hall in Saxony. A.D.
mean^s'thnr. pl'^r'^'u" ^f
^"("''^- '" ^'^-
?' ==^^- ' "^^"^^
^^1 inftrufted, and adorned Life by the Invention of Arts. He
^
ViH 7)yo^ c
,P "'^" advanced any ufeful Improvement in the World. Ser'vuit ,n he. Lucret. Lib.
5.
in ir.it.
via. uiodor. Sic.
J. 1. c.
!3, 14, i5,i5'<r.
43,
^
2g5
Of
the mutual Duties
of
Humanity,
^.
I did not relieve the Man-
Book III.
ners, hut the Man
, or as fome report it, ma-v-b^drru,
dn^i
-nUv^i^-Tnvcp.
Not the Man, but Humayiity.
But
fuppofing me to be unwilling to keep a
thincT any longer; either becaufe I am overftock'd,
or becaufe
thePolTeffion
of it isfomewaytrouble-
fome, how
barbai-ous would it look in me, not
rather to leave it
lafe and entire, that it might
prove ferviceable
to others, than to embezle and
deftroy it? The cafe indeed is otherwife in War,
where we ruin what we cannot keep, leaft the
Enemy fhould
employ it to our Prejudice.
In like manner we are to allow freely to others,
thofe things
which they call res innoxia utilitatis,
things of inmcent Profit,
or of harmkfs Ufe.
Let us
hear I'nlly fettling this Point : Ji to thofe things, fays
omht to hold in common.
Plutarch
"^
reports ofthofe falfc Accufers, who took
away Socrates his Life, " That the Athenians think-
"
ing them the vileft iVIen that lived, exprcfs'd fo
"
high a degree of Hatred and Averfion to them,
"
that they would neither lend them Fire, norfo
"
much as anfwer them when they fpoke, nor bathe
*'
themfelves in the fame Water which they had
"
ufed; but would order their Sen- ant to pour it
"
away as polluted and defiled, till impatient of a
"
State of conilant Reproach, the Wretches be-
"
came their own Executioners." In the fame
City, when Menwere condemn'd for fomeheinous
Crimes, it was held unlawful to let them light Fire,
to be in their Company at an Entertainment, or at
any part ofreligious Worfhip
'^.
When Seneca fays, IVhowillcall itaCourtcfy or
Benefit, to give apiece
of
broken Bread, an Alms
of
he, 'which Men omht to hold in common, ive may
, ~ - -,
,
, ^ -r
Jt>h to man-i Cafes
the Mruaions -which Enni.us fmall
Money, not worth keeping, or the favour
of
clL us in one Indance:
lighting a Fh-e
?
ht does by no means deny the O-
bligation that lies on all Men, freely to dilpenie
gives us in one Inftance
:
Ut Homo qui erranti comiter monftrat
viam,
^uafi Imnen de fuo
lumine accendat, facit
:
Nihilominus
ipfi
luceat, cum illi accenderit.
To fet a wandring
Traveller in his way.
Is but to light one Candle with another
:
Yet put not out your own
j
let that no left
Shine clear, and not be lofer by its Bounty.
From this one Example we may fufficiently appre-
hend, that 'whatfoever
we can part with to another.
their Kindnefles ; he only fhews how impudent
and how bafe it wouldbe for a Man to value himfelf
onfuch petit Bounty, and to expeft a Return like
fome mighty Benefaftor. For although thefein-
confiderable Offices prove fometimes ofgreatValue
and Confequence to the Receiver, yettheCheap-
neisoftheminrefpeftof the Giver, be they never
fo luckily timed, hinders them from being placed to
Account
*.
IV. For the firther Illuftration ofthefe Offices of
without any Damage to our felves, this it is our Duty Humanity, Plutarch will do us good Service, whilft
to give, though to a Stranger. Of
which kind arc
thefe cheap andcommon Benefits,
to aford Waterfrom
a River, Fire from
Fire, good Counfel
'
to a Man-
that is in Doubt or Diflrefs.
All thefe things are pro-
fitable to the Receiver,
without any Lofs or Trouble
to the Giver. Wherefore we ought both to ufe
them our
felves, andUkewife to exhibit them to the common Good.
But in regard, that particular Perfons have not much
to give, whereas the number
of
thofe that want it is al-
mofl
infinite,
in exerciftng this Duty
of
common Boun-
ty we mull have a refpeil to EnniusV wife Caution,
NIHILOMINUS
IPSI LUCEAT; ?/&^
is, we mufl
keep enough to have the Means
of
being
liberal to our own Relations and Dependents^.
Ofthefe Favours then none is to be dcbar'd,unle{s
fuch an one, as by his abominable Villany has
rendred
himfelf detefeble to Mankind, and un-
worthy
the commonPrivileges ofhis Nature. Thus
he difcouries fo admirably on thofe old 7?ow<7Cu-
ftoras of leaving fomething always upon the Table,
and ofnever putting out their Lamps. T'hefe Pra-
ctices ( i'ays he )
'
ferv'd as Leffons of
Humanity,
For neither is it lawfulfor us,when we havefatisfiei
our own Plunger, to throw away the reftdue
of
our
Provifion, nor to
ft
op up, or any way to conceal a Springy
whenwe have drank enough of the Water our felves;
nor to remove the Marks and DireSlions
of
failing and
journeying,after they haveferv'd our ownOccaf.ons.But
all thefe things are to be
left behind us, that they may
afterwards prove
ufeful
to other Men. Inlike man-
ner, it is a very unbecoming Niggardlinefs to put out a
Candle, when we have made what
ufe of
it we intended;
but weought to leave it,that thofe who come afterus may
have the Benefit of
its Light. Nay, were itpoffible to be
effeSled, we ought to lend others our Sight and our Hear-
ing, andevenourWifdom and Courage, to employ
f
of
Mr. BarbeyracV NOTES on . III.
Plato fays truly, that Counfel is afacred thing, AtjiTai j (n/(j.vh.n Ufiv yfiifJ-A hvcj. In Theagen. Tom. I. The Pytba'
goreans alfo held the fame Maxim, and obliged thofe of their Seft to give their beft Advice they could to fuch as defiredit.
See Jamblich. de Vit. Pythag. c. i8. . 85.
For according to the Maxim of *7Vrfff, 'tis by no means the part of an ingenuous Man to expeft our Acknowledge-
ments without his Merit. Nor ought we to think that we lay a great Obligation upon others by fuch a Prefent as the Latin
Poet
t
Horace ingenioufly banters. The Calabrians when they prefent their Fruits to fuch as come to vifit them, fay,
Eat, Spare not. If their Friends anfwer. We have eat enough, they fay. Take them, put them into your Pockets, they'll be
an acceptable Prefent to your Children. Ifthey reply, We are as much obliged to you as if we carried them all aw.-iy. They
again fay. If you will not take them, we'll give them the Hogs. Who fees not that they can't tell what tg do with what they
lb
prodigally give? Such Prodigality has and does make many Perfons ungrateful.
(*) Ego, CbariJiCy neutiquam officium
liberi ejfe hominis puto.
Cum is nihil promereat, poftulare id gratia apponifibi.
Ter. Andr. Aft. II. Scene I.
(f)
Von quo ntare pyris vejci Calaber jubet hofpet,
Tu nicfecijii locupletem ; vejcerefades.
Jamfatis
eft.
At tuquantumvis tolle.
Benignt
Hon invifaferes pueris munufcula parvis.
mes.
Tarn teneor doito, quamfi
dimittar
onuftns.
Ut libet ; hac porcis hodiecotnedenda relinqui
Prodigus i^ftultus donat, qiite fpernit,
3 odit,
Uacfeges
ingratos tulit, i^feret omnibus annis.
Horat. Lib. I. Epift.
7. 14,
&e.
^
Diog. Laert. 1. 5. ''O^c. i. i6. i^l.-^. Amongfl the Athenians,'^, publick Curfe was denounc'd againft him who fhould
re-
fufe to fct a Man in the right way.
'
De Invid. Sf Odio.
''
Vid. Orat. Dinarch, contra Ariftogit. Add. Sophocl. Oedip.
tyran.
V.
244, &c. Euripid.QreJi. s-.+e,
^
513.
' ^lO'Jl. Sympof L. VIL
^4.
,
theiT
Chap.
III.
Of
the mutual
Duties
of Humanity,
2
27
their
Service, whilji going to our
Repofc, we
for For tho' the
Ufe of Water k ^,,,,. i.
fome
time loje the Ufe of
thern ourfehesK
PoJJ'ef/ion of them
may no
doubt
beTZ' /
.'^^
Prometheusfm Zk, chargeth the Gods with Propriety.
On this
Account wp fin 1 17 rr
!"
^
Envy, and Narrownefs of Spirit, that they ihould ofFering
(o pay for what
Water
thev or rl^"'''/''"
relent lo highly his Aftion of communicating Fire tie
fhould
drink, in paffing
through th.n
to Mankind: "Since this could not be the lefs for try of EcIom\
However
if the Wate
'
being made publick, nor be itfelf extinguifli'd great Plenty,
what the
Current
throws
onlSVn
by lending its Light to others.
dom,
we ought freely to afford
to all fn Ar
To the fame Head belongs the
Ufe sf
running our
Indulgence
brings no
Trouble
o'r
Inconve^!
/r^j/fr, for the ordinary Occaiions ofLife. For tho' ence on
ourfelves
^"t-^-uvcni
Rivers may be the Property of whole States, or of We fee then that Duties of this kind do oripf
private Peifons, yet Humanity enjoins us to allow nally
belong
to the Law of Nature
vet 'ti. nor
the Privilege of drinking, or of drawing for other unufual
to have many of
them
farther confirmed
Lies to any one not aftually engag'd in Hoftility and
enjoin'd
by
CivilConftitutions.
Itmayno^be
agamftus. Wethink the Point is fettled withmore improper
to fet down an In(lance
or two
Solo7s
Clcarnefs this way, than if we fhould f
ly
with Gro- Law about
Wells we find thus
recorded bv PIJ
tm, that the Rtver' as a River, is the peculiar tarch
: Becaufe the Country
hath but
few Rtvers
Right
offuch aPei>ple,hutas running Water^ it re- Lakes, or large
Springs,
and mo
ft
ufe Wells
which
mains m common. Yox it fcems lefs agreeable to call have been
dug,he made
aLaw,thatwhere
there was
die fame Thing in different Refpefts, Proper and a publick
PFell within
four Furlongs,
all fJoould draw
Common than to affirm that the
Ufe
of a Thing atthat,
but when it wis
farther
o^tl^fuM
fZ
ought by theLaws of Humanity to he fi-eelyopen
afteraprivatefi-ell.
Jnd
if upon digging
tenFatZ
toall, tho the Thing itfelf may be really a Pr.- ^jep they could
find no fVair,
that tlJi they
ZTd
priety or Peculiar^. Nowto impute this zs-^Loan, fetch
from their
Neighbours to the quantity
of about
which would otherwife be lort,andwillbeimme- ten Gallons
every day. For he thought it pident to
diately
^P^'j:^
by the Springs, would look moft
rnakeProvifionagainflWant,yetnof
to encourage Idle-
ridiculoufly fordid". Thus Lr,^ argues with the nefs.
The fame Author
tells us, that /^/2
in his
Lycian Clowns in Ovid. Metam. VL
349.
Laws, permits none to borrow
Water from their
, ;j
Neighbours
but fuch as having firft dug m their
^idprohibetis aquas f uftis communis aquarum ejl,
own Ground as deep as the Clay, could find no
Neefolem proprium natura, nee aera fecit;
"
Spring."
For he would have
'thofe only come in
Nee tenues ttndas: ad publica munera veni.
for a
fhare with others, who could not
provide
for
ixn r, J r 7^^ r ^ ,
themfelves. And tht Spartan
Lcrfx^lMior
Lycur?HS
WhatRudenefi/^/.rformyufedemes,
allows a Perfon in
neceffity to Lke ufe rftlS
Whofeendlefsitorethecommon
World
upphes? Servant, the Bealt,
and even the Food of ano-
Nor L/^/j/, nor^/r did Heaven create for
one
i
ther Man".
^u m duu
Nor gentle Sti'eams : I crave a fublick Bo on.
Mr. Barbe
YRAc'j
A^Or^ o;?
IV
1
wi,-^^"[''^'""^
'"
^?r^
'^'
'^^f ^"""-T f.'^""
^^"'' '"^'^^
'' "nt^ined in the Lands of any Perfon
,
Wh.ch changes every Moment, and properly belongs to none but him who takes it up to drink
1
he ^rar^ Tranflator places the following Period from the vjori Now to Boon, becaufe he think, U ;n,nr I i j
here, at the End of this Paragraph and ,dds. This Cl.pter is one of thofe which want^ 3lieSem
asT^be
lifSrnM
by comparmg his Tranflation with tlie Original. Sa; i/^. 4. r .
5. .2.
'"'"'="1^, as may oe dilcern d
4
The Laws of divers Nations prefcribe alfo fomecimes the fame OfBces. By the Law
oiMofes the Proprietor
Lc^, viy o
10
xxm.
22. Dc.t^ X.X1V.
.9,
2,
.
was obliged to leave the Corners of his Field unreaped, and nit to glean uTtheEts fa tered
by .the Reapers. He was to leave them for the Poor and Strangers. The fame Thing he was to do with fhe Grape that re
main d after the Vintage upon the Tree, or were iallen upon the Ground; as alfo the Olives that did not fall frn^^ ^1 . T
when It was Ihaken. It was alfo allow'd to Travellers to pick a bunch of Grapes in the vinetrd
or an HofTo J i th!
^eld, provided they eat only to fatisfy themfelves. and car'ricd nothing away. L/.. de jlTat.
S G^ 16 c
6
'm Anh
JuJ. Ltb.^ c.
8. So alfo in the Roman Law it is forbid Filhers to kindle a Fire upon the Shore in the Night for fei
-S-r^L-lt-r
?;;Sealhou,dtakeufor.
Signal ofa fafe Port, and fo run .he hazLd of being call al';''-!?;;/;/;;!
,, \-i'"'S^'f^-
^"\
M
^""^
''''' ^"'",f"^'^
"^'
that we ought not to lofe any of thofe Things which we have in plenty
T
'
w7/
'^
^^" Nf/fi^"
V
^^^
r^^'* T'=
^''^
'""^''^
"^ ^ Occafions, to leave them for the Ufe of others^
^*
ItTfo.? V P-^W
.
A T'P
"^^"^'^^Gods relents it moft,
When wedeny a Stranger what is juft U Creech
iS^^'s Notes 'upoTi"
'
"
"
''
""
"'
'""'"
"" ' ^""
'
'^"'
"P^"^ ^'
"^"""S
Fruit steT/t
"(^1^"^
l'"-'
'
^'
^J-P-'"'" 1"\ "'!'"", '^^"'-"t
fibi,
mfi
derwetur, tame,, omnis ea aqua abeat, in mare
c
i/ ;f lo
'
^^
p"
f''''',l'>M"
l"^^'^ de luminc
fumi
;
Jtque cava
-jafta^
in mare fervt aquas
^
\
M-XX.
19^
compared with z Chron. xxxu.
3. See likewife Gen. xxvi. zo, zi , zz.
^
Aenophonde Rep. Lac A Stranger travelling alone, or with one Companion only, ought to have the Liberty to talle the
J-
u. CO. faocylidts,
AftJfiV Hi otxav Ji'a./, &c.
Andtr It' S'"'"'''^'l "J'i T^^^ '\'^t^ \
'^
'^' '^^ "^^^ '
'"PP^t => Wretch undone
;
And le the ihipwreck d Sailor move thy Mmd, Pity thy Foe, and fave his finking Beall
;
iun\^oM. a'
'
.'"aT'^a "^""^J'-
^^'/"'^-J-.GOD hath made us for mutual Support and Succour; and that each
Reverenni ?"f
'^"''
.^ ^^^^""^ "^hers from what he fears himfelf This is not properly Love, or any perfonal Elleem and
fimlfhM W
"tji provident Fe.ar of the like Accidents, and a religious Apprehenfon of common Dangers When we relieve a
Cw, TT\' r
j
Y^'VT"
P''^'
ou'-lelvcs. Hence in a Siege we lay our Provifion in common. Hence in a
i;WW\
of one Palfenger hath fupported the whole Company. And hence too arifeth that Afteftioij
ftnnr,;.r^
"'^
"r"
^"'"g ^'^^ Earth
f
the dead Body of a Stranger; and how hafly foever our Journey be, we never fail
Itoppmg to perform,
in lome fort or other, this pious Office.
+ qii' ti' M
" "P/'^^<='^
'"the antient Verfc of Publius Syrus : Homo, qui in homine calamitofo
eft
mifericors, meminit
Jui.
T ocetheNotesaboveon
C/&^/.
3. ii^. 2. . 23. Note9,
^
^ ^
/
I i
V. Amongfl
238
Of
the mutual Duties
of
Hummty^
Book III.
V.
Amongft the Hime Duties
of
Humanity^ Gro- Numbere of thofe who would enter, doth not feem
/ij, L.ii. C.2.
"
reckons the granting freePaf-
a fufficient Realbn to denyPaffiigC} fince a Mul-
"
fage
thro' any Lands, Rivers, or Parts of the titude as well as a few Perfons may inofFenfively
|
"
Sea, which have fallen under our Propriety, if ufe this Privilege, and not trefpafs againft the Law
"
any have juft Occafion to dcfire it
;
as fuppofe of Nature. However, the lame Law empowers
"
when anyPeoplecxpeU'd out oftheir ownCoun- us to take Security of the Men whom we admit,
"
try, are going to find a new Seat
>
or when they to engage them to do no Damage, or to repair what
"
defn-e to trade and correfpond with a Nation they do. For the common Proverb tells us, that
'
which v/e divide from them >
or when they are Opportunity makes the thief
y
and he is a veiy un-
"
marchin" to recover what is their own in a juft wife Mafter of a Houfe, who kts info manyStran-
"
War; o?when, being at a diilance from home, gers, as to be turn'd out himfelf. Nor are there
"
they are haftening to the Defence of their Coun- wanting Inftances of feveral Cities, which have loft
"
try,' at prcfent under fome extraordinary Danger their Liberty, by unwaiily receiving too great a
"
orDiftrcfs." But we ought to allow this Point Numberof armed Guefts. And what lliould make
a fuller Difciiffion. Thus much then is clear be- us more cautious is, that few Generals defer\-e the
yond all doubt, that in cafe theRequeft be made Encomium, which tuUy
"
on this fcore hath given
by a fmall Number of Men unarm'd, and willing oi Pompey the Great, that he march''
d
his Legions
to live at their own Charge, Paflage is to be grant- thro'' Afia, infuch a manner, as to keep not only the
cd them, provided they ask it upon an honeft and Hands, but even the Feet
of fo
vaji an Army, from
ncceflliry Account. But the Cafe of great Armies committing the
leaft 1'refpafs
on any peaceful and
is not fo eafily to be decided; fince the admitting friendly Perfon.
When the Helvetians, orSivifs in
of them may create juft Fears and Sufpicions in the Gallick War, fent Deputies to Cefar, to beg a
us, not only on their own Account, but in refpeft Paflage thro' the ]?oman Province, we find Cefar
of the Pfo/j/e whither they are bound. Grotius rejefting their Petition on this very good Account,
maintains, that notwithftanding any fuch Fear, "He remember'd how the lame People had for-
their Petition is to be complied with for thisRea-
"
merly defeated and kill'd L. CaJ/ius the RofnaH
fon
;
"
Bccaufe in that grand Divifion of Things,
"
Conful,and forced his Soldiers to pafs ignomint-
"
bv which the Primitive Community was abo-
"
oufly ^o- /^clbit'^ ; and he imagined it fcarce pof-
*'
lifh'd, and diftinct Proprieties introduced, all may
"
fible,that Men who were Enemies in their Hearts
"
be fuppos'd to havereferv'd tothemfelvesfo far
"
ftiould purfuc their Way fairly, and without
Plutarch in Cim.
^
And thus Tehphus in DiEijs Cretenjts rightly accufetli the Greeks, that profefling to come as
Friends, tliey fliould give ao notice of their Vifit. Lib. z. <-.
5
. ' Pro Lege Manil. r. 1
3 .
''
Ctrfar Comment de EGA. i. CjS-
the
Chap.
III.
Of
the mutual Duties
of Humanity,
239
the
Propriety
of thofe, in whofe Territories they this Means fix the Seat of the War in our own
lie.
Asifat the firft Creation of the World, the Countiy. For what if the
other' Party fhould
Roads
had been chalk'd out immediately by the di- meet and
'
flop his Adverfary,
whilll yet in our
vine
hand, and left as univerial Benefits. A No- Borders? And I do not fee how we could blame
tion
too ridiculous to defeiTC a fcrious Rcfuta- him for this Proceeding, fince he is by no
means
tion.
oblig'dto receivethcFocintohis
ownDominions
On the other fide there have been good Argu- onpurpofetoridusof
theBurthcnandoftheTrou-
ments ofter'd, to evince that this
*
Liberty
of Paf-
ble. It feems therefore the ilifeft way of aclintr
in
fage
for an Army of Strangers is not owing to a this Cafe, if we can without
anyconfiderablel^-c-
mere natural Right, without any Compad or Con- judice to our own Affairs, to deny the Enemy
cefTion
intei-vening
;
cfpecially when the Cafe is, PafTage, and aftually to oppofe him, if he endea-
thnt an Enemy to ibme of our neighbouring States vour to force it without our Confent. But if we
dcfircs leave to carry his Troopsagainfl; them, thro' arc either too weak to hinder his Progrcfs, or mull
our
Territories. For it feems to be part of the Du- on this Score engage in a dangerous War> the
ty,
which we owe to our Neighbours, cfpecially
PlcaofNeceflity will fairly jullify us to ourNeigh-
fiich as have been kind and friendly, not to fuffer bour
^.
any hoitile Power to march along our Country to Z'lcgkr in his Obfcrvations on Grotius afTerts, that
their Prejudice, provided we can hinder the Defigii in this Cafe no one can naturally have a Right of
with no gi-eat Inconvenience to our felves
'.
And pafling through the Lands of another, but all fuch
it is indeed one exprefs Article in mofl Leagues, Right mufl: be obtain'd by Compaft
;
juil as no
that neither Party fhall grant PafHige to the Foes Man has the Liberty of going through the Fields
of the other
''.
Nor will it folve the Difficulty, of a private Perfon, unleis fuch a Service is impo-
to fiy that we ought to allow Pajfage^ if the War fed on the Fields by Virtue of their particular
which is undertaken be ;///?
5
not, ifit be
//. For Tenure. He fays this will cfpecially hold good,
there is commonly much Time and much Thought when we have juft reafon to apprehend Danger
requir'd to make fuch aJudgment; and befides it is from fuch a Coiiceffion
*.
And this Point too he
look'd upon as a piece of Ralhneis, to thruft in our illuilrates by a parallel Cafe between private Per-
Arbitration between two armed Parties, without fons. You may have a Right ofmaking aThorough-
theirdefiringir, and to conltitutc our felves Judges fare of 7/Vm's Yard; but if you appear there of-
of fo great a Caufe. But farther, fiippofing we ten with Fire and Torches, fo as to endanger the
gnuit the Requeft, it is very poffible^ we mayby Buildings, 2l>//'s Fear cannot indeed in this Cafe
In this Ga fe the Benefit defired is not a Service without hurt ; for there is a prefent Damage, and a great hazard of a fu-
ture. For if an Army in its march ciufcs fometimes Wafte and Diforder in an Allies Country, and among their own Coun-
trymen themfclvcs, what will it do in a ftrange Nation ? Hiftory, both anticnt and modern, and prefent Tranfaftions furnifh
lis with many Examples. See Tacitus's Hift. 1. 2. c. 12. . 87. P/iit. Ptinegyr. c. 20. numb. 4. Phil.de Conines 1. 6. c. 2. Far-
ther, a great numbcrof A'Icn, which pafs through a Country, muft of neceliity make Provifions dearer, by which means the
greatcft part of the Natives fuffer ; but the Confcquenccs, which may be apprehended, are far more burdenfome, which we fhall
hereafter difcourfe of, when we come to fiipply the Defefts of the Author, according to the Senfe oiGronoz'ius in a large Note
upon Grotius, 1. 2. c. 2. . 13. numb. i.
5 This is not the only Danger. For he to whom PafTage is granted, may be overcome, and put to the worft ; and if h,
let the Caufe of making War be juft or not, he will certainly revenge himfelf upon thofe who did not keep his Enemv from in-
vading him. But fuppofing there be nothing to fear from the ftrange Troops which are fuffered to pafs, the Abettors of the
contrary Opinion agree, that many Precautions ought to be obferved. The Men that are always iri Arms are cafily tempted to
abufe them, and commit great Outrages. Moreover, if they are very numerous, and find an Opportunity to feize on aconfide-
rable Prey, how often have we fecn Armies of Strangers ravaging or feizing to their own Ufe the Eil.ites of a People who have
called them to their Succour .? nor have their folemn Oaths and Treaties been able to deter them from this foul Perfidioufnefs.
See
JiiJ}.
1. 4. c. 4. n. 5. & 1. 8. c. 3.
Tit. Liv. Lib. VII. chap. 38. and what Wittikind fays concerning the 5,rOTJ-, l.i. Annal.
What then may we expeft from fuch as are under no fuch ftrift Engagements, but only barely promifc to do us no Injury.? Fur-
thermore, as in the Bodies of living Creatures the mofl tender Parts, and fubjeft to be dangeroudy affefted, arc the inwards
called the Vitals ; fo all States almolt have this in common, that the farther Men advance into the heart of a Country, they
find it more weak and unarmed. The Carthaginians, otherwife invincible, were conquered near Carthage by Agathocles and
Scipio. Hannibal fiid he could never beat the Romans but in Ital'^. It is then a very dangerous thing, confidering the Co-
vetoufncfs of Men, which are never fatisfied, to lay open thefe Secrets to Strangers, who having Arms at hand, may make
an Advantage ot our Weakncis, and punifli our Imprudence. To this we may add, that in all States there never want Men
turbulent and dififi^efted, who arere.ady to ftir up Strangers either againft their Fellow-citizens, Sovereign, or Neighbours, as
we are told by Francis Beaucaire in his Commentaries on the French Aftairs ; and Phi!, de Comines, 1. 7. c. 7. fpeaking of the
Inhabitants of /*//"/?, to whom '^yn.'g Charles VIII. gave Liberty, when he pafled through the Kingdom of A'i?//, toconqtier
it ; and by Tacitus about the People of Lyons, Hill. 1. I . c. 65. Thefe Precautions are always neceifary to be obferved, unlefs
where fuch a PaiTage can't be prevented, for we may be often deceived, tho' we ufe all imaginable Circumfpeftion. And who-
ever allows a Stranger to enter his Country, he gets either a Mafter or an Equal. But if we have no Reafon to fear any thing
cither from him that would pafs, or from him againft whom he marches ; yet he certainly deprives his Subjefts of the Advan-
tage of the Commerce, wliich his Subjefts might have with that Neighbour, upon whom they let in an Enemy. See what
hfarthcr fpoken according to Gronez'ius, Note
9.
*
If a Prince may forbid the Inhabitants of his own Country to go armed in all Parts of his Dominions, with much more
Reafon may he hinder Strangers. See Cicero, hih.V. in yerrem, c. 3. Moreover, a private Perfon has a Right to keep any
from coming upon his Ground to hunt fo much as Birds, Inflitut. 1. 2. Tit. i . de Reriim Divif. . 12. And (had not a Sove-
reign have Power to deny PafTage to an Army of Strangers ? See
'Juft.
Lib. 9. c. 2. Tit. Liv. \.
3
7. c. 7. Crefar de BelL GaU.
1. I. c. 8.
Jo.
Fred.Gronov. As alfothe Difcourfe of Mr. Bynkerjhock, De Dominio Maris, c. 4. publifh'd A. D. 1703.
'
And therefore 'twas unrcafon.ible for the Romans in Livy, B. 21. c. 20. to defire the Gauls, that they would not grant the
Carthaginians a free PafTige into Italy, bccaufe they would thereby turn the War upon theml'elves, and expofe their o\w\\
Country to be wafted for the Security' of another, to which they had no Obligation. We have not (fiy they) reccivedany Ai.-
\-}xX3.yt{xQm.\\ic Romans, nor Damage from the Crjr/^iJg-WM///, which may oblige us to take up Arms for the one, oragairtll
the other.
i"
See the League of the iJoOTij/w with the C/7r//.?/;^i;/w/j \x\. Livy, B. 38. c. 38. and with the ^/c/m-'w, Polyb.
Excerpt. Legat. 28.
'
'Tis remarkable what Plutarch reports in his Likoi Lyfander, that when the City oi Athens w.as op-
prefs'd by the Thirty Tyrants, the Thebans pafs'd a Law, that whoever fliould carry Arms througli Ba-otia againft the Athe-
jlian Tyrants, fhould be free from the Notice of the Theban Eyes or Ears.
z I i i
abfolutcly
240
of
the mutual 'Duties
of
Humanity.
Book III.
abfolutely take awayyour Right
;
but he may hin- about their Borders
;
and when at length they were
der you from going in fo dangerous a manner, and obHg'd jull to touch on* fome part ot their Coafls,
confequently may abridge your Privilege, though they did not take occafion from the former moft in-
he cannot annul it. But as to this way of argu- human Treatment, to commit any Violence
or
infy we muft obferve, that in the Qiieftion now Trefpafs in their march ^
As to the iame People,
before us, we do not by the Liberty of Paflage Avhen Sihonl^mgoi xhc Jmorites^ not onlyrefufcd
underftand any fettled and conftant Service; but them the like Privilege, but came out arm'd to op-
only an occafional,and as it were a momentary ufe pofe them,
probably before they had icach'd his
of another's
Territories or PoflelTions, to which we Coafts, and therefore fet upon them without any
are driven, either by Ncceffity, or by the Profpeft of Reafon or Provocation, we find he was overthrown
fome
extraordinary
Advantage, when it would be in the Combat; but he feems to have fuffer'd this
Inhumanity in the other Party, not to comply Fate, not fo much for denying them Paflage, as for
with our Wants, and with our Requeft. raflily encountring them upon fo little Colour or
Examples^ which are of fo great Weight in de- Pretence. For otherwife it would have lecm'd too
terminingotherQueftions,have
little Force as to the hardtopunifh the Negleft of a piece of Humani-
Decifion ofthis. For generally as People have been ty with the ruin of a whole Nation
;
fince it ap-
llronger or weaker, they have required Pajfage
with pears that thefe Jmorites were feated without the
Modelty, or with Confidence, and have in like Borders of the
' Land
of
Promtfe^ the Inhabitants
manner granted, or refufed it to others \ ^'Jgefi- ofwhich God Almighty had by a ipecial Decree ad-
"
laus in Plutarch, when the frallians
'
demand- judg'd to utter Extirpation and Deilruaion. "Nor
? admiring, and fearing fuch Spirit and Rcfo- ferve the utmoft Rigor and Extremity of Pro-
"
lution, humbly requelkd him to pafs at his Plea- ceeding.
tt
Cm-P
VI. Amongft thefe Matters of harmlefs Profit^
the
foUowinrr Conditions:
"
That they would accufes Grotius of a Contradiftion on this Point,
'&
*'
thing of theirs which they fhould have occafion mote from
them; and yet in another place of the
to ufe." The Edomites rejefting thefe Terms, fame "Chapter he grants. That it is laivful for one
and
endeavouring in a hoftile Manner to hinder Nation to contrati with mother for all the Goods
of
their Pafiiif^e, they did not think it juftifiable to ob- one kind not to be found elfewhere
; fo
that no other
tain it by Force, but took a large Compafs round People flmll have the Liberty
of
buying them. But
^
To thefe Examples, which rather prove what was done, than what ought to be -done, we may oppofe fome Example*
more remarkable, viz. of fome People who have been badly rewarded for their Eafmefs in granting Strangers Troops to pafs
their Coimtry. So it was th:^xPhal>idas got poifeffion of the Ciftle Cadm^u, Diod. Sic. Lib.
4;.
c. 20. And the City of
Mejfina
was taken by the Captains oi Agathocles'% Army, Polyb. Hift.
Lib. I. as Gronoviui obferves. See the Difcourfe QiBud-
deui about thefe Expeditions among his SeleBa Jur. Nat. &
Gen.
30.
, . t r l r^ c
They never entred into Idumea, but marched upon the Borders of it, and bought their Provifion* ol the Idumeans. iee
Mr. Le Clerc upon Deut. 2.
9.
o , 1 . i i. ,. r 1.
9
It is a wonder that our Author, contrary to feveral exprefs Paffages in Scripture, fhould exclude the Amorites trom the
Number of the Seven Nations which God had ordered to be deftroy'd, c/z. Deut. 7. I. and 20. 17.
Neverthele.s, it is true,
that thofe whom he here fpeaksofwere not in the Z,;7i o/Z'rfl^;//-^ properly fo called, which contained all the Country be-
tween lordan and the Mediterranean Sea ; and confequently if King Sihon had granted the Ifraelites a quiet PafTage, they had
not executed the Sentcnccwhich God had pronounced upon that part of the Amorites. See Mr. Le Llerc upon Gen. 10. 16.
and
Afaw^. zi. 22.
,, ^ ,,
1
t7i m-i n a
o
See Mr. Thomafim-^ Inftitui. Jurifpr. Div. Lib. 2. c. 6. . 16. in_fine. Mr. Buddeus m his Elements, Phi. Prafl.
Part n. c. 4. f. 8. .
3,
kc.
maintains, that fuppofing the War which that Prince, who defires a PalTage through our
Country, makes, is iult and nccefl-ary j and on the other fide we have no reafon to fear any thing either from hirathatisto
pafs, or him againft whom he marches, we are under an indifpenfible Obligation to allow him a Pafl^ige
;
and his Realon is, be-
caufe the Law of Nature obliges every one to affill thofe who are unjuftly opprefled ;
and with much greater Realon ought we
to be no hindrance to fuch as undertake their own Defence. See Lib. 2. c. 5. . 6. Note 3.
above.
Mr. Barbeyrac'5 NOTES
on .6.
'
Grotius k&mi to underftand, either mediately or immediately.
This appears from the Retlnimts that he puts upon the
Traffick which he fuppofes to be allowed between the two Eftates, of which the one engages to fell the other a certain fort
ofWares which grow nowhere elfe; it being meant, as he adds, that the People who h.ave obtained the Privilege of buying
thefe Wares only, are re.idy to fell them again to others at reafonable
Rates. For granting that we have Ncceflaries of Lite
fufficient to fatisfy
Nature, it matters not of whom we have them. So that our Author's Diftmaion might have been Ipared.
Or the Troades, as we find them called in the Lacon. Apophthegm, of the fimc Author.
"
Sec Deut. ii. 6, 34.
Numb, xx, xj.i.
^
now
Ch.ap. III.
Of
the mutual Duties
of Humanity. 24.1
now by this Contraft of EngrofTment it is plain him in the
Advantage
?
Which we fhall be if
other Nations are thus for hinder'd from trading in whilil we he thus in
the
midlt
between two p'eo-
the
fameCountiy. Yet it is eafy to bring off G'ro- pie, we take care not
to let
fuch
Goods pafs from
this, bV flying, that in the former Pafl;;ge by bin- one to the other,
without
going
firil tliro' our own
(ki /'^'he undcrflands, not hindering them by virtue Hands -.
And unlcfs
this be
admitted
for
f
'
d
of fome precedent Bargain or Covenant, but himlcr- equitable Dealing,
I fee
not on
what Ground
^"
ing tli.cm by open Methods of Violence. Yet on can defend thofe
' Staples^
and
other
Rieht^" ^T'h
the Whole it muft be confefs'd, that he has not we find in fome
Countries,
by virtue
of
which F^
brought the prefent Queilion to a full and clear reign
Commodities
are
ilopp'd,
and
carried
to th
'
Decifion. For truly fpeaking, the Law ofHumanity publick Place of Sale
> andStrangers
are
permitted
does not fecm to oblige us to grant Paffage to any to traffick, not
immediately
betwixt
themfel
other Goods, except fuch as are abfoluteiy necel- but at fecond-hand
with
the natural
Subic}^
'
lary for the Support of their Life to whom they VII. From
what has been fiid,
there
inay^well
arc thus convcy'd. But as for thole who import '-trife this farther
j^z/c/F/o;;,
Whether
the La f
" '
' 1 ^ ' '
"
,
'
--- -
.. ..--,.
^j.^, ,^ ^i
j^uuiinion.'-
tov at hrlt
ceflive Gam, and an Indulgence to covetous Delires, bight it lecms
inhuman,
not to
grant fuch a Privi
I do not fee vdiat Right they have to demand Paf- lege
without
Price,
which the
Law
before-men-
{iige thro' our Coafts for this kind of Traffick, or on tion'd allows freely to all
Mankind
whatPretenfions they can claim fuch a Privilege as Now why
Cuflom fliould
be
impofed on Goods
their Due. I confefs, there Icarce appears any pro- carried over Z.^^,
there is
thismanifeftReafon
be-
bablc Colour on which we fhould deny unarmed caufe fuch heavy
Conveyance
fomctimcs
trefDafTcs
Veffels theLiberty of an open Sea, which we are on
theFieldsad)oining
tothecommonRoads-
and
Maftersof,whilft they are bound to a third People, becaufe the Sovereign
of the
Country
is put to
with whom we are at Peace. And to this Point, charge,
both in repairing
the
Ways and in fecu-
chiefly relate all thofe Authorities and Teftimonies ring the PafTcngers'.
And
farthei-
i'f it be neccf-
of Authors ufually produced in the main Difpute. fary to ereft Bridges for
thisPurpofc
it is plain in
But thus much we may realbnably do, we may Hop Equity that the Sovereign
may fet up a Toll to re-
theVeffel in fuch a Cale, and force them to leave imburfc
himfelf for
thofe
Expenccs-'
and at tl e
their Cargo in our Territories, that we may have fime time, he who docs
require
fuch Toll isobli^'d
the Benefit of the firft Purchafe. For befides that not only to let the
Bridges
iland,
but
li'kev.'ifc^to
the frequent Pafllige of Strangers may fome time keep them in conftant
Repair.
Gronus
on the
create Danger, or at leafl: may give Sufpicions to i Kings x. 19. obfeires,
that a great Toll was paid
our State, what fhould hinder us from deriving to Solomon for the
Horfes
broueht
thro' 'ludea
that Profit on our own People, which would other- from Egypt, to the
Syrians, or to ihc Hittitel- and
wife be made by Foreigners ? fince in Matters of thus too no
Frankincenfe
was
tranfported
without
Favour we ought confiantly to prefer the former Ciiftom. The like
Impofitions
arercafonableimhofe
to the latter. And tho' in Striftnefs it be indeed no Places, where by the
Induftiy
of the
Natives the
Damage to us, if we permit the free Tranfportation Roads are render'd
more fhort or more eafy
as bv
of thde Commodities, and tho' the third Party the filling up of Pits and
Ditches,
or by other ufe-
who receives them, does not properly injure us by ful Labours, for the
Convenience
of
Pafienaers
making a Gain, which 'twas in our Power to have and of Goods. Thus of old, had
anyone
cut thro'
fecured before him
;
yet fince he has no Right of the Ifthmns, and join'd the
lonir.n
and E?ean Seas
excluding us from fuch a Gain, why ought we not he might fairly have required
fome
modei'ateToll
to love ourfelves bcft,and to be before-hand with of the Merchants and Sailors;
which they
would
* As the Duties of Humanity are reciprocal, and he that has received a Benefit ought to make fome
Acknowledgment
of it
Strangers have no juft Reafon to complain tjiat they arc obliged to put their Goods to Sale in the Country,
provided they'll brv
them at a reafonablePrice, becaufe by that means they will get by them, tho' perhaps not fo much as they
would have done 1^
they had carried their Merchandizes farther. But if the Merchandizes or Wares be fuch as we are well ftored with '
A
with ourfelves, we may pofitively refufe them coming in ;
becaufe 'tis evident, that fo much Profit as thefc
Traders
make"
'
^
paffing thro' our Country, 'tis fo much Lofs to ourfelves. But if in refufing a Paflage, we deprive the Strangers
that
demand
It of that Profit they might make, without any Advantage to ourfelves, 'tis inhuman to envy others the Benefit
which w'e can't
obtain ourfelves
;
and fo much the more, if the other People to whom they would carry thcfe Merchandizes,
can't have them
anywhere elfe, but at an exorbitant Price. See Mr. Buddeus, as above, .
4, 5. Mr. Hertius in his Note upon this Place of
our Author agrees, that nothing hinders but the Right of .?r^/i/^ may take place among Citizens of the fame State
cither with
relation to Strangers, who come to fell their Merchandizes and Wares in their Country, i.e. they may not
allow'them
to fet
them to Sale but in a certain Place
;
but he does not fee why fuch Perfons as bring Foreign Commodities,
whether of their own
i^-uvjuca we are wuimg to lurniin tneie arrangers witn men 1 ningsas tney are leekmg ellewfiere,
when they have paffedour
Country, whether of our own Growth or Manufafture, at a reafonable Rate. For why fhould they go far for what they may
have near at hand ? And why fhould they not accommodate themfelves among us, who are nearer than others ?
So Ion? as they
may
make a tolerable Gain, tho' not fo great as if they were fufl'ered to go farther. So that in this Cafe it is at our Liberty ei-
ther to allow Paffage, or not, for Foreign Commodities
;
all that we are to beware of is, that in denying we do not prejudice
the
Commerce of the Inhabitants of our own Country, or bring fome other Inconvenience
on them ; but this is a matter of
Prudence only.
3 Stapula, this word comes from the German, Stapelen, which fignifies, to put into an Heap or Pile See Mr M(naze\
Etymohg.
Diaion.
fe" Marquard. de Jur. Mercat. Lib. 2. c. 6.
Mr. Barbeyrac'.? A^0r'5'o
. VII.
' in fome
Countries, they who received thefe Tolls were obliged to make the Roads fafe. So that if a Man was fobbed in the
i)ay-tirne, they
were bound to make good what he had loft. Some fay, that this Cuftom is ufed at this Day in fome Places of
tr.glaiid
and Italy.
See Furetitre'i Diaion. in the word Peage, and the Saxon Laws, Lib. 2. Art. zj.
4
not
242
Of
the mutual Duties
of
Humanity*
Book III.
not have been unwilling to give, the Voyage be- near Rocks and Quickfands, for the keeping of
ing now perform'd with more Expedition and Firestodireft Veflels in theNight,orforfcowring
more Security. And tho' this Projeft was never the Coails of Pirates. But whatever is demanded
fet on foot, Strabo informs us,
"
That the Mer- faither than upon thefe Accounts, will not admit
*'
chants o't
Jfta
and /M/j, rather than pafs out of of fo good Defence; inafmuch as the Paflag eof
*'
one of thefe Seas into the other, by the tedious unarmed Ships is plainly one of thofe harmlefs Be-
"
and dangerous Coaft of M?/<?rt, were extremely nefits which. Humanity lays in common. Yet
*'
well fitisfied to put in at Corinth^ and fo carry where fuch Pretenfions are made, the Picas which
"
their Effefts over Land >
notwithftanding the fupport them do not feem ahogether abfurd
>
as
*'
Duties to be paid there for all imported or ex- that no one ought to be blamed for making the
"
ported Goods." Another Reafon which fome bell of his Dominions, or for raifing fuch Profits
bring to affert the Equity of Impofitions on Land- from his Waters as others do from their Land.
Carriage, is this, that by fo perpetual Confluence That, fince he who enters the Territories of ano-
of Strangers the Price of Provifions is exceedingly ther, is for that time his SuhjcEl^ we may compel
niis'd. To which we may add in Conclufion, the Ships of Foreigners, whilil they pafs thro'
that a Sovereign, on this account, requires fome our Sea, to let our Subjeas have the firft Pur-
Acknowledgment from the Goods of Foreigners, chafe of their Goods; and that if we give up this
becaufe he fuffers them by pafling thro' his Ter- Claim, we may require fome rcafonable Confide-
ritories, to receive fuch Goods immediately from a ration in lieu of it. That altho' we cannot per-
third People; whereas fhould he eret a Staple, haps fet vx^^. Staple in fuch a Sea, becaufe the third
the Gain and Benefit would be fairly intercepted Nation whither thofe Ships are bound, may not
by his own Subjecls.
have the Ufe of Sailing, and therefore cannot
As to the Ri^jer Tolls, this amongfl: other Ar- fetch the Goods from us, neither have we, it may
gumcnts may be offer'd to julHfy them, that fince be, the Liberty of carrying them thither; yet it
the Water by continually preying on the adjoining ought not to be thought hard, if we put in for
Lands, and fometimes bv overflowing them, is the fome little fhare in the Gain
;
fince we permit
Caufe of no inconfiderable D;unage, for the pre- Strangers to ftil thro' our Water, with fo much
vention of which it is often neceflary to fecure them Expedition and Convenience. But upon the whole,
with Banks and other IVorks of great Charge and it mull be confefs'd, that fince this Toll by Sea
Labour ; it feems by no means unreafonable, that is, for I know not what Reafon, accounted more
towards the making up of thefe Lofles, fome mo- odious than what is demanded by Land, it ought
derate Confideration fhould be allowed by thofe to be exercifed with great Prudence and Modera-
who gain Advantage by the River, without being tion, and without the leaft Appearance of Extor-
concern'd in its ordinary Mifchiefs. It is true in the tion or Avarice. And after all there ma)^, 'tis very
Capitularies of Charles the Great =, one Order for- likely
',
be a Sovereign or two, who fhall claim
bids to take Toll in thofe Rivers, t/^z iiullum adju- an Exemption from the common Duty, and build
torium pneflatur
itinerantibus,Where no
A(]j
fiance is his Pretenfions on good Reafon; as that his Do-
gi-cen to //;fPrtj^5fn*; but this Conllitution feems minions bordering on the fime Sea*, indole it fo
to have been made in favour of the natural Sub- at both Ends, as to give him a fiiir Title to its
jefts, and there is no Necefiity of extending it to Ufe; or that on fuch a Ule of it, his Commerce
Foi-eigners
*. with Foreign Nations, and conlequcntly the Good
It is a more difficult Point, to ftatc th'e Equity and Safety of his own People almoll entirely
'
de-
of Tolls demanded in Seas. This indeed is be- pends. For in thefe Cafes it would be unrea-
yond difpute, that the Sovereign of a Sea may fonable, that to obtain the Liberty of a havm-
impofe Duties anfwerable to the Charge which he lefs Paflage by Sea, he fliould be rcduc'd to a
bellows about it
;
as for the fetting up of Marks kind of
*
tributary Condition
j
nor will any
*
Either in taking care that the Commodities be not endamaged, or for the Safety of their Perfons.
3
Our Author has a principal Refpcft here to the Streight of the Sound, for he was at that time Profcflbr at Lunden in the Pro-
vince oi Schoncn, belonging to t\\s Swede; fince the Ye3.ceo( Rotfchild.
*
This Reaibn proves nothing. The Subjefts of this Prince trade together by Land, but if they will tranfport their Mer-
chandizes by an Arm ofthe Sea, why fliotild they refufe more than other People to p.iy an Impoft to the Mailer of the Streight,
either as a Satisfaftion for the Charge he is at to fecure them a commodious Navigation, or as a fmall Acknowledgment of the
Profit they reap themfelves from an open Paflage, which fhortens their Courfe, and makes their Trade more flourifhing? And
tho' there be no other Communication betivecn the Countries of that Prince, which are above and below the Streights, this does
not at all lefTen the Right of him that has the Poffeffion of it. Otherwife it would follow, that he that hath a Country fur-
rounded with another's States, fuch, for example, as are Avignon and Orange in the Kingdom oi France, hath a Right to affert,
that the Lord of that Country which inclofes his muft fufter all Merchandizes and Goods to pafs backward and forward without
paying any Tax or Impofition, which our Author will never grant. And J can't fee what Privilege Navigation can pretend to
more, fince the Gulphs and Streights of the Sea, according to our Author's own Principle, Lit/. 4.
c. 5. . 8. belong no more
to any Prince, whole Country they border on, than the Highways taken out of his Lands. See Mr. Bynkerjhoek'i Difcourfe,
De Dominio Maris, c. 4. p. 28.
5 Suppofe that the People be fo poor, that a moderate Tax laid upon their Goods and Merchandizes which they tranfport,
vvould difable them from trading, and providing themfelves the Neceflaries of Life. In this Cafe the M.after of the Streight
will be obliged to I'uffer the Veflels of that People to paf; without exafting any Culloms of them. But yet he may take them of
Foreign Merchants for their Paflage ; becaufe, tho' it icems to be a leflening their Profits, yet they know how to indemnify them-
felves in felling their Merchandizes, without which their Fellow Citizens, to whom they fell them, muft either want fome of
the NecelTaries of Life, or buy them at an exorbitant Price. And tho' perhaps, if the Mailer of the Streight lliould altogether
refufe them a Paflage, they would be in great Want of feveral Things, yet it does not follow, that they muft therefore be exempt-
ed from fuch Cuftoms, becaufe that open Paflage procures a flourilliing Trade, and a great Abundance ofall Things they have
need of, and much more.
<
That Prince is no more tributary to the Mafter of a Streight for paying a Cuftom, than a Traveller in a ftrange Country,
paying the Toll of a Bridge or River is tributary to the Lord of the Country who receives it. It is not ( as an Englip Au-
thor, viz.. Mr. Molcjzuorth in his Memoirs affirms ) a fcrvile Acknowledgment of the Sovereignty of that Prince over the Seas,
of which the Streight is a Key. We may as well fay, that by paying the Toll over a Bridge or River, which are on the Border
of
a Prince's Country, we attribute to him the Sovereignty over all the Country.
Lib.
3 c. 12.
*
y. Lex Longobard. lib. 3. Tit. I. Leg. 2i.
onC'
Chap.
IH.
Of
the mutual Duties
of Humanity.
245
one be much inclin'd to cenfure him, if upon fo
odious a Provocation he endeavour by any poffible
Means to tree himfelf from fuch ExaftionandOp-
preffion. Nor will it render hisRefentments lels
But m Cafe the
oppofitc
Shore is pftffefs'd
hf
another People, fo that the Sea is either
held in com-
mon by both, orelfeas a middle
Point
divides the
Confines of the two
Dominions,
thou<h here
juftifi.iblc, to allcdge on the other fide, that other perhaps one of the States only may by
Compact or
Nations have agreed to pay the Impofition
:
be- ConcelTion require Toll of
Paflencrers
yet the
caufe their Support and Safety is not fo immediate- Subjcfts of the other State Ihall^y
no means
ly
concern'd in the ufe of fuch a Sea, and there-
rL..^^^,
. , ^
fore they may afford to allow the Sovereign ofthe
Sea a fharc in their Gains, without grudging or re-
ftand liable to the fame Impofition,
fiuce they fail
in their own Water
'.
VIII. Under the fame Head of common and
pining. As the Cafe is very different
%
whether a innocent Privileges Grotius
'
likewife
reckons the
liberty of Sailors, to touch and to reft a little on
any Shore, for the fikc of Health, or of frcili
Water, or on any other
Juft Account. Thus the
J'rojans complain in Firgil
^
:
^wd genus hoc hominum ? qitneve hunc iam bar-*
hard morem
Pcrmitth
f
atria ? bofpitio prohibcmur arcn^e^
Bella cient^ primaq-y vetant
confiftere terra.
Si genus humanam
i3 mortalia
temnitis arma^
At[perate Deos mcmores
fandi atque nefandi.
What Men, what Monfters, what inhuman Race
j
What Laws, what barbarous Cuftoms ofthe Place,
Shut up a defert Shore to drowning
Men,
And drive us to the cruel Seas again
.'
If our hard Fortune no Compaffion drawsj
Nor hofpitable Rights, nor human Laws
ife.
\
Man defires Way through my Grounds, becaufe
without this Privilege, he would be as it were ex-
cluded from the World, and confined to Solitude,
or becaufe he could not otherwifc carry off the
Fruit ofhis own Land
j
and whether he makes the
flame Demand, purely to fhorten his Paffage, and
impoiesaBuvthenonmy Ellate, not to relieve his
own Ncceflity, but to promote his Convenience
and Eafc.
They tell us, t\\7Cit\\e\Qngo?
JbyJJima., or E-
thiopia^ pretended of old to a certain Tribute from
Egypt -, upon account that the River Nile, to which
that Country owes its Fruitfulneis, took its Rife in
his Dominions ; and that afterwards when the 'Turks
had feiz'd on Egypt, and ufcd great Severities to-
wards the Chrifiians, the ^Ziy/z^^/iJ^ Prince made an
Attempt to have turn'd the Channel of the Nile
into the Red Sea, but without Effcft. ThefePre-
tenfions and thcfe Proceediiigs, which bear fome
Relation to the Cafe before us, we cannot but
look upon as unjuil
^.
Some would determine this whole Bufinefs by the But 'tis obfervable that they profefs'd before,
means ofCompaft and Covenant, which Method
we think not to be altogether accurate and dccifive.
For it remains ftill inQucftion, what was the ori-
ginal Reafon of thefe Covenants} and whether the
Mafterofthe Sea may deny Paffage to others, until
fuch time as they fhall enter into the fxmc Ar-
ticles of Agreement. Though indeed when fuch
a Covenant has once pafs'd without any natural
Flaw or Wcakncfs, which might render it invahd,
both Parts are obliged ftriftly to obfcrve it
>
fo
that the People whoM^cthcPaJfage defired, ought
on no account to deny the fettled Impofition, and
the Mafter of the Sea fhall not raife the Duty
higher than what has been thus eftabliffi'd by
joint Confent
*.
Niccpljorus Grcgoras
^
reports,
that the Caliph of Egypt obtain'd by Covenant of to this Speech is exceedingly wife and proper:
the Emperor of Conflantimple, Licenfe for the
Merchants ofhis Country to pafs through the Thra-
cianBofpbonis. Which Privilege was therefore fo
cafily granted at firll, becaufe it fcem'd a Matter
of little Importance. But when in courfcoftime
it appear'd to be a Point of very confiderable Con-
fequencc, it was found impoffible to revoke the
Grant, after it had been by long Cuftom enforeeid
r,nd cllablifli'd
'.
4
The Gods arejuft, and will revenge our Caufe
Mr. Dryden.
Non nos aut
ferro Libycos populare Penates
Venimus^ aut raptas ad littora vertere pncdas^
Nen ea -vis animo, 6cc.
We come not with defign of wafteful Prey,
To drive the Country, force the Swains away :
Nor fuch our Strength, nor fuch is our Defire.
Mr. Dryden.
Whence we are tatight that the Party who de-
fires this Favour, ought to appear on fuch Coafts
with moft innocent Intention, fo as neither to create
any Danger to the Inhabitants, nor any probable
Grounds of Fear. And therefore Dido's Anfwer
Res dura^ 5? regni novitas, me talia cogunt
Moliri, t3 late
fines cuflode tuerit
My cruel Fate,
And Doubts attending an unfettled State,
Force me to guard my Coafts;
Mr. Dryden.
But our Author himfelf, reciting the fame Ex.imple above, I. 2. c. 6. . 8. fays, according td the Scnfe of the Interpre-
ters or the Rom/ii! Law, that he is obliged to grant a Paflage, efpccially if he make fome Acknowledgment. SeeDige/t. 1. i J.
Tit.
7.
dc Relig.yf Sum['t.fun.i3c. Leg. 12. Let any Man then confider, whether the Confequences which our Author'
draws from the Circumlbnces he fuppofes in favour of his Prince, be well grounded ; and if this Prince has anv way to oblige
the Mafter of the Strcight to let him carry his Merchandifes free of all Toll, fince other People p.iy it willingly.
*
This Inftance, tho' our Author partes a true Judgment as to the Pretenfionsof the
Ah^ffine Prince, yet has little or no rela-
lation to the Cuftom or Toll which a Mafter of a Streight exadls of the Merchandifes which pafs through it.
9 What does this prove ?
'
But our Author clfewhere acknowledges, viz. Lib.
4. c. 5.
f
8. that whoever has fettled himfelf firft upon one ofth
Coafts of the Streight, and has taken pofleffion of the whole Streight, he that comes afterward to inhabit on the other fide is
Mafter only of his own Ports and Shore. So that in this Cafe the firft Occupant has a Right to require Cuftoms oi the VefJ;
felj of the other, as if he had both fides of the Streight, unlefs he bedil'penfed with by any Agreemeni-
Add. Bacler. adGrot. L,2. c. 2. f.
14. Lib.
4.
L. i. c. 2. f. 15.
''
JEneid. 1. ver. 542.
Fov
244
^f
^^^ ynutml ^Duties
of
Humanity* Book III.
For before we grant any thing of this kind, we found the ftrifteft Relation, and the moftfacred
ought to be well afllired whether the Perfons ap- Friendfhip
'.
But to give a natural Right to
proaching come as Friends, or as Enemies, what thefe Favours, it is requifite that the Stranger
Appearance the Fleet makeSjWhatForce and Figure be abfent from hisownHoufe on an honeft, or on
the Menbear whoare to land
j
and farther,whether a neceflary Account
5
as aUb that wc have no Obje-
they are free from all contagious Dillcmpers
*.
ftion againll his Integrity, or Chara&er, which
When there arifes no Obftacle on either of thefe might render our Admiflionof him, either dange-
Accounts, as it would be then moft barbarous In- rous or difgraceful
j
and farther, that he cannot at
humanity, to deny the Liberty of harmlefs Accefs prefent hire Lodgings for his Money. And there-
to Shore, fo thatFavour being once granted,calls for fore in antient Times, when publick Inns either
one more, altogether as reaibnable, the Privilege were not in ufe, or elfe accounted fcandalous,
oferefting little momentary Huts for prefentShelter, and unworthy to receive a good and virtuous Gueft,
which is neither any prejudice to the Shore, nor any the NecelTity of this Duty was greater and more
Abridgment of our Right and Property. Indeed ftriftly binding, than it is now in moil parts of-
Reafon forbids that any one fhould raife a
lafting
rope; where we meetwithfomany of thefe Houfes
Strufture or Edifice on the Strand, without expreis exactly fitted and furnifh'd, not only for all Ufe
Allowance from the Sovereign
', efpccially if it and Convenience, but even for Ornament and
could not be done but by endamaging others
''.
Splendor.
Altho' fome Nations have by formed Compacb Now although InhofpitaUty be commonly, and
fettled the Point of Accefs to Shores and Ports
%
for the mofl part juftly cenfured, as the true IVIark
yet this does not hinder the Hke Kindncfs from be- of a favage and inhuman Temper, yet the Point
ing due by natural Right >
fince many Duties ari- will now and then bear a diipurc, efpcciallv as to
iing from thofe Virtues which impole only an Im- the Cafe of thofe who wander into foreign Coun-
/ifr/"^^? Obligation, are frequently ftrengthen'd and tries purely on account of Curiofity ; whether or
confirm'd by civil Covenants and Laws
'.
Be- no fuch Perfons may claim free Admiilion by any
fides, our prefent AfTertion regards chiefly this ex- natural Right .
The Spartans to juftifv themfelves
traordinary Cafe, when Perfons contrary to their in driving all Strangers from their Coalls, thought
Intentions, are driven by fome Violence on a fo- this one Reafon fufficient, Lelt the Conveife of
reign Coaft
j
whereas thde Covenants which fome- Strangers fhould introduce a Coriiiption, or a Con-
times pafs betwixt Nations, ufually have for their tempt of their receiv'd Manners and Cultoms
*.
Subjeft the Point of conftant and continual Accefs In anfwer to which it is well urged by fome, that
on common Occafions. Therefore for this latter what we praftife at home is not always the beff.
Indulgence, it is on no account abfurd to require nor what others do abroad theworft; ifthcna/b-
fome moderate Confideration. But in the former m^ Cuilom be really better, it is abfurd to de-
Cafe it would be extreamly bafe and fordid, to fpile, and to reject it on the Score of its being
charge as a Debt fo fmall a ReliefofPerfons in Di- foreign. That this is the Temperand Propertv of
llrefs, and as it were to fet a Price upon our Charity. Curs to fiwn on domeftkk Slaves, and to bark at the
IX. Another Duty of //;i7//>' is the Admif- moil noble and excellent of 5'/ra^f;j. That thofe
fion of Strangers, and the kind Reception and En- Men ufually contract a Roughacls and Clownifh-
tertainment oiT'ra'veUcrs. Some ofthe Antients car- nefs of Behaviour, who never breathe out of their
ried this Point to the heighth of Ambition and O- native Air, and fee no more of the World th:-in
ilentation, conceiving the Right of Hofpitality to what paffes under their Nofe'. As to the Que-
Mr. Barbeyrac'j NOTES on . VIII.
'
See Mr. AW/'s Book called, ProbabiHajKris, (i.e.) The Probabilities
(f
the Latv, Lib. 4.
c i.
*
Sometimes, on the contrary, as our Autfior obferves a little below, one People agree with another that they will not come
into the Ports, nor on the Coafts one of another, as appears from two Treaties made long ago between the Romans and Car-
thaginians,T\\it the Romans and their Allies (hall not fail beyond thefair Promontory,un\eis they arc driven farther by a Tcmpeft,
or by the Purfuit of their Enemies ; and if thro' thefe Means they pafTed their Bounds, they ihould buy nothing, nor meddle
tvith any thing but what was either neceflary for Sacrifice, or to repair their VelTels, and fet fail again to return within five Days.
Po/yb. 1. 3.
This was their firft Treaty. 'I'he fecond was, that no Roman (hoM trade into SarJiuia or Africk ;
that they
Ihould not build any City there, nor land, unlefs to get Provifions, or repair their- Veflcls; and if they were driven afhore
bv a Tempeft, they fliould depart within five Days. Ibid.
'3
See ^. 4.
above, and Lib. 2. c. 6.
f
5- where you'll find Examples of thefe imperfeft Obligations, which have been made
perfeft bv the Determination ofthe Legiflator, who has made them effeftual by Law : As alfo, lee Lib.
4.
c. 2. below.
Mr. BARBEYRAc'.f NO tE S on . IX.
'
For the fame Reafons Lyeurgus forbad the Lacedemonians to travel out of their own Country, left they (hould learn the
bad Cuftoms and coarfe Manners of Strangers. Plut.
Inft.
Lac. See Potter\ ArchaoL Grac. 1. 4.
c. 21.
"
AM. P/in. N. H. 1. 26. c. 1.
''
Vid.1.50. D. de acq;rer.dom.
"
Ariftot. Mag. Moral \. z. 11. Of all k'nls of
Friendlhips that feems to be the firmeft which is exprefs'din the courteous Entertainment of Stringers
;
becaufe the Perfons
here havirr not the fame Ends and Interefts to propofe, cannot fo eafily fill into Contention, as thofe who are Members of
the fame State. Homer fays, the Poor and Stranger are the Care of
Jne ; and again, the fuppliant Stranger craves a Bro-
ther's Love. In Lucian [de Dea Syria) amongft the Crimes which brought Deucalion's Flood upon the World, we find thefe
which follow. They praftifed all kinds of Injuftice; for they neither kept their Oaths, nor receiv'd Strangers, nor gave a
patient
Hearing to the Requeft of the Miferable. Ofthe Humanity which the Indians fhew to Strangers, fee Diod. Sic. 1. 2.
c 42
Add.
Plalo de L. L. 1. 12. jElian (F. H. 1. 4. c. i )
recites this Law of the Lucanians, If at Sun-(et a Stranger arrives,
and
defires
Reception in a Houfe, in cafe the Matter refufe to admit him, let him be punilh'd as an Offender againll tlie Laws
of
Hofpitality.
Add. Lex Burgund. Tit. 30. f. i. Helmoldus [in Chron. Sclav. \. i. c. 82.) reports of the antient S.A;:-/, If a
Man be difcover'd to have denied Lodging to a Stranger (a Rudenefs which feldom happens amonglt them) the People join in
a Body to
pulldown his Houfe, and to ruin his Eftate; which way of proceeding is permitted by the Laws. Pbilo Jud.
in his
Life of Mcjes, fays, that Strangers have the fime Rights as Suppliants.
<
The
Chinefe
have much the fame Conftitutionsin reference to Strangers. Vid. Nieuhof. Gen. Defcript. Chin. c. 1.
'
(In Livt
1- 41 c- 24)
The Decree of the Achieans, by which they forbad the Macedonians to enter their Territories, is
U'd
exfecrabilis
velut defertio Juris Humani, as it were a deteflable Defertion of the Law of human Nature. 'Tis a Saying
*^
plriander in
Plutarch (Symfof)
Icemmend thgfe States and thgfe Magiilttes which firft give Audience to Strangers, and
then W
their own Subjcils,
^^.^^
Chap.
Hf.
Of
the mutual Duties
of Humanity,
245
ftion before us then, thus rtiuch is certaiiij that if reigners, in
thefe^ they
ought not to hinder the Spa*
our People are kindly receiv'd by any Nation a- niards
from their
Share : For Example
If
other
broad, we ought to entertain the Menofthat Na- Strangers were permitted to dig
Gold,
//;?
'Spaniards
tion with an equal return of Civility. As on the might fairly claim the fame Liberty.^
other hand, thofe who drive us from their Coails, On which Point fome have
judged it worth con-
cannot without the moft ftupid Impudence petition fidering,iiril:^whether thofe Privileges
were
"ranted
us for a more courteous Treatment. But luppofing to others, by way oiDebt, or by way offree
Gift and
that any one Nation, contented with what it finds Favour. For of thofe things which Men
cannot
at home, utterly refrains from all foreign Travel, claim from meas /nff/j their Z)p, I may be more
it does not appear what Obligation fuch a State can liberal to one than to another. And in the next
have to admit thofe who would vifit it, without a place,whcther thefe new Comers vUl behave
them-
nccefl^;ry or weighty Caufe. The Cafe is fomewhat lelves with the fame Juftice and Modefty
as the
like that of a private Man, who in his Houfe or former, who made ufe of our Goods without our
Gardens, polTefles fome rare Curiofity, or other Prejudice or Inconvenience; and whether thefe late
valuable Sight
J
fuch an one does not apprehend Gueftspropofe no other End of their Vifit.
Sup-
himfelf tied freely to let in all Speftators
j
but who- pofe I give one or two of my Neighbours leave to
ever is thus gratified either rewards, or at lead ac- come into my Garden, as often as they pleafe,
knowledges, it as an extraordinary Favour. And and to gratify themfelves with tafting my Fruit
j
this feems the more reafonable,becaufe the Grounds it may be, there breaks in afterwards a rude He-
ofprudent Caution and Sufpicion are fo numerous, tor, who is for tearing up my Trees, and would
that we may cafily make ufe of one or other of kick me out, to plant his own Body in my proper
them, to juftify us in keeping fuch Perfons at a Land; my Cafe is bad if I may not be allow'dto
diftance, as would too curioufly examine and pry fhut the Gate againft fuch an intruding Villain ^
into our Affixirs. But let others fettle this Controverfy. As to our
Therefore the SpanifJj Cafuift
^
has not made ma- main Queftion, it is look'd on by moll: as tlie fifeft
ny Converts by the Reafons he lays downtojulli- way of refolving it, to (ay, That it is left in the
fy his Countrymen in their Proceedings againft the power of all States, to take fuch Meafurcs abouc
Indians. The firlt Right on which he founds their the Admifilon of Strangers, as they think conveni-
Title, is that of natural Society and Communica- ent; thofe being ever excepted, who are driven
tion, which he draws up into this AfTertion, 'fhe on the Coafts by Neceffity, or by any Caufe that
Spaniards had a Right
of
travelling and
of
living in deferves Pity and Compafiion. Not but that it is
thofe
Countries^ provided they did the Natives no barbarous to treat in the fame cruel manner, thofe
harm, and from
this Previlige none could refirain Avho vifit us as Friends, and thofe who aflault us
them. In reply to which it is well urged, that this as Enemies
%
The free Admifilon of Ambafllidors
natural Coymnnnication does not hinder a juft Pro- is deduced from ar^Dther Head
'' *.
prietorfromcommunicatinghisGoodsbyfuchMe- But having once admitted Strangers and foreign
thods, and upon fuch Confiderations as he finds ne- Guefts, to turn them out again, unlcfs bygoodRea-
cefiary. And farther, that it feems very grofs and
fon,
is ufually cenfured as fome Degree at leaft of
abfurd, to allow others an indefinite or unlimited Inhumanity
'.
From the number of theie good
Right of travelling and liv-ing amongft us, with- Reafons, St. Amhrofe and with him Grotius^ ex-
out reflefting either on their Number,or on theDe- eludes the Cafe of grievous Scarcity arid Dearth
fign oftheir coming
;
whether fuppofing them to affliftingaPeople.TowhofeJudgmentwefubfcribe
pafs harmlefly, they intend only to take a fhort with this Suppofition, That there are flrill Means
view of our Country, or whether they claim a left, though perhaps very hard and prefling, to
Right of fixing themfelves with us forever. And fave both Natives aixl Strangers, and if the latter
that he who will ftretch the Duty of Hofpitali- have been formerly, or may be hereafter ufeful and
ty to this extravagant Extent, ought to be rejefted ferviceable to us, and offuch only
St.j^mbrofeCpea.ks.
as a moft unreafonable, and moft improperJudge of But in cafe we are not obliged to the Foreigners a-
the Cafe. The fecond Principle he lays down is, mongft us, and there be no Neceflityoftheir perilh-
7'hat it -was lawfulfor
the Spmmds to traffickwith ing, fhouldwefend them off, there feems to be no
thofe People, andthe Sovereigns on either
fide
could not Reafon why the Subjeft on their Account fhould be
hindertheirSubjeBsfromfuch Intercourfe. But here content to ftruggle with a Famine^.
Menof more fober and moderate Judgments con- X. In the fame Clals of Duties Grotius^ places
fefs themfelves unable to find out any fuch Liberty the allowing ofa perpetual Habitation to Strangers,
of trading, as Princes may not abridge their Sub- who being driven by Violence out of their own
jefts of, forthe good ofthe Commonwealth; much Country, are forced to feek out a new Seat; pro-
lefs fuch as {hall force and obtrude Strangers upon videdftill,that they fubmit to the eftablifh'd Go-
us, whether we will or no. His third Reafon is vernmcnt, and behave themfelves with fuch Pm-
this,
If
the Indians had amongfi
them any Rights dence and Decency, as to adminifter no Occafion
and Privileges
allowed in common toNatives andFo- to Faftions and Seditions'.
*
See what is faid above, L. 2. c.j. . 23. and below. Lib. 8. c. 9. . 12. Notei.
"
Framifcus a ViRoria RehSl. 5. f. 3.
^
Add the Anfwer given by fome ofthe Americam to the Spaniards, in Montaignii
Eflays, 1.
3. c. 6. ' Vid. Diod. Sic. I. I. c. 67.
'^
Add Ziegler ad Grot. 1. 2. c. 2. f 23. ^ Vid. Liv. L 2. c.
37,
38.
f
De
Offic. I. 3. c. 7. Grot. 1. 2. c. 2. f. 19.
i
Vid. Sueton. Auguft.c. \z.i^ Bacler. ad Grot. d. I. ^ Lib. 2. c 2. f. 16,
17. ' Euripides Medss..
Xf 3
S^i'i'i'. ^c. ver. 2iZ.
I
.
A Stranger fhould conform ,
Socer arma Latinus hal/eto.
In Manners to the State that entertains him. Impcrium foknnefacer ; mihi ma-nia Teucri
Conjiituent, urbiq; dabit Lavinia nomen.
So among the Articles of Peace propofed by ^neas in Vir-
gll, Mn. xii. 192. we find this for one
:
Latinus fliall the Regal Scepter bear,
Latinus firft in Peace, and chief in War.
K k
Humanity,
2/^6
Of
the mutual Duties
of
Humanity Bo o k 1 1
1^
Humanity,
it is true, engages us to receive a may be fo conveniently placed and dilpoied, as to
fmallnumberof
Men expell'd their Home, not for render them incapable of giving anyJcaloufy to the
their own Demerit and Crime
j
efpecially if they Government. Ifon the whole, it appears that the
are eminent for
Wealthorlnduilry, and not likely Perfons deferve our Favour and Pit)-, and that no
to difturb our Religion, or our Conllitution. And Rertraint lies on us from good Reafons of S tate, it
thus we fee
' many States to have rifen to a great and will be an A6t of Humanity to confer fuch a Be-
flourifhin? Height, chiefly by granting Licence to nefit on them, as wefhall neither feel very Burthen-
Foreioners to come and fettle amongll them
>
fome at prefent, nor are likely to repent of here-
whereas others have been reduced to a low Con- after. If the Cafe be otherwife, we ought fo to
dition, by refufing this Method ofImprovement. temper our Pity with Prudence, as not to put our
But no one will be fond of aflerting, that we felvesintheready way ofbecoming Objects of Pity
ought in the fame manner to receive and incorpo- unto others. Farther, fince whatever we bcftow
rate a great Multitude, efpecially if nowin Arms, on fuch Petitioners, we may juftly reckon as a
or naturally addifted to War; fince it is fcarce pof- Matter of free Bounty in us, hence it follows, that
fible, but that their Admiffion ihould highly en- they are not prefently to lay hands on what they
dano-er the Natives. Therefore every State may pleafe, nor to fix themfelves as it were by fome
'O"
be more free or more cautious in gianting thefe In- Right, in any Spot of Walle-ground they find
dulgences, as it ihall judge proper for its Intereffc among us
>
but that they ought to reft latisfied with
and Safety.
InordertowhichJudgment,it willbe the Station and Privileges we aflign them
^.
prudent to confider, whether a great increafe in the XI. The next Office ofHumanity mention'd by
Number of Inhabitants will turn to Advantage
j
Grothis, is that we allow every Man the Privi-
whether the Country be fertile enough to feed fo lege of procuring for himfelf, by Money, Work,
many Mouths } whether upon Admifiion of this exchange of Goods, or any other lawful Contraft,
new Body, we iliall be ftraitned for room
5 whe- fuch things as contribute to the convenience ot Life,
ther the Menare induftrious, or idle
>
whether they and that we do not abridge him of this Liberty, ei-
Mi-. Barbeyrac'j notes on . X."
'
SttParrhnfiana,
Tome i. p. 265, Jsfc. MdzDlkontk De confiriiendo Mi/ite, . 18. among the Sekft Difcourfes, Jar.
Nat. y Gen. of Mr. Buddeus.
'
What hath been faid may be illuftrated by thefe hiftorical Exzm^les.Latinus, in Virgil ^n. 1 1 . ver.
3
1 6. otFers the Trojans
this Condition
:
1 n- r 1
1
Eft
antiquui ager tiifco mihiproximus amni, A Traft of Lands the Latiiies have poffefs J,
Aurunci Rutuliq;ferunt, y vomere duros Along the Tiber, ftretching to the Well,
Exercent colks, atquehorum afperrima pafcunt. Which now Rutulians ^r^iJitruncans till,
Hac omnis regio bf celfi
plag'a pinea montis And their mix'd Cattle graze the fruitful Hill ;
Cedat amicitite Teucrorum, hffoederis aquas Thofe Mountains fill'd with Firrs, th,u lower Land,
j
Dicamus leges; fociofq; in regna vocemus. If youconfent the Trojans fhall command,
CalFd into part of what is ours ; and there
On Terms agreed the common Country fhare.
Mr. Dryden'.
St-ri'/wonthisPaflageobferves, from Ctf/o's Origines, that the Land here mention'd cOnt.ain"d 100 Acres. He tells us likc-
xvife, for fear we fhould think that the King was liberal of what did not belong to him, that to thofe Word? Aurunei Rutuliq;
ferunt,
we muft join mihi in the preceding Verfe ; the Auruncar.s and Rutilians having that Country allow'd them in a way of
free Stipend, or elfe being placed there by the King as his Husbandmen, to manage the Crown Lands. Tlie Story is told
more at large by Dionyf. Halicarnajf.h. i.
The Cimbrians in Tlorus (1. 3.C.
3.)
petition the Roman Senate, that fo brave and warlike a People would give them alittle
Portion of Land as a kind of Pay, promifing in return, that their Hands and their Weapons fhould be ever employ'd in the
Caufe oi Rome. But (as the Hiftorian there reflefts) what Land could the Romans give them without quarrelling amongft:
themfelves, on the Point of fuch arbitrary Diftributions ? And how could the Senate without nunifeft Injuftice difpofe of the
Property of private Men ? Bcfides, pofre'ffing fo many things as were likely to raife the Appetite of needy Strangers, they judg'd
it unfafe to admit fo ftrong and fo fierce a Nation into their Limits.
In C<efar [de B. G. 1. 4.)
the TenSleri and Ufipetes petition d in this boafting manner : That they did not voluntarily leave
their own Country to feek a foreign Seat ; that if the Romans would accept of their Servirt, they were able to iliew themfelves
no
unprofitable Friends ; only they defire fome Lands to be affign'd them, or to have the Privilege of keeping what they had
already
gotten by their Arms. The Anfwer which Caj'arknt them was to this purpofe ;
That 'twas unreafonable in thofe Mea
to invade another Country, ^vho could not defend their own. That there were no vacant Lands in Gallia
;
efpecially not to
hold fo vaft a Multitude, 'without Prejudice or Danger. Though indeed he had flill another more fecret Reafon, why he
would not have thofe new Neighbours.
, , r
1
/
In
Tacitui [A. xiii. c.
55.)
the Antibarii being at a Lofsfor a Dwelling, having therefore feated themfelves m fome Lands
bevond the Rhine, belonging to the Romans ; excufed themfelves, not altogether unreafonably, in thefe Words : That the
main part of the Land was ufelefs ; being only employ'd now and then by Chance in feeding Beafts for the Army. That the
Romans ought to refign a Place which was fill'd only with Beafts, when they might relieve the Diilrels of Men
;
and prefer
Friends and Subjefts to Deferts and Solitudes. That a: Heaven was pofTefs'd by the Gods, fo the Earth was given to Mankind
;
and what Parts were void of Inhabitants, lay in common to all the World. (Which Principle Sir Thomas Moore eftablifheth
amongft his Utopians, 1. 2.) This Meifagc deferv'd a more favourable Anfwer than thofe moft haughty Words of Avitus,'V\ii,t
they ought to fubmit to the Pleafure of their Betters. That the Gods, whofe Affiftance they now implore, had chofen the
Romans to be Commanders of the World, and to difpofe of it as they ihould think convenient, without fuffermg any other
Judces
but themfelves.
j r
r >
The Emperor Pro^aj fettled an hundred Thoufand of ^/J/^-ir;?.*' in the Roman Territories; who all proved fruitful and
quiet. But he ufing the fame libert>- ot Tranfplanting vaft Numbers from other Nations, as from the Ge-
*
Thefe Tyrants pidi, the Gautumni, the Vandals, &c. all thefe broke^their Promife, and whilft the Emperor was engaged
werefuch
as revolt- in the War ag.iinft the
*
Tyrants, wandered by Sea and Land ahnoft through the whole World, aud fpread
edfrom
the Empe- no fmall Cloud on the Glory oiRome. Flav. Vopifc.
and caufed
tbemjelves to be proclaimed Emperors by the Soldiers. See Salmafius upon the Thirty Tyrants
of
Trebellius Pollio.
So likewife in Ammianus MarceUinus, the Goths deferting their Seat for fear of the Huns, begg'd leave of Valens to fix them-
felves in Thrace, promifing to live quietly, and to lend him their Service when he (liould have occafion. Soon after other bar-
barous People put up the fame Reqneft, to whom A'd/^i granted the like F.avour, hoping that from thefe Numbers he might
draw Men for his Troops, without any great Charge. Yet this Indulgence proved afterwards his Ruin
; as tht Hiftorian de-
jnonftratei at large. Add. Socrat.
Hift. Ecclef. 1. 4. c. 28.
ther
C HA p. III.
Of
the mutual Duties
of Humanity
.
247
ther by any civil Ordinance, or by any unlaw- not Eivour its own
Subjcfts more
tlianStrano-crsJ
ful
Combination,
or Monopoly. For that as Trade as by demanding
lefs Ciijiom
of the former ^than
and
Commerce highly promote the Intereftof all of the latter, or by giving
them the Right ''oi
firli
Nations, by fupplying the unkindnefs of the Soil, Purchafe.
'
which is not every where alike fertile, and by XII.Though,as
has been fliewn,
weareo^/;>W
making thofe Fruits feem to be born in all Places in many Cafes to fell, yet as Grotius
obfcrv-es
of the World, which are to be found in any one \- no Law ties us to a neceffity oi buying.
In as
So it cannot be lels than Inhumanity to deny any much as every Man is naturally free to
accept
Son
of
the Earth the ufe ofthofe good Things,which or to refufe what Purchafe he pleafcs
; and no one
our common Mother affords for our Support; pro- has juft Reafon to complain, bccaufe
another is
vided our peculiar Right and Propriety be not in- content to want fomewhat which he could fupply
jurcd by fuch a Favour. And therefore the Mega- him with. And therefore we find it forbidden
in ma-
'renfians (in Plutarch) when the Athcniam had for- ny Places, as well antient as modern, to import fome
bidden them entrance to all their Ports and Mart- particular
Commodities : either lelt any Damage
Towns, complain'd that this was done iroj* w
iliould by this Means arife to the State; or to excite
xeif* cftV^w, contrary to the Law
of
Natiom. the Induftry of our own Subjects; or to hinder
But this Aflcrtion will admit of many Reftrifti- our Money from paffing into foreign Hands,
ons. For we do not feem in Duty obliged to com- Therefore the Spanijh Cafuift, lately mention'd,
municate to others fuch Goods, as belong not to the is widely miftaken,when he aflerts, that by the Law
Neccflities, but to the Pleafure and the Superfluity
of
Nations^ every one has a Right
of trading into
fo-
ofLife. And then, ifScarcity lies upon us, we may reign Parts^
of
importing what the People there want^
juilly keep what we have to our felves. Could ^o- arid
of
exporting Gold, Silver, and other Goods in
feph
have difcover'd that the Corn of Egypt was which they abound. For fuppofing I declare my
not fufficient tofupport the Natives, under the fe- felf well fatisfied with what I pofTefs of my own,
vcn Years Famine,hc might with good Reafon have with what Face can another force his Things up-
forbid the Exportation of it to Foreigners ^ So on me, whether I will, or no?
the Athenians once decreed it to be capitaHoxMrf Whenthe contrary is ena6i:ed,forExamplc,when
Subject of that State, to carry Corn for Sale any in fome Places, every Houfholdcr is obliged to buy
where but to Athens". Befides, we may fairly yearly fuch a Qiianrity of Salt, this arifes from tlie
exclude others from trafficking with us for things Power ofPrinces over their Subjefts, and thatNe-
not abfolutely needful for the Support of Life, ceflity of buying is a kind ofTax or Tribute. Thus
when by fuch a Permiffion our own Country would too a Ruler may enjoin his People, that if they
lofe a confiderable Ad\antage, or fuftain (though want fuch a particular Commodity, they fhall buy
by indiret Confcqucnce
)
fome notable Evil, itonly of fuchaPerfon. Whichkindof Laws are
For Example, one Kingdom, fuppofe, produ- very jult, when they promote the Intereft of the
ces admirable Horfes; what fhould hinder the Commonwealth. In the fxme manner we find it
Government there from pafling an Aft to prohibit often commanded by Authority, that the Subjeft
the carrying into foreign Parts, any that are fit for do immediately buyup Corn and other Necefllirics,
breed? For fliould the fine Strain grow common, even in remote Parts, when there is danger of a
the Country would lofc its greateft Profit, and its Scarcity (efpecially upon Apprehenfionof aSiege)
greatcft Ornament. And this beautiful Race is af- or to bring down Provifions to a more reafonable
fefted abroad, not for necell^uy Ufe, but for Pomp Price amongft us. But that I fhould go about to
and Pride, for Elegance and Eafe
''.
In one of compel a Man, over whom I have no Power, to the
the old Roman Conilitutions it is made capital to purchafe of my Commodities, this is what no Rca-
carry Wine, Oil, or Arms to tlie barbarous Na- fon will jtiltify, or cxcufe '. For upon whatPre-
tions. They thought the Prohibition about the tence can I afllune fuch Authority over thePurfe of
Wineand Oil no lefs neceffary, than the other about another, who is not my Subjcft, as to prefcribe the
the Weapons, fearing lelt the i?r^iTrM;w by tafting Matter, and the Meafure of his Expenccs, and
fuch generous Productions of the Empire, fliould to teach him how he fhould provide for hisNecef-
endeavourtomakethemfelves Mafters of fo rich a fities, or for his Pleafurcs? And though mv Gain
Soil. And we find in Livy
%
that when ^frj of be in the mean time hinder'd, or leflen'd, yet this
Clufium invited the G^/^/^ into /^'^/y, he made them Confideration can by no means abridge the other
a Prcfent of Italian Wines, As the JEncouragement Party of his natural Liberty. Or, if I would have
and the Reward of their Expedition
'.
him thus contribute to my Advantage, I ought to
Laftly, there lies no Reftraint on a State, why, in encourage him by mutual good Offices, and render
reference to the Exportation of Goods, it fhould my.felf worthy of the Favour. But ifa Manbeing
' See the Difcourfeof Mr. T'Z'.SOT,!/?///, entitPd, Depretio affeSlionis inres fungihiles mn caiente, c. 2. . i,
2, 5.
' Liban. Orat.
3. God hath not enriched every Place with .ill his Bleffings ; but hath divided his Gifts according to the dif-
ference of Countries, that he might incline Men to Society, bythcw.mt of mutual Affiftancc; and he difcover'd to Men the
way of Trading, that what was the Produft of any particular Soil, might by this Means becnjoy'd in common by tlie ^vjiole
World.
,
''
SluintU. Declam. 12. Whilft we were felling to the neighbouring Nations, and urged on by the hopes of ready Gai:i, we
neglefted a due Regard to the publick Safety ; and having emptied our Stores abroad, brought a Famine upon our felves at home.
' Lycurg. Orat. contra Lcocrat.
^
In Li-vy (1. 43. c.
5.) Upon tlie Requeft of the Gtf/?/<-/f AmbaiTadors,, it wasorder'd,
that
they ftiould have the liberty of buying Ten Horfes, and ofcarrying them out of ///y. ^L.5. c.33.
'
Add.A'a//!^.i3. 24.
'Judith
10. 20.
E
L.2.c.2.^.20. Plato de i.L.8. Let no Man import Frankincenfe, nor other foreign Things ufedin
Sacrifices,
nor Pur-
ple, nor any
Colours which are produced at home ; nor in fhort, any Commodity, but fuch as is abfolutely
necefiary ;
and
en the other fide, let no Man export what is of neccifary ufe in our own Country. Ceefar dcB.G. 1.2. reports of the^Vifrc/;,
that they
allow
no Entrance to Merchants, fuffer no Wine or any other Incitement to'Lu.x'ury to be imported ;
imagining that
the ufe of thefe
Delicacies muft needs weaken Mens Minds, and unbend the Itiffnefs of their Courage.
The fame Author tells
lir" t
^'"'''''
''^^'^ '^ ^^^^^
'^^
brought from other Parts for their Affiftance, they refufe to make ufe ot them
;
and as for
Wines they
abfolutely forbid the Importation of them, being of Opinion, that thofe Liquors foftcn and eft'cminate the Spirits
of Men,
and render them unfit for laboripus Employments.
i
K k i
ftock'd
5248 Of
ti^ mutual
'Duties
of
Humanity.
Book
III,
ftock'd with fuch particular Commodities, offers in Race and Blood ; and that when thefe
Agents
to vend his_ Abundance^ where-ever he can find were difmifs'd after a reproachful
manner, it
was
Chapmen, it would, in this Cafe, be moft inhu- then at laft thought proper to gain
Relief, by the
man, and unjuft to hinder him from thus furnifh- joint Application of Cunning and of Force.
And
ing himfelf with other things, which hew/5for what malces the thing flill carry a better
Forceis
the necefHiry Occafions of Life ^
That this way o?catching JVives was in thofe
Times'
XIII. Another Duty of the fame Ranlc, is the not only a common, but a laudable Praftice ; Dtony.
giving Licence to Men of other Nations, efpe-
ftiiscii\h\x:,AnJntientandaGxtc\mCuftom,andthg
cially if feated in our Neighbourhood, to folicite,
moft
renozvned Method
of
obtaining Maids in
Mar-
aud contraft Matrimony with our Subjects, when
riage.L.z.c.^o.AddyudgesXXI.zi.ltistrue^'Vio-
they are at a Lofs for Womenamongft themfelves '. lence can feldom be necefTary in this Cde, fmce i t's
As for Inftance, if a People compos'd only oMen, never difficult to find Women iough, who Ihall
either being expell'd their own Country, or upon be ready, of their own accords to accept of any
fome other necefTary Account, arefix'dnearus,and
Husbands that ai-e not abominably vile and fcan-
defigntoformanew State. For to live without dalous.
the AfTiilanceofthe other Sex, is what the Frame
To rejeft thofe who feek our Alliance by fuch
andTempcroffewMen can bear. Celibacy in a
Propofals, would be very hard Dealing. And tho'
healthy Conflitution is the Gift only of excellent
the denying of a Woman for a Wife be not, in it
Souls
j
and to feek other Satisfactions in this Cafe,
Jelf,
a jufl Caufe of commencing a War, yet is it,
than Nature advifes or allows, would be foul and
if the Refufal were accompanied with Reproach'
brutal. Befides,as/7ora5obferves,i? tantumunius As the Inhabitants oi Rhegiim^ when Dionyfins oi
<statis
eft
populus virorum', A State made up of Sicily fent to defire a Wife amongfl them, returned
one Sex, wz. Men, can lafl but one Age. Uponthis in anfwer, That they would grant him none but
Principle many arc willing to defend, or at leaft the Daughter oftheir common Executioner. See
to excufe, the famous Exploit of Romulus^ the Rape Diodor. ^zV.Lxiv. c. 1 08 . &Strab. l.vi. a like Inflance
of the Sabine Women. Authors indeed are divided is to be metwith in Paulas Fenetus, 1 . 1 . c.
f
z. On
about the Reafon and the Mannerof this Proceed- the other hand, fliould a Prince, by Virtue of his
ing. Z);o>7?ji///V^r^^a5 reports, that the main fovereign Authority, compel the Women of his
design o( Romulus was to obtain the Friendihip,
Country to accept of fuch Husbands iis have no-
and Alliance of the neighboui-ing Nations, byjoin- thing in them to deferve Affeftion, this would look
ing with them in Marriage
j
and that, though he like Inhumanity
> cfpccially in Cafe the Fortunes
began this Projeft in an injurious AVay, yet he ima- and Conditions of the Parties were unequal. The
gin'd that in time this ill Beginning would produce
Speech oiCanuleius in Livy^ where in the Nameof
agoodConclufion, and that a fair Correfpondence the Populacy
"',
he intreats the Senate, that they
and Familiarity would be eifablifh'd, fo foon as would allow them the Privilege of Mairiage, a Fa-
they fhoiild have clear'd themfelves to the new vour granted to Foreigners, and to Neighbour
Brides, by the Plea of Love, and to the Fathers
Nations
>
and that they would not exclude them
andjlelations by urging that th^m^agem was fet from the Number of Mankind, does not belong to
on Foot, not out of Affront and Abufc, but as a the Queflion before us, although produced as an
necefHiry Relief to a defperate Condition. Yet it Inflance by Grotius. For the Plebeians did not then
mufl be confefs'd,this feems a very prcpofterous way feel a Scarcity ofWomen, but the Aim and Defign
ofgaining Friendihip. See Tacit. An. 1. I. c.
^^.
of this Petition was to raife themfelves to an equal
What he reports oiSegcftes^ that whenJrminius had Pitch with theNobility, by Means of mairying into
ftolen his Daughter againfl his Confent, Gener in-
Patrician Families. Otherwife, when Womenarc
z'ifusy 6cc. The Names ofSon-in-Law, and Father-
plenty, there is no occafion of winning a Bride by
in-Law, which when there is a mutual Confent of main Force of Arms: Invenies aliam^
ft
te hac
fa-
Partics ufed to be a Band of Love and Endearment,
ftidit. As for thofe civil Laws which forbid Maniage
prove now the Seed ofHatred, and the Incitement
with Foreigners, or between Subjefts of different
to mortal Difcord
.
Ranks,they always prefuppofe,that ever\' one is able
Others pretend, that Romulus by this Attempt to find out a Match fuitable to his Condition
j
and
only fought an Occafion of quarreling with his they are'generally founded on fuch Reafons as thefei
Neighbours, which feems very improbable. The that the Splendor of great Families may be pro-
common Defence ofthe Faft is to alledge the want fcrv'd
j
that our Womenmay more eafily get Huf-
ofWomen, and fo to have Recourfe to NecefTity
j
bands at home, whilfl our Men are not allow'd to
but then Authors take care to tell us, that Commif-
get Wives abroad ; or that the
"
Riches and the
fioners were firfl fent about to treat with the People
Affedions of our People, may not by the Means of
on the Affair, and to beg that they would not think
Inter-Marriages be eltrang'd from us, and fettled
it hard to let Men like themfelves mix with them on a foreign State.
Mr. Barbeyrac'5 NOTES on . XIII.
See Mr. Buddeus\ Difcottrfe, entitl'd,
Jurifpr. Hiftoriea Specimen,
. 9. among his SeleHa Juris Natur<r
3*
Gentium.
^ Reseratunius details, fopitluivirorum. Flor. i. c. i. numb. lo.
3 CrtWWw's Words arc, Connubiumpetimus, quodJinHimis, txternifque dartfolet,m-,^mUt hominum
mmerorimus. Liv.
Dec. 1. Lib. 4. c.
3.
'
* ThisClaufein Mr. Hertius'i Edition, with his Notes, is thus rendered, Ne opes aut effeflus noflrorum in alias Civilates
per Connubta transferantur
;
whereas other Editions have it, as it ought to be, ajeitus. This renders it credible, that 'tis not
a Fault in thelmpreifion, but as Hertius remarks, by way of Supplement, a thing contained in the Author's Exprcffion. For fear
(fays he) a Citizen in refpeft to the Alliance and Riches of fome powerful Stranger, fliould exalt himfelf above others, or on the
contrary, for fear a po\verful Stranger fliould make ufe of his Alliance to a Citizen to become a Mafter of the State. For fo
^r/^c/Zi" obferved, that Z)(7y/aj the younger, having married a Woman of iorr/V, found a way by means of that Alliance
to poflefs himfelf of the Government of that Republick, Polit. 1.
j. c. 7. But ail this is not comprehended in the Word affeaus,
f
which Mr. i'a/Q'(/i;//fpeaks.
AJJ. Boecler. in loc. citat. Grot,
4
XIV.
Laftly,
Chap.
lif.
Of
the mutual Duties
of HuManhyl 2&
XIV. Laftly, Grotlus adds, that any Right com- nient, ought, as Pliny
'
obferves, to be call'd Ambi-
mon to all, and confequently an Obligation to a tiori or Oltentation,or
any thing rather than Libera-
Duty to be perforin'd towards all^ arifes from this lity. Wife Men have made it their
chief Bufmefs td
Suppofttion^xh^x.
we grant fuch an Indulgence pro- prcfcribc Rules for the guiding and
pcrfcfting of
mifcuotifly to every Stranger
>
becaufe then, if any thcfe Obligations : And the antient
Books ofMora-
one be excluded from the Privilege, he is mani- lity are not on ahySubjeft more copious,
or more
feftly %wV. For it is an Affront and Reproach
cicA.r.'-T'ttll.O^.l.c.i^.Beneficentia^quanibileftmttt-
to debar a Man, without particular Reafon, from a r^ humaneeaccommodathis^ multas habet cautiohes
5cc
.
common Advantage; this being to make him une- The Duties of Liberality or Bounty, than
which
qual and inferior to others. Hence Grotius con- there is nothing more agreeable to the
Nature of
eludes, that if it beinany Place permitted toStran- Man,fiill underraany Limitations'.
Forinthefirft
gers, to hunt, to fifh, to hawk, to gather Pearls, place it {hould be our Care to fee that our Bounty
to receive Legacies, to fell Goods, to contraft Mar- prove not a Prejudice,cit her to the Peifon wewould
riages (even without being compell'd to it by oblige, or to any other Body; and then that we do
fcarcity of Women
)
no Nation can be deny'd the not give above oiir own Ability, norabove the Mc-
f\me Liberties, except they have foi'feited them by rit of the Receiver. As to this laft Point, we are
their own Default. But this Affertidri will fcarcc principally to regard thofe, to whom wc ourfelves
hold. For the Conceffions here fpoken of inuft be already ftand obliged, and then others, as they have
mxAs cither exprejly^ or tacitly. When we grant a more or lefs need of our Afl'iftance. Wc are like^
Thing exprejly to another, we do it cithtx precari- wife toconllder the feveral Degrees, by which we
07</7r,
or in the manner of a P^iS, or
perfe^ Promife. ftand related in the World. Ofthefe the firft and
Nowthat any one Ihould give a /)fr/^ff Right over moft extenfive, is the univerfll Society of Man-
aThing of his (notdue by the Lawof Nature
) to kind. Nearer than this is the Alliance between Pfcr-
all Nations, known and unknown, without Limit fons of the fitme Nation, of the fame Province^ of
or Rcilraint, is a Caie which I believe never did, the fime Language, of the fame City. There is yet
and never will happen. For every one is defirous a nearer Tye of Kindred. And here the firft So-
to know at leaft, on whom he beftows his Benefit, ciety is in Wedlock, the next in Children ; the Re-
and in whatMeaiure. But when a Man either by lation of Brothers comes afterwards, and then of
P(5?, or free Favour^ has granted fuch a piuticular Brothers and Sifters,Childrcniuid
Men,theMatche;
Privilege to all that come under his Friendftiip or and Alliances between different Families But the
Acquaintance, for a mecr Stranger to pretend a moft excellent and ftrongeft of all Alliances is.
Right to the fame Indulgence, would be veiy im- when good and virtiious Men join in familiarity
pudent and very wicked. As for thofe Things uponaccountof the Agreement of their Manners,
which we permit tacitly, or as it were overlook, IdemdeFinib\.y.c.%i.
Inomnihoneflo^^c. Inallthi
they are reckon'd of Courfe to be of the fame Na- Compafs
ofHonefly there is mthingfo iUuflrious, or
offo
ture with precarious Favours
>
and fuch maybe g^eat a Latttude^as the Conjun^ion arid Society
of
Men
fai rly revoked, either upon the Change of our Af- with Men, including a mutual Communication
of
Con-
fitirs and Circumftances, or becaufe the Peifons who -veniences, andgeneralLove
for Mankind. This Dear--
ienjoy'd them did not make fo prudent and modcft nefs begins immediately upon one's Birth,zuhenthe Chila
a Ufe of them, as they ought. Boeder, ad Grot. is mofi affeSlionately beloved by the Parent
; f
-0711 ths
XV. Whatwc have hitherto touch'd on, are Family, it by degrees Jleals abroad into
affinities,
but vulgar Degrees oi Humanity, the Omiffion of Friendflnps, Neighbourhoods ; then amongjl Members
which implies a moft bafe and abjeft Temper of
of
thefame State,and amongjl States thcmfelves, uni-
Mind. A much higher, and more illuftrious Strain ted in Intercfls and Confederacies
; and at length
of the fame Duty, is when a Man out of pure flretcheth itfslf to the whole Extent of human Race.
Benevolence and Inclination, arifing either from a In the kxerctfe
of
all thefe Duties, ive are farther to
native Generoufnefs ofSoul, or from Pity and Com- ohfcrve what every Man hath
mofi need
of, and what
pafHon to a Pcrfon in diftrels, is at fome Pains or with our Help hemuy,what without our Help hecan-
Charge inbeftowing freely on another, what may not attain
-y fo
that in fome Cafes the Tye
of Relation
relieve his Neccflity, or procure his Advantage, mufl yield to the Point
of
Time
;
and
fo-me Offices then
Kindneffcs of this noble Rank are by wayof Emi- are which we would rather pay to one Relation than
nence iHlcd Benefits\
the Manner and Meafure of to another. Thus you ought fooner to help a Neighbour
difpenfing which are commonly to be adjufted with in with his
Harvefi,
than either Brother, or a
fami-
regard to the Condition of the Giver, and of the liar Acquaintance ; but on the other
fide,
in a Suit at
Receiver. And thefe are the Things which open to Law,youought to defend your Brother, or your Friend,
Mankind the largeft Field of doiiig good, and of ac- hefore your Neighbour. See Seneca^ Tre.atife
of Be-
quiring Glory, if they are temper'd and regulated rtefits, which it would be tedious here to abridge.
by tiiic Prudence and Greatnefs of Mind. For to Plutarch {mSympof.) tells us 'twas aRuleamongft
ilirow about Favours without Reafon and
Judg- xhc Pythagoreans, not to take a Burthen from their
Mr. BarbeyracV NOTES on .XV..
'
Ambhh cnivt, ^jaSlantia,^
effufto,
i^ quidvis fotius, quamlibiralitas exijlimanda
eft,
cut ratio no7i conjiat. Plin. Paneg;
thap.
38. numb.
4.
*
See the Commentators upon thefe and feveral other Paflages, where Tully treats of Beneficence. See M.irc. Antonin. Lib.
5.
c. 6. with Gauikrr'i Notes, and Pliny the younger, Lil>. 9. c,.30. But above all, I muft commend to your reading a little
Book,
wherein Mr. Lc Clerc gives a fine Dcfcription of Liberality, and wherein he fhews excellently well the falle Notion*
vhich
Men ordinarily ha^e of that Virtue. 'Tis the 1 2 th Chapter of his Book, which he entitles,
Rejleiiions upon our goud Hi-
ill Luck, as we commonly call it, in the Bujinef! of
Lotteries. AWork printed ^xAmfterdcim in 1696.
' Under the Notion of Beneficence w
threaten'd
withal. 'Twas a Precept of 1
our Author cites above, 'Ot/6 ^tf.S'wo/ St^ToV Of i/i/A'ciy^^X^''- -.> .
.
-u o
-
T >///' c top'
^tfiv
m^oy.
We muft not leave any Sgul that is entcr'd into .in human Body in danger, as the Gyninofophiltj
inftrudl us, Lil>. 2. c. 6,
Fellow,
250
Of
the mutual Duties
of
Humanity Bo k III.
Fellow,
but to help him to bear it; and this they
did to
exclude
allldlenefs andEafe. Tho' S.Paul
could have taught them a better Reafon, z Cor.
via. I 3.
Not that other Men be eafed^y
and you bur-
thcn'd^y but by an Equality, t^c.
A<M.Jmhrof.0^c.
l.'i. c. 30.
and from him Gra-
i'mnUiil. Ixxvi. c.
14,
&c. ^
Cauf.i. Queft. z.
Chap. 6,-/.
Socrates in Xenophon Catojui'.)
lays
down this as a Rule in our Afliftances,to our Friends
or to Strangers, and in almoft all the Concerns of
Life, To do accrdlng to our Ability''.
XVI. The Virtue anfwering to 5fe^(rfwr^ in the
Perfon, in this Cafe it is k^^ful for us to refufe
the Benefits he offers. But then great
Care
muft be taken to do this without giving the lead
Sufpicion of Contempt ; fince othenvile, to re-
je6i: a voluntary Favour', carries in it a maiiifeft
Affront.
Take away the Neceflity of returning Kindnefles,
and no Man will ever begin them ; for then it
would plainly be afting againft Reafon, to part
with our Bounty, whilil we know it would be
thrown away. And thus all Beneficence, all mutual
Trufl and good Will muft be banifh'd out of the
Giver, is Gratitude in the Receiver, by which he
World
>
there muft be no fuch Thmg as free Help,
demonftrates, that the Kindnefs was acceptable to
or antecedent Merit, no way of endcmng and en-
him, and upon this fcore entertains a hearty Re-
gaging one Man to another Comp.HobbesdeCive^
fpec^ for the Author of it, fceking allOccafions of
c.iii.f.8. Jrijlot
.
ad Nicom l.ix. c. i^ ItwiU
"
-
making a Requital, as far as his
'
Abilities will
good for the moft part, that we are rather tc
give him leave. For it is by no means abfolutely
^ -
^-^"-^^ ^1-" ^- '^"- "^ ^'-"'^
-
'^'^
"'
necclTary, that our Return fhould be precifcly as
much in Value, as the Courtefy amounts to
j
but
good Will and earneft Endeavour are frequently
allow'd to flitisfy an Obligation.
Ovid, de Ponto
1. iv. El. 8. ver.
37.
Sed qui, quant potuit, dat maxima^gratus ahmde
efl j
Et
finem
pietas contigit illafuum.
He that repays to his Extent of Power,
Were not more grateful with the noblell Store.
It will hold
to re-
tiirn a Benefit, than to ferve a Friend in the way of
Gratuity j
as we ought likewiie rather to pay a
Debt, than give away our Money to our deareft
Confident. In general, what we owe of any kind
is firft to be made goodj yet if a free Gift to ano-
ther Perfon would at the fame time plead moreHo-
neify, and more NecefTity, it is then to have the
Preference in ourDifpofal. Add Socrates, hisDif-
courfe of brotherly Love, in Xenophon. 'A's^o/zr. z.
'
2'ully is admirable on this Point of Gratitude : It
is, fays he,
of
all Duties, the
moft
indifpenfikly ne-
cejfary. i/'Hefiod bids a^reflore what we borrow.
The Reafon of this Duty ceafes,when e\'er we if we can, in a larger Meafure
>
ivhat ought ive ta
have a juft Exception againft the Donor, and -.ire
fully aflur'd, that his Bounty was more in Pretence
than in good Will\ But here wife Men give us
an excellent Caution, that we fhould not be too
curious in enquiring upon what Grounds and Mo-
tives a Man has been our Benefador ; becuuie this
Nicenefs of Examination will ever afford a Plea,
and a Colour to Ingratitude.
The more apt in their own Nature Benefits are
do ivhcn "due are as it were chaWeng'd by a priov Obli-
gation ? Are ive not in this Cafe to imitate fruitful
Fields, that
ft
ill return more than they received? For
if
we make no Scruple to oblige thofe
whom we hope
to be the better
for
hereafter, how then ftiould we be-"
have ourfelves towards fuch as we are the- better
for
already? Since there are two forts of
Liberality, the
one
of
bellowing a Benefit, the other
of
returning it
;
it is at our Choice whether we will give or no ; but
to unite and to engage the Minds of Men, the anhoneft Man is not at Liberty inthe Point
of
xcx.wxw'
more ftriftly does Reafon enjoin us to apply ing, provided it can be dene without Injury.
ouifclves with Vigor and Induflry to a juft Re- It is obfervable,thatC/Ve;o here m?kt:s Gratitude
quital. When a Man has exprefs'd fo much Dc- n pzrt of Liberality, and confcquently, hints, that
pendence upon mc, as to confer the prior Obliga- it is not tyed up to Laws altogether fo lb id as
tion, I am bound at Icaft not to fuffer him to be
the worfe for his Kindnefs, and I ought never to
receive a good Turn, but with a Refolution to
hinder the Author, ifpofTible, from repenting of
what he has done. If upon fome particular Rea-
fon we are unwiUing to be obliged to a certain
thofe of 77?w, which commands us to repay what
we owe upon Contract moft punctually and pre-
cifely*. It may be remark'd further, that when
hefiiysthc fonnerkind of Liberality, the
beft
owing
of Benefits, is in 'our Choice, he ought not to be un-
derftood in an abfolute Senfej for it is plain we
4
To thefe rare Paflages of the Antients, we may add a fmall Sentence taken out of our Author himfelf in his Abridgment
of the Duties of a Man and Citizen, /. i. c. 8. . 5. The manner of exercifing Beneficence and Liberality much enhances
the Value of Benefits, as when a Man does a good Office with an Air of Chcarfulnefs and Brisknefs, and with all the Signs
of a good Will.
Mr. BarbeyracV NOTES on . XVI.
'
'Tis a Maxim of the Scholars of Zoroaftres,
Praceptum
eft,
ut
fi
aliquh heiieficiumfacit alteri, turn alter! inaimhit illud ea-
iem quantitate rependere, quantum poterit. In Sadder. Porta.
95.
We are commanded, that if any does a Benefit to another,
that other is obliged to do the like, if he be able.
*
As for example. If a Man keeps me from drowning, I have no manner of Obligation to him, if he threw me into the
Water ; as our Author fpcaks in his Abridgment of the Duties of a Man and Citizen, Lib. \. c.i. . 5. See Seneca de Benef.
I. 6. c. 26.
3
Our Author in his laft Editions interrupts the Thred of his Reafonings with this Remark, That when one refufes a Benefit,
we fhould take care that we give no Sufpicion of Contempt to him who civilly offers us his Service, otherwife fuch a Refufal is
a kind of Injur)'.
Ariftotle
maintains, that as it is a greater Duty toreflore what one has borrowed, than to lend to a Friend
; fo it is ordina-
rily to make an Acknowledgment of a Kindnefs, than to do one to a Friend ; at leaft there is a greater Reafon drawn from Ho-
^
His Words in the Latin are. Nullum enim cfficium referenda gratia magis neceffarium
eft.
S>uod
fi
en, qua utcnd.i acccperis^
majore menfura,fi
modo pojfis, jubei reddere Hefiodus, quidnam heneficio
provocatifaccre dcbemus ? An imitari n^rcs ferlilcs, qui
multo plus efferunt, quam acceperunt ? Etenim
ft
in eos quos fferamus nobis profuturos, non dubitamus cfficia corfrre, quales in eot
ejfe
debemus, qui jam profuerunt ? Nam cum duo genera Liberalitatis funt, unum dandi teneftcii, alterum redaendi, demus, nscne,
innoftra poteftate
eft;
non reddereviro bono non licet, modi
idfaeerepoj/itfine injuria. De Offic. 1. i. c 15.
Fid, Arabrofc dt
Offic.
1. i. c. 31. Gell. 1. 1. c.
4.
arc
C H A p.
I II.
Ofth
mutual Duties
of Humanity.
are under fome Obligation even to antecedent Be-
neficence ;
but the Point is, that this Obligation
does not carry lb much Striftnefs in it, as that which
binds a Man x.o Gratitude; or to endeavour the ap-
proving himfclf by all good Will, and good Ser-
vice to his Benefaftors.
It happens, 'tis true, very frequently that in the
doing a Kindncfs there is more true Love on the
Part of the Gii-cr^ than of the Rcceher. The Rea-
fon of this is enquired into, by Ariftotlc in his
251
" fiftance of others
j which if they chance to ob-
" tain, they immediately hate
thePerfons to whom
"
they have been obliged,
bccaufe cither wanting
"
JVill to make requital, or defpairing
of jibility^
"
and at the ftme time fanfying all the
World to
*'
be mercenary, and that no good Turn is done
"
without hopes of Retribution
> they
apprehend
*'
themfelves to have exceedingly baulk'd and dil-
"
appointed their Benefaftors
''.
Learned Men have difputed, whether or no
Ethicks, Bookix. c.
7. There being too much there ought to lie an
^
^i??/'o againll this /^/V?, in
Ground in fal:, for that politick Remark o^'taci- Courts of Civil Judicature. Scheca
'
takes the re-
tus^Bcneficiaco ufque l^ta fttnt^dum videntur exfolvi gative Side of the Qiieftion, and the Reafons he
p[j'e yiihimuUum ante'uenere^frogratia odiumredditur^ proceeds upon are chiefly thefej
"
Firfl^ That if
J';/.iv.8.
A'^'^Hobbes Leviathan, c. I i^^c. Where "
a Benefit be flriftly to be repaid like a Sum of
he tells us, that the receiving great Benefits from a
Superior
inclines to Love^ but the receiving of the
like from Equals or Inferiors does not, unlefs there
is Hope of being able to requite them. "
Good
"
Turns do lb far yield an agreeable Satisfaftion, as
"
we finfy ourfelves able to repay them
i
when they
"
much exceed this Meafure, the Debt grows de-
"
fperatc, and fo produces a fullen and a lecret Ha-
"
tred, inltead of a real Kindnefs and Aflfcftion.
XVn. But tho' the bare Notion o? Ingratitude
does not imply a real Injury, inafmuch as it is not
the Violation of any full and perfeft Right, yet
it pafles in common Cenfure for a Vice more foul.
"
Money, or as if it were let out to him, it then
"
loies the
^
Name of a Kindnefs, and becomes a
"
Loan or Debt : Secondly, That whereas the re-
"
quiring of a good Turn is efteemcd an Act high-
*'
ly virtuous, it mull ceafe to be virtuous, were
"
it once made necefijary: TZ'/rfl'/r, That there mull
"
needs arifc more Caufes on this Head, than all
"
the 'Courts in the World would be fuffcientto
"
try,
I'hemifl.
Orat. iii." By the Perfian Con-
ftitution, there is a fettled Penalty decreed againit
Ingratitude; as being thercadieillncentivc to Ha-
tred, and ill Will. And where this Vice is not
punifhable by Law, it produceth more defperatc
Enmity, and more fatal Contention. Add Xeno-
4Z.
ff.
more odious, and deteftable, than Injnfiice itfelf.
For it is look'd onasanArgument of amoftabjeft fhon Cyrop. 1. i. And M. Antonin. 1. ix. c
and degenerate Soul, for a Man to declare hinifelf 6? Val. Max. 1. ii. c. 6. f
6,
7. l^
1. v. c.\.
unworthy of the fair Opinion which another en-
'^
-
-
-^
tertain'd of his Honefty, to be proof againft
*
Be-
nefits, and confequently paft all Senfe of Huma-
nity".
The Account which Des Cartes {in his
Dif-
courfe
of
the Pafjions, Artie.
IP4.
)
gives of Ingra-
titude, is very rational and very elegant.
*'
It is
"
the Vice,/2j>.r /j(?, of Men, who are either madly
"
proud and vain, and fo imagine eveiy Thing to
To thefe Inflances and Arguments, other Author*
have anfwer'd at large. See Bceclers Ablio In-
grati. Our Defign leads us no farther, than to
obferve,that from every Tranfgrefiion of the Law
o? Nature it does not prefently follow, that there
muft lie an AElion (or the Refemblance of an
Atlion ) againil a Man in Nature's Court. This is
certain, that the DivineJuftice hath refcrv'd feverc
Punifhments to be inflifted on imgrateful Perfons in
"
be due to their Merit; or clfe fenfclefly ftupid, another Life; and in this prefent World they ought
"
and fo unable to reflcft on the Benefits they re- to fufFer the Hatred and Deteftation of all Man-
*'
ccivc j
or laftlv, pitifully weak and abjeft, who kind, and to be adjudg'd unworthy of the leaft
*'
when they feel their own Infirmity and Want, Benefit or Favour. But why a Man cannot be fued
"
fue with the meaneft Submifiion for the Af- 'm'xa.Aclion,'Xll]\c Civil Bar,ioxfimplc Ingratitude,
Mr. BarbeyracV NOTES on . XVII.
'
The Reafon that Tiilh gives of the evil Eye of Ingratitude is this : Omnes immemorem beneficii oderunt, eamque ir.jurlam in
ieterrenda Liberalitate fihi etiam
fieri,
eimque qui facial, communem hoftem
tenuiorum putant, ( i- e. ) The Ungr.iteful is hated
by all the World, for their Proceedings difcouragc them who are inclined to Liberality, which is an Injury which every Man
Ihares in ; infomurh that the ungrateful Man is accounted the common Enemy of all thofc who need Help from powerful Per-
fons. Cii-cr. De
Offic.
1. 2. c. 18.
*
"Oi' jS 7B
Xf"^"''
^^ iynintPiv (juii)v If Benefits will not affeft the Mind,
Ti S" aV S'_iniiv a'Wio r mvlav -m-n
;
There's nothing in the World will make us kind.
Greg. Naziavz.
lucian alfo fpeaks to the fame purpofe, as in [a]. See alfo the Reflexions which Mr. De Evremont makes upon ungrateful Per-
fons, Totn. III. /i.
79.
and in his Mifcellanies. VrlviltA. 3.I Amfierdam 1706.
'
This was praftifed heretofore not only among the Perfians (as appears irom Xenophon Cyropaed. Lib. I -p. 3.
jElian. Hijl.
Animal. 1. 8. c. 3. ScJhcmiJlius Orat.zz. De Amicitia) hxitViVo o.mongl)xe Athenians. ox Valerius Maximus (iys, In qua
urbe [Athenis) ad'jerfus ingratos aBio conjlituta
efl.
Lib. 5. c. 3. . 3. extern. Sec alfo Lib. 2. c. 6. . 6. is? Petit. deLegib.
Athcn. Lib. 2. Tit. 6, & Lib. 7. Tit. 8. which Paffages Mr. Bayle did not remember, when he faid, in his Thoughts about a
Comet, That none but the Medes have made any Laws againft ungrateful Perfons, for which he quotes Xenophon indSeneca De
Beneficiis, Lib. 3. c. 6. in which laft the Editions read Macedonum for Medorum; about which, fee Muret. Far. LeSl. Lib. 12.
c. 3. See alfo Brijfon. De. Rrgn. Perfarum, Lib. 2. p. ig8, 199.
*
Sencid's Words are thefe, Primum omnium, pars optima beneficii periit,
fi
aHio,
ficut
certa pecuniae, aut ex conduce, aut l(^^
lato datur Deinde, cum res honeftijjima
fit
referre gratiam,
definit ejfe honefta,
fi
necejfaria
efi
Adjice nunc, quod
huic ur.i Icgi omnia fora vix Jufficieiit. De Benef. Lib.
3. c.
7.
S
In fine, Befides, that there is hardly any Man but complains, that he has been ungratefully dealt with, it is very
hard t
weigh exactly the Circumftanccs which increafe o\ leffen the Value of any Benefit. See what Seneca fays of this
*
Lucian in Antholog. ia.SK- dnip, &c.
A thanklefs Wretch is like a broken Sieve,
Lets out, and lofes fafter than you give.
Add Pheraula's
Judgment concerning the Nature of Man in Xenophon Cyropjed. 8.
*
Sophocles Ajace.
A Favour Ihould be treafured in the Soul, A Wretch that ftifles
Benefits beftow d
And made the Mother of a kind Return. Scarcely deferves the
generous Name of AUn-
*
De Benef. 1. 3. c. 6, &c,
thaf.
252
Of
the Duty
of
keeping Faith. Book III.
that is, forgetting a good Turn, or for neglefting
to requite it, when he had Opportunity, there
feems to be this plain Reafonj that the veryCaufe
of my conferring the Kindnefs (that is, of my
giving fomewhat without taking Security for its
return) was to afford the Party an Opportunity of
Ihewing himfelf grateful outol: pureHonefty, not
out of fear of
Compulfion ; and on my own part
to demonltratethatwhati
beftow'd was not done
out of a fordid Defire of Gain, but out of Hu-
manity and good Nature, fmce I required no Cau-
tion^ or Infurance of being repaid . Antoninus
*
will
teach us better Philofoploy. pfHoen thou
accufeft
a
Man (fays he)
of
Falfenefs or Untha?}kfulnefs ; turn
the Cenfure upon thyfelf.
For the Fault is ixiithout
doubt thine ; that thou
didft
not confer the Favour
freely and undefignedly^
'without looking
for any
far-
ther Fruity than the AStion
itfelf. Is it net
fnfficicnt
Satisfaction to have relieved and
affified
one that is a
Man as thou art?
Dofi
thou demand a Reward
for
doing ivhat thy Nature obliges thee to do ?
But when a Man is guilty of mix'd Ingratitude^
or when he not only neglefts to requite a Cour-
tefy, but anfwers it with Injuries and Abufes
j the
Injury thus offer'd founds an ARion in Nature's
Court^ or a Caufe of
JVar
j
and its being accom-
pany'd with an ungrateful Mind, as it highly ag-
gravates the Faft, and renders it more vile and
odious, fo it engages the Sufferer more fpeedily to
feek redrefs
i
and to punifh the Villain the more
feverely, in regard, that Benefits thcmfelves could
not reclaim him".
'
How far the Neceffity of returning a Benefit is taken off by a fubfetjuent Injury, Seneca teacheth us, De BeneJ. 1. 6. c.
4, 5.
& Epift. 81.
C H A P. IV.
Of
the Duty
of
keeping Faith, and the 'Di'verfity
of
Obligations to it.
The Contents of eveiy Paragraph of the fourth Chapter.
1. T'here wuft
he Covenants and Agreements in all
human Societies.
ji. Covenants are to be kept.
HI. Obligations are natural.^ or adventitious.
IV. Atheifm deftroys all natural Obligations.
TH
E Duties hitherto explain'd, are mutu-
ally owing upon account of that common
Relation, which Nature has eftabliili'd a-
mongflMenj altho'we
fuppofeno antecedent yi'f?
to have pafs'd between them '. But it would be
unreafonable to confine within thefe narrow Li-
mits, all the Offices that Men are to exercife to-
wards each other. For in thefirfl place, all are not
of fo good and honetl Difpofitions, as to perform
every Thing, whereby they can benefit their
Neighbours, out of pure Humanity and Charity
j
without being fecure of Retribution. And then,
many Things which we fhould be glad to receive
from others, are of fuch Value and Confequence,
that we cannot in Modefty defire them gratis. Or
perhaps it does not become our Fortune or Station
to be beholden to another, for fuch a Benefit. There-
fore unlefs an Equivalent be paid, commonly the
other Party is unwilling to give.^ and frequently
we are unwilling to receive. Again, others are
many times ignorant, how they might ferve and
oblige us. !-//>, Inafmuch as the Power of Man,
V. Anatural.) or civil Obligation.
VI. What is the Force
of
each
of
them.
VII. A perpetual and temporary Obligation.
VIII. Obligations not mutual.
IX. Obligations perfectly.) or imperfeSlly.^ mutual.
being
finite.^
cannot in the fame manner extend
itfelf to all Peifons, it is agreeable toReafon, that
fuch Ats as are not already bcfpoken by an antece-
dent Obligation lying on us, fliould be made fure
to thofc, who by entring into Covenant with us,
firfl obtain a Right to receive them
-.
There-
fore, that the taie Fruits of a focinl Nature, the
mutual
Offices
of Mankind, might be pradis'd
with more Frequency, and more Regularity, it
was neceffary for Men to bargain, and agree
amongfl themfelves, that they would perform
to each other fuch and fuch Services, as they could
not be abfolutely fecure of by the bare Law
of
Humanity. So that their Bufinefs muft be to fettle
before-hand what every Man ow'd to another,
and what he fhould by virtue of bis Right accept
and challenge in return '.
Hence it iseafy to apprehend how the Offices of
Humanity, or Charity, differ from thofe which are
requir'd by full and proper Right., and which are
the Objeils oi flriEl Jujiice.
The former are not
owing upon any Covenant, either exprefs or
/'-
Mr. BarbeyracV
NOTES on Chap.W .
I.
SeeCi<?#. I.
i
I- -Wi"^!- aforegoing, andC-&/7/>. 9. . 8. with theNoteonit. .
.
,^,r j
The Period which is placed here, and is joined to the foregoing hy the word Denlq; finally, feems defign d for a new and
the laft Reafon to prove the Neceffity of voluntary Engagements. But, as any one may difcern, that Period fuppofes a Neceffity
of fuch Eneaeements
already eftablilh'd : For it endeavours to fhew the Right which an Agreement or Promife gives over the
Aftions of another ; and fo has bred Confufion in our Author's Work.
This has proceeded evidently from the Negligence of
our
Author in inferting his Additions ; for the Sentence, which caufes this Diforder, is not found in the firft Edition.
}
I have added the following
Sentences to compleat our Author's
Reafoning, as he has done himfelf in his Abridgment of
Man and Citizen, Lib. i . f. 8. . 2. This is what is done by Agreements or Promifes
:
For fince our Abilities are fo limited,
that they can't extend at the fame time and in the fame manner to the Neceffities of all Men, Realbn tells us, that he that ha
acquired by an Agreement or Promife any particular Right to the Aftions of another, which were not before^ as we may
fay,
engaged to any other, has a Power to difpofe of thefe Aftions accorc^ng to the Agreement.
Chap. IV.
ctnd tie
'Vivifion
of OUigations.
253
fUcit
; but purely by force of that common Obliga- tures, moft religioufly
to
obfervc and perform them
.
tion which
Nature has laid upon Mankind.But what For were this AfTurance
wanting,
Mankind would
I owe
another upon PcJc?, or ^^r(7mc/, I therefore lofe a great part of that
common
Advantage
owe
him,becaufehehasobtain'dawwi?/g/jr,hold- which continually arifcs
from
the
mutual Inter-
inggoodagainftmebyvirtueof myfreePromifeor conrk o^ good 'Turns, ^rijlot.
Khct.
\.l c ir
Gonfent.
Farther, whatever I tranfad witli ano- Take away Covenants, and you, difabk' Men
from
ther by way of Covenant, is defign'd not for his being
ufeful and ajjijlant to each other
'.
TuU.
Off
Profitjbut
formyown. Whercasm Duties ofHu- 1. II. c. 1 1. So great is the Force
ofjuflice that
manitv the Cafe is quite otherwife. For, although even thofe -who live by Outrage and Villany
\annot
the
Performance of thefe be in general neccjfary, for
fiibfijl
zvithout
fome Sbadozv andSemblance
ofthis Vir-
the rendring the Life ofMan comfortable and com- tue. Which he fliews in the Inihnces ofThieves
modious, and confequently be an Advantage to the and Pirates. Farther, were not Men moie ftriftlv
Performer, by giving him good Grounds to exped and necelfarily tied to keeping their Promifcs, we
fair Treatment -, yet with regard loparticular A6ls could not with any Certainty build on theAlliftance
of
Kindnefs,aMandoe5thcmnot for his ownfake, ofothers,intheordinaiy
AffiirsofLife. And then
but for the Hike of the Party who receives them, breach
of
Faith is the aptcil thin'' in the World to
For a Benefit,
if conferr'd upon a Principle of^77- found an cndlcfs Succeflion of QiiarrelsandCom-
vate Interefi,
lofes its Nature and its Name. plaints. For in cafe I have actuall3'pcrform'dmy
Thus then the Duties o? Humanity, qv Charity, part of the Contraft, and the other Pcrfon fails
and thofe arifmg from Cotw.T;//, do afford a mutu- whatever I have fl'oi',or^/iw,
is abfolutely/o/?.z^nd
alAlTiftance and Supply to each other; whilll: thofe if I have not as yet proceeded to any aftual Per-
things which CZvr/'/v either cannot, or does no or- formancc, it is however a Trouble and it mav
dinarilyprocurejareobtain'dbyP^ff; and in Mat- be a Prejudice to me, to have the Courie of mV
ters about which noPatis have pafs'd,C/:;m/>' comes Defigns and Bufinefs overturn'd
; fince I could have
in, and ferves our Turn as well. And although to fix fettled things by other Ways and Mealurcs had not
the Siibje(51:,and the Conditions ofCovenants,be left this Man offer'd to tranfift with me. And 'tis molt
tothePleafureof particular Perfons; yet that there unreafonable, that I lliould be expofed to Scorn
fliall be fomefuch Agreements, the Law of Nature and Cenfure, for entertaining
a kind
Opinion of a
does (indefinitely, and in general) command; in Perfon'sGoodnefsand
Honeily. Weare therefore
as much as without thefe Tranlactions there would to efteem it a mofl facred Command of the Law
be no poiTible Means ofpreferving Peace and Socic- of Nature, and what guides and governs
noton-
ty in the World. So fpeaks Ifocrates adverf. ly the whole Method and Order, but the whole
CalUmach. So great is the Force
of
LeaguesandCc- Grace and Ornament of human Life, that every
venants, that fcarce any Affairs,
either
of
Gvechns Man keep his Faith ', or which
amounts to the
"Barbarians, are tranfacied in any other manner, fime, that he fulfil his Contrafts "*,
and difchar^e
By
means of thefe
vue traffick abroad, and bargain hisPromifes ". '^
at home. By means
of thefe ive terminate
private III. But in as much as Pads or
Covenants thofe
Diffeniions
and pubJick Wars. Thefe we all make efpecially which are exprefs, do impofe an 0^//ra-
ufe of, as an univerfal Good to be enjoy'
d
in common //o on us, which Nature did not before enjoin at
by Mankind*. leaft not in fo precife and
determinate a Manner;
II. When Men have once engaged themfelves by it may not be here inconvenient to run over the
PaEls, their Nature obliges them, as fociable
Crca- principal Kinds, and Divifions of0^/i^/zo/?J.
Obli-
Ifocrates"
%
Greek is this,'ToBUTu/ cT' 'iyvn /b'vei/tiv^ [ai nv^fiKg,i] ars to tXhsk n ;S/, J9 n7s''E}^ii<n,
1^ -mt Ba.(Cci-
^jTv. Tx-mv id, -m cx/jiCoKaua. m wpof fi(/.S,f aurii Trt/s.os-^a, ;^ to; Miat
'ix^fos,
ly Tf Mili{
mf-iiMi c/)aAuo,as.?tt, t7m
iOfxaKcivS TiaiT\( ivi^wm:! JttiT\hifj^ '/fu/j}fj!)i,
Mr. "B A R B E Y R A c's NOTE S on . II.
The Greek o'i Jrijlotlc li this, "fi?t
a,Mfuv ^lyvefxivuv [^ nvbuxai'] dvoj^HTM i;
^fcf a^XHAsf
;^f5(
^V?/)Vc.
* C/rfro's Words are, CiiJ!is\_j!/J}itia] tanta z'is ej1, ut 7iec tlli quidem, qui maleficio i^ fcelere pafaintur,
poffint fine
tiifa
farticula Jnftitia there. Conlult alio Ptato about this matter, in a Paffage which Gravius quotes, and Simplicius upon
EfiBetU!, Chap. 58. near the end.
^
J
We mull add. Of what Condition or Religion foever he be, to whom we engage our felves for any thing. It is a Precept
of the SchoLirs of Z!!rc<?;^rfJ-, a fort of Men in this not fo loofe, and more honcft, than m.any Chrillians : Cuvi quocunqui
fe-
teris paHum, id nefrangas. Kec piites tecum Jicere, ^amvis paaumfregero, id tamen nor. erit mihi feccatum, i^
ftvefit
cum aliquo in Religione r.ofira, fiive
extra earn, res perinde
eft,
(i. e.) With ^vhomfoever you make an Agreement, you muft not
break it Nor muft you fay v.ith your felf, If I break my Agreement, I do not fm, whether it be made with a Per-
fon ofour own Religion, or not. In Tho. Hyde De Rclig. Vet. Per/arum, i^c. In SadJer, Porta. 2S. See alfo the fine
Thoughts of Montaigne upon the indifpenfible Neceffity of keeping a Man's Word, Lib. 3. c. 9. Tlie Pythagoreans to accu-
llom themfelves to keep their Words in Matters of Importance, fliewed the greatett Exaftnefs in Things of a trifling Nature.
And of this they tell a pleafant Story. " One
Lyfis,
a Phrksfopher of that Scft coming one Day out o{ Juno's TempL
" one of his Fellow-Difciples, mmed Euryphamus, going into it, who dcfired him to flav till he had paved his Dev
e, met
evotions.
t
.
- - fcrupu ... _. ....
"
Word.
Jami/. de Vita Pythag. c. 30.
S-
185. Ed.
Kuft.
Doubtlefs this is an over-nice E.x-adnefs ; but 'tis better too.^end
on this fide, than to fuft'er ourfelvcs to be guilty of thele.ift Negligence.
* The Author begins here to dillinguifh between Agreements or Contrafts, and Promifcs, whereas in other Places he ufe
the Word Contraft in fuch a general Senfe, as to comprehend Promifcs, whereas a Promife is an Engagement made by him,
who makes the Promife ; and therefore to avoid all Equivocation, and not to make things obfcure without Neceffity, it is
better, when we fpcak fo in general, to ufe the Word Engagement.
^
See
DionyJ. Halicarn. \. z. where he tells the Story of the Confecrating Faith amongft the GoddeTes by Numa. Euripidts
Heracl. vcr.
890.
XfH d,-\.djfU ;'< inn
if/mhif ^'of^x. Truth's the bsll .M.vk of Honour and of Race.
L 1 gatiom
2CA Of
the Duty
of
keeping Faith
;
Book III,
mtions
then
in the firft place, are
diftinguifti'd in- of ruling and of punifhing in hh Kingdom
of Na-
to
connate
and
adventitious K Fid. Sander, de Oblig. ttire^ from his iyrcjifiible
Povjer
;
but did any one e-
Jur
Pndect. I. f. 1 1 . The former are fuch as all ver imagine that an Jtheijl was able to
ref.fi
the
Men fall under by
Virtue of their being Crca- Power
of
God ?
And therefore Atbeifis arc not,
tares endued with
Reafon, or fuch as neceffiirily ftriftly fpeaking, God's Enemies (as Hobhes defines
iCgard that all iVien arc uuiu luiancs, .uiia ad yet
incapable of the
exercife of Reafon, theie Obliga-
tions do for fomc time lie without Ad, or Force
>
and d.0 then at length
exert their Power, and ren-
der Men capable of
contrafting
Guilt, when the
Underftanding,
improving by Age and Ufe, makes
us fenfible of them. And from this Period they
date their Influence,
and
produce their penal Ef-
feas,fhould a Manbe never fo negligent in weigh-
ing and confidering
their Authority .
Therefore Ig
nfequently guilty of STJr^y&w againft the di-
vine Majeity, as Hobbes himfelfhas elfevv'here
"^
ex-
prefly acknowledged. And agreeably to this he de-
fines T/e^yoKagainll human Power to be; "When
one either by Word,or Deed, does in general ma-
nifeftand declare, that he will no longer fubmit
to that Man or Council of Men, in whom is
lodg'd the fupreamAdminiftration oftheState,or
when a Manwholly throws offthe Bond of civil
Obedience." It is no fuch obfcure Matter there-
in
C(
(C
mganclconliaeringi:ncirn.uujuiit).
^ li^i^x^.^^^^ ^^.^....^.
..........^
-..--_^-
..---
nwance of
the Law of
Nature is an infufticient Plea, fore to affign the particular Species ot Sm, to which
to excufe a Peifon of mature Years} tho'hefhould ^//:;> belongs. Nor is the following Aflertion
urge that it never came into his Headto refleft whe- built on better Grounds, that Atbeifts
cannot bepu-
therthisLawhadfettledfuchaPoint,
or not. Ad~ nifh'd any otherwifc, than by the Right
of
JFar; as
^'entitm's Obligations are fuch as fall upon Men the Poets reprefent the Gods, routing by torceof
by the Interveluion
of fome human Deed, not Arms the old Giants that aflaulted Heaven. On the
wkhout the Confcnt of the Parties, either exprefs,
contrary, that Evils infliaed in marml Encounters
or at leall p-efumptive.
are not properly Puniflr,nents,^v<^
iTiall hereafter have
IV
Amonaft connate
Obligations, fuch as are Opportunity to fliew. A Sovereign mult notpre-
planted as it were, in our Beings
the moft eminent fently be faid to make ufe ofthe Right
of
If ar, when
is" that which lies on all Men with refped to Al- he reclaims his rcfraftory Subjeas. For the bare
miahtv God, the fupream
Governor ofthe World} Right
of
Sovereignty includes thus much. That the
by^'irtue of which weare bound to adore his Ma- Peifon invefled with it fliall have the Power of re-
iefty and to obey his
Commandments
and his Laws, ducing thofe to Obedience by Force, whorefufea
Whoever wholly violates and breaks through this voluntary Submiffion. Much lefs are thofc rcbel-
Obligation,li:ands
guilty ofthe moft heinousCharge
lious Oppofers oflawful Authority to be accounted
oij^beifm;
becaufe he muft at the fame time deny
jufi
Enemies^ or fuch as have a Right of making
either the Exiftence of God, or his Care of hu- Refiftance.
,. /r
man Affairs Which two Sins, with regard to their It docs not excufe Hobbes to alledge that Paflage
moral Confequences
and EfFefts,
are equivalent to of the
Pfalmift,
The Foolhath faidinhisHeart, There
cich other
i
Ind either of them overthrows all Re- is no God. As if there was any fuch Nicety m the
ligion, rcprefenting it as a frightful
Mockery, in- Scripture Language, to call thote only Fools who
traduced to awe The
ignorant Vulgai" into fome fin out of A/i/?^c, and not thofe who offend w//-
Decency and Duty ^ Therefore we ought in
Ju-
fully: Or, as if this too were not thehighcftro/-
fticetodifcardand
explode, as moft foul and fcan- />', by a wilful Sin to incur the moft intolerable
dalous that Notion of//o/;Z'S
in which he would Torments, for the fake ofa very flenderPlcaiure, or
rank
i//:;>;amongft the Faults ofImprudence, or perhaps no Pleafure at alb Again, it is by no
Ignorance} asif it were not properly Sin, but a means a matter of fuch Difficulty, to dilcover the
Miflake.,ox Folly., more worthy of Pardon than of
Punifliment. The
Argument he makes ufe of runs
thus, T'he Atheift
neverfubmitted his Willto the M^ill
of
God., in as much as he never
believed there wasfuch
a Bcin". But now it is impofiible any onefioould have
Being of a GOD by natural Reafon, us to
find
out the Proportion between a Sphere and a Cylinder;
the Inftance which Hobbes makes ufe of It may
not be indeed in the power of eveiy unlearned Per-
fon to form, or to apprehend an artificial and
a fovercizn
Power over us, unlefs he obtained it by our
philofoph ical Demonftration of God s Exiftence
j
Confent Thereforefince
the Atheift was never under but he cannot thence claim a Privilege of fecurely
the Kingdom of
God, it follows
that he is not obliged doubting or denying it. For mas much as the whole
by the Laws of
that Kingdom'. But here it is moft Race ofMen in all Ages have conftantly held this
erofly fallc, that all Sovereignty is
conftitutedby Perfuafion, whoever would attempt to af^ert tlie
the Confent ofthe Subjea } for this will hold only contrary, muft ofNeceiTity
,
not only fohdly con-
with regard to human Dominion }
where unlefs by
our own Contraft and Confent, we cannot lofe the
Power ofrefifting another, who is by Nature our E-
ffual. But who will pretend to afTert that GOD
fute all the Arguments produced on the other fide,
but alfo alledge better and more
plaufible Reafons
for his own particular
Opinion.
Andflirther, fince
the Safety and Happinefs ofMankind have been hi
qual. iiut wno will pictcnu u) unci L liuil vj >^iv ,.i,^^,,,^^j
^..^^^^^^r
,\-
n u- t> r r
has not a Power of commanding his Creatures, un- therto thought to depend chiefiy on this Behet, it is
lefs they voluntarily agree to inveft him with fuch requifite, that he likewile prove Jthei
fin
to conin-
Authority
?
Nay,
Hobbes
'
has fufficiently confut- bute more to the Intereft and the good of all Nien,
cd himfelf, by
deducing the Right, which God has than the
Acknowledgment
ofa Deity. \\
hich be-
4
Mr.
Barbeyrac'j NOTES on .III.
^rnV in liis DifTertation on /;V7^/x, Lib. 3. c. 2. diftinguilhes alfo beween S;^t-< fwwief/, ;^
STi^w,
Habitudes,
or Relations natural and impofed.
=
Amlrof Offic 1. I . c. 26. Nothing hath more Influence in promoting an honeft Life than cur Belief, That we have fuch
a
IncWouVAaions
as no Secrecy can efcapc, no Indecency but will difpleafe, no good Performance but will delight.
Add
Uilant. DcIraDci, c.8.
" DeCivc, c .4-
!"
^9- c 15-
f- ^-
' C-
'5-
f-
S-
' C.
15.
f. 19,
^^
CH A p.
1 V. and tie
Divijion
of Ohligatiom]
255
ing a Task manifcflly impoffible, the Atheifts are or Injury.
In all this he only
rldiculouny
confounds
to be judg d Offenders, not only againll the Di- tht natural
with
thcpofitive
Divine
Law He nro
vine Majcfty, but aganifl all Mankind. And they ceeds to afTeit,
That
Man
confidcr'd
in'a 9/X nf
deferve the lefs Favour on this Account, becaufe Nature, is free from all
Religion,
not onh utonar-
thefe very Men who would reverfe the Judgment count
of
Ignorance, but by virtue
of that
common Li
of all People and oi all Ages, do arrogantly alTume berty, in which all arc born. For, fays he
if Menwerp
to themfelves a deeper Sagacity, and a clearer Light by Nature bound to the Divine Law,
or
if the
Divine
of Undcrftanding than the World was ever ac- Law were a Law by Nature, it
would be
fuperfluous
quainted with before. And confcquently, tho' that
GO
D
flmild afterwards enter
into a
ConfaEi
their Unbelief be indeed an Error, and a moft fa- with
Men, and oblige them by Oath
and
Co'-enant
tal and deftruftive one; yet it is fuch as they did Now it is cle.ar that thefe Pafts
orCovenaius
pafs
not fall into thro' Imprudence or Simplicity, but between
God and Men in reveal'
dRdmon
not in
by a vain and impudent Pretence of more than or- ''/-rt/, to which a Man immediately
ibndsobliced
dinary Degrees of Wifdom^ upon account of his being
created by God a rea-
It will be a very eafy Labour to refute thofe Ar- fonable
Creature. So that
Spinofa's Conclufion
is
guments, which i><
^
has alledged in defence moll vain and fenfelefs,
That
i;mWZ.z;^P_^/;.o;,,
of this Notion of Hobbes. The Thefu he lays down that time, when Men by
cxprefs Compact
promifed to
to work upon is this, Every one who cannot govern obey GODin all things; by which Deedthey receded as
bimfelf
by Reafon, may by the
highcft Right
of
Nature it
were,from their
naturalLiberty,and
transferred
their
live according to the Laws
of
his Appetite. And fore- Rightufon GOD,
juft
as Sovereignty is conferred
in ci-
feeing it might be here objefted. That the Afler- w7 States. For the Support of which Doarinc it is
tion was contrary to the Reveal'd Law of God, neceflary to fuppofe, that Men in a State of Na-
he anfwers. That a natural State is both in Nature ture had not their Exillence from God Almighty'
andTime antecedent to Religion
;
which with regard From this Obligation, by which Men are bound
to natural Religion is as abfolutely falfe, as what to pay Obedience unto God, fprin^s the Oblif^a-
he fubjoins, that no Man knows by Nature any Obli- tion of all Men towards all Men,
affuch
; by vir-
gation lying on him to obey GOD; and that noRea- tue of which they are engaged to lead' a firial
fon
can obtain this Knowledge, but fuch as is con- Life. How this is to be diicovcr'd,
it has been
firm'd by the Signs
of
Revelation. Therefore the formerly our Bufinefs to fliew.
Confequcnce he draws is moft abfurd, that before V. There is another fimous
Divifion of Obll^ci-
Revelation, no Man was bound by any fuch Divine tion, into natural and civil; but fuch as is by dif-
Law, as it was impoffible
for
him to be ignorant
of;
ferent Authors differently Hated'.
G;o/Lx obfci-ves
and, That a natural State is to be conceived
without that the Lawyers fometimes call aThino-
ofnatu-
Religior^ or Law; and
for
that
Reafon without Sin, ral Obligation,
the doing of
which Nature fhews
Mr. Barbeyrac'^
NOTES on . IV.
Ur.S^yk in his Thoughts about a Comet {Jrt.
177. ) diftinguiihcs between two forts of Atheifts, the one which be-
gins to doubt, and the other which have pafTed all doubting. Ot the firft Sort are ordinarily all thofe who bear the Nime of
Learned, but falfly
;
and glory m their Realon and their Contempt of bodily Pleafure; as alfo thofe whofe Souls are fubieft to
all forts ot Vices, which are capable of the worft Aggravations, and perceiving that the Fears of Hell caufe them no fm.ill Dif-
quiet, and imaginmg that 'tis their Iiuercft that there Ihould be no God, endeavour to perfuade themfelves that 'tis i'o
Others become Atheills becaufe they have been great Sinners, and are full of as much Malice as can croud into any Mm's
Soul. The fecond Sort are Infidels without defign, and moral Men. Mr. Bernard in his News about the Rcpublick of
Learning, November
1701, calls them both Atheifts by Refleftion ; but he after diftinguiflies them thus, giving the Name of
Atheiim in Fancy to him who begins to doubt, and of Athcifm in Heart to him who is part doubting. According to thi^ Author
'tis undeniable. That there are Atheifts in Heart in the World ; for, fays he. Perhaps, 'tis hard to maintain, that there arc
Atheifts in Mind in the World, who are confirm'd in Athcilm ; but there are fuch perhaps as labour under fo many Scruples
concerning the Being of a God, that they think it a Thing fo very dubious, that they can have no Certainty of it. But the
fame Author fays. There are Atheifts without Refleaion, who believe no God, becaufe they have never thought of it but
eHedtions, and this Syftem of the different forts of Atheifts. The Notion of our Author above -mention'd is not much diffe-
rent from the common Hypothefts of Divines, who with regard to common E.xperience determine a Matter of Faft by mct.i-
phyfical Reafons. I can't then but wonder, that he gives fuch a careltfs Solution of the Queftion, which he touches by the
bye, t'?2. Whether Atheifts ought to be punilh'd >. He maintains elfewhere
(
vix. in his Book, O/ the Duties
of
a Man and
Citizen
)
that they ought to fufter the moft fevere Puniftiments, Graz/ijfimis pccnis
eft
coercendu eorum impietau But on the
contrary, Mr. Iitius fays, that iuch Men ought not to be treated lo feverely. For, fays he, that Method of Puniflimeiit and
Force is not proper to cure a Man of Atheifm ; the only P unifliment of fuch as are in Error, if they will not be inftrufted is
to leave them to God's Judgment, Ohjerv.c)'^. on Pufend. For my part, I profefs, that if an Atheift makes an open De-
claration of his Opinion, and labours to get himfelf Followers by misleading fuch weak Judgments as are not able to anfwcr his
Sophifms and Subtilties, or by encouraging thofe vitious Perfons, who are ready thro' the Wickednefs of their Hearts to era-
brace his Tenets, fuch a Perfon may with as much Juft ice be punifti'd as he that teachcth others to thieve, murder, or cheat.
In this Cafe our Author's Reafons are very good : For thofe who difturb a Society by endeavouring to dcilroy an Opinion fo
univerfally received, and which is look'd uponas one of the ftrongeft Props of it, deferve as much to be treated as Criminals, as
an Atheift, conhder'd as fuch, for perplexing the common Belief of a God. Let him be content that he has found out the
unhappy Secret of Ihaking off all Tyes of Religion, and applauding his own Impiety, and not hope that others fliould follow
his E.xample, but be eafy, that they refolve to continue in the common Opinion for the Advantage sf human Society, knowing
how ftroug Impreflions the Fear of God has made upon moft Men.
(
See the Phllofophick Comment. Sec. Tom. II. /. 482, 483.)
But if Atheifts either in Mind or Heart do not pretend to propagate their Opinions, why fliould they be punifli'd purely as
Atheifts? The Nature and End of Puniftiments as they are ufed in human Judicatures, does not, in mv Judgment,
require that
ri!/ k
^'^ be ufed upon fuch. Their Impiety will be fufiicicnt Punifhment, if they continue in it to 'their Death; but 'tis pof-
lible they
may fee their Error, and by Conlideration remove the Sophifms by which thev arc at prefent blinded. Thefe Argu-
ments will have a ftronger Force, as to Atheifts, by Refledion, and therefore need not be enlarged on here.
bl\vT^'
^^^" "^^ Efpagne de Erroribus Fopularibus, f. i . c. 6. Bacon Eflay 16. and Advancement of Learning, /. 3. e. 2.
Add Plato de L. L. I.
9. near the end, where he diftinguiftieth the fcveral kinds of Atheifts, and direfls with what Penalties
they ought to be reftrained. "
Iraftat. Theolog. Politic, c. 16.
'
L. 2. c 14. f- 6.
i
LI i to
!Zt6
Of
tie Duty
of
keeping FaM
;
Book III.
fo
be
good
and
honeft, akho' it be not fti-idly a rity of civil Conflitutions. This is the DiiHnction
Debt : As for an
Executor to pay the entire Lega- commonly made by the Interpreters oi the Roman
cies,
without
referving
to himfelf what the '///- Laws.
cidian
Law
allows
him ; to requite aCourtefy re- VL ThisDivifionof Obligations into natural and
ceiv'd
to pay
Debts
which the Creditor has in Law civil., is a Subjeft which we ought to iniiil fircher
forfeited-
or
totheexafting
of which the M^c^'i^o- on in our prefent Enquiry
>
yet not fo much to
nian Decree may be
oppofed^. When any thing derive thence the 0/-/gi.'z/ of fuchTyes, but the /-
of this kind is
voluntarily paid', a Man cannot Jicacy or Force, which they bear in common Life,
recover it again, on
pretence that it was not due'*. So that by natural Obligation we mean fuch as
tho' he might at firil
have refus'd to pay it. binds us only by virtue oi the. Lawo? Nature ; and
Sometimeswecallthata^^r^/OM_g^?/owhich
by civil Obligation., fuch as is fupported and affift-
truly binds us j
whether
it caufe in the other Party ed by civil Laws and civil Power. The Efficacy of
a perfeH
or whether
only an imperfeli Right. In both is confider'd with regard either to the SubjeEf^
like
manner by a civil
Obligation we fometimes the Perfon in whomthe Obligation inheres
j
or the
mean fuch as is void by the Law of Nature, but Objedf, the Perfon in whom it terminates, or to
depends
purely on a rm/Li^w, of which the OM- whom it is direfted. In the firft refpcft, the Ef-
gatio literarum
(when a Man confefles a Debt in ficacy or Virtue of natural Obligation chiefly con-
wr'tinfT which he really
never contra6ted) is com- fills in this. That it binds a Man's Confciencej or
monlv'^brought
as an
Inftancej at other times it that every Perfon at the lame time when he fails
iignifies fuch as is
grounded on hoth Laws^natural of performing it, is fenfible that he has difpleas'd
and civil-
or fuch as will bear a good Action in Almighty God
>
to whofe Mercy as he owes
Courts of civil
Judicature.
his Being, fo he knows he ought to pay all poffi-
Others
with riiore
Clearnefs affign three Species ble Obedience to his Laws. And akho' we cannot
of Obligation.)
purely
natural., purely civil., and mis'd. indeed, in the Lawof Nature, difcover any precife
The firft
depends
entirely on naturalEquity '-y and and determinate ^wa/ Sanctions., yet we ought on
in fuch a manner, as not to found any/ffioin civil all Accounts to acknowledge, that it is enforced by
Courts. The fecond
arifes meerly from the Force fome fuch due Fruits and Confequences
j
and that
oi civil Law in the
Striftnefs and Rigor of which the Author of Nature will infallibly inflift great
it will bear an Action ; tho' fuch an
*
ASlion will Evils on thofe who violate this Obligation., which
alwavs in point of Equity be invalidated
''
by the the juil Performers of it fhall as infillibly efcape.
Tudp;e^
;:^%t\\tObUgatioliterarumheioxt-mcntlOYCd. For the Truth of which Belief,amongll: manyAr-
The third is fuch as is at the fame time fupported guments,one veiyconfiderablePrefumptionisthat
hy
natural Equity.)
and confirm'd by the Autho- remorfe of Confciencc, which attends the A(5torso
Mr. Barbeyrac'.; NOTES on . V.
'
Which is the 4th Part of the Inheritance, which the Roman Laws affign the Heir ; infomiich that if the Legacies exceed
this
4thPart
the Heir is not oblig'd to pay the Overplus. See the Digejls, Lib.
35.
Tit. 2. ad Leg. Falcid. and Datmai's
CiW/ L<.m in their Natural Order, />^r/n.Z,^^.
4;
T'^M-
,,,. ^
^
u t r
z
Q^j. i^yti^pr adJs this Sentence to explain Gr<?//^ s Words above-mention d, which orflwoczw interprets otherwife. I'or
he favs the Debt is difcharged by the Punilhment of the Creditor, when the Debtor is excufed from paying what he owes to s
Man who is disfranchifed, or condemn'd to perpetual Banifhment; butGro/w's Quotations, and the following Difcourfe Ihew,
Thit the Difcharee
granted by virtue of the Punilhment of the Creditor was made by the Macedonian Law. Now this Decree
was' fo called from a certain Ufurer, who was the Caufe of it, call'd Ma;edo, and forbad lending to an Heir, and decl.ires all
Obli^-ations
void that were made by him. Infomuch, that they who had lent Money, could not in juftice require any Thing.
See the Di'tfti
Lib. 14.
Tit. 6. . 4.
See alfo the Interpreters oi Suetonius in the Life o{ Fefpajian, Chap. 1 1. There was
alfo a Law like it among the Lucanirt!is,'^ci.v v( dmTa Jk.vti<mi ;;^{e- it^iyxj^^y rsftTO/ lum-
If any fhall lend Money to a
Prodit'al, he (lull lofe it. Nicol. Damafcen. dc Mcribta Gent.
3 We ought to take
particular Notice of this word A'<;/i';/<jr;/y, which our Author adds to expound Gro/w's Opinion, who
doubtlefs
fuppofed it.
Neverthelefs, Mr. Hertius, both here and in his Difl'ertation of an Aflion for a Debt due naturally, but
not bv human Laws, which is in 7cm. III. of his fmall Trafts and Comments, criticifes upon GrdC/a/ and our Author, as if
they had
fpoken of a Payment by millake. He muft fuppofe that they had forgot the Principles of Law, and did not remember
what the Raman
Lawyers had laid down as an elTential Condition of requiring again a Thing not due. He that pays a Thing
which he knows not to be due, muft be fuppofed to give it. Et qiiidem, ji quis indebitum ignorans folvit, per banc aaionem
condicere foteft,
fed ft
fciensfe
non dcbere folvit, ceffat
Repetitio. Digeft. Lib. 12. Tit. 6. De Condil. indeb. Leg. i. Cujus per
Errorcm
Dati
repetitio eft,
ejus confullo Dati donatio eji. Lib. 50.
Tit. 17. De Diverf. Reg. Jur.
Leg.
53.
+ Conditio
indebiti is a Right of requiring a Thing in juftice, which one has paid, but was not due. See DigeJ}. Lib. 12.
Tit 6. But that fuch a Right has no Place by the Faleidian Law appears from thefe Words of the Roman Lawyers, Solutum
i'eri non
repetitur.
Digeft. Lib.
35.
Tit. 2. Leg. i . . 17. As to the Macedonian Law, their Opinion is very plain, ^anquam
autem folvendo non repetant, quia naturalis chligatio manet. Digeft. Lib. 14. Tit. 6. Leg.
9.
in the end, and 10.
5
As for example. If a Minor has borrow'd any thing without the Confent of his Guardian, the Creditor can demand no-
thin'^ of him in juftice; but the Minor is ftill obliged by natural Right, or in Confcience, to pay what he has borrow'd. See
C-?'a/.
6. . 4. iVc/^5.
following.
_ _ .
, ^
*
This appears by full Rcftitutions, but in the main this Obligation being purely civil comes to nothing, as the Roman Law-
vers
themfc-lves have acknowledged, frying, It matters not, if a Man has no Right, if it can be made void by an Exception.
'}i(Tejl. De Diverf. Reg. Jur. Leg. \iz. See Mr. Noodt, De Forma emendandi doli mali. Chap.
5.
7
Among
the Romans that only was call'd a Law, which was enafted by the Votes of the People, upon the Propofal of the
Head of the Senate. They had alfo Plehifcita, which were the Decrees of the People, made upon the Propofal of the Officer,
chofen out of their own Order. The Laws and Plebifcita, with the Scnatus Confulta, or Decrees of the Senate only, the Con-
flitutions
of their Princes, the Edifts of their Magiftrates, and Determinations of their Lawyers, make up the Body of tiie Civil
Law.
For every Praetor, or Judge, when he enter'd upon his Office, put out an Edift, in which he inferted not only what
lie thought
juft and
equitable in the Edifts of his Predeceflbrs, but he added new Conflitutions, and fometimes made \oid fome
old ones.
This is what i^ called. Jus Prretorium, The Law of the Prstor ; or Jus Honorarium, The Honorary Law, be-
caufe the Prstor had the Title of Honoratus, i.e. a Perfon honoured. Hence it is, that the Praetors explain'd and correfted
the Decifions of the Civil Law, and fupply'd fome Defefts. See the //?////^. Lib. i. Tit. 2. De Jur. Nat. Gei:t. ^ Civil.
4. - , d5rV. I can t here but advertife the Reader by the bye concerning the Refcripts of the Emperors, that Mr. Skulling, Pro-
fefio'r at Franeker,
publifli'd
there not long fmce, viz. in 1708, a good Difcourfe to (hew the Force they were of.
Hor.l. I. Od.
34.
Parcus Deorum Cttltor, (^ infreqium
Infanientis dum Sapientice
Confultus erro : Nunc retrorfum
Vela dare, atque iterare curfus
Cogor reliBos.
Thefe Words of Horace our Author ufes here without auotinghim ; although, as Mr. Deiier verjr well obferves, the Poe^
ij^alis there in Jol;c only.
whons
25B
0/
the T>my
of
keeping Faith,
&cc. Book III.
whom it inheres.
Suchisomconnate Obligationto- a State oflnequality, was it in their Power, to inveft
wards
God >
which, even with refpedt to the Exer-
any Perfon with iuch an extraordinary and tranfcen-
cife can at no time be fufpended or diminifh'd. dent Right, as fhould difengage him from all 01;-
Suc'h
likewife is the connate Obligation of all Men
ligation and Duty towards other Mortals',
towards all, as
Partners of the fame Nature, which
IX. Mutual Obligations are fuch as anfwer to one
no Perfon can throw off, fo long as he makes a Part
another
>
fo that the Party who on the one hand
ofMankind
j
yet the Exercife of it may fometimes,
with regard to fome
particular Perfons, be fufpend-
ed . And this happens, when I devolve into a State
of
War with another. For the Obligation being re-
ciprocal, in cafe one Party break it, and return Hofti-
lities for the good Offices of Humanity, the other
Party is no longer bound to deal with him in friendly
receives a Due, on the other hand is bound to re-
pay it
'. Thefe again arefubdivided 'mto imperfeSl-
ly mutual, and perfelly mutual. The former are
fuch as anfwer unequally, one of them being op-
pos'd to another, which is either different in kind,
or in Virtue and Efficacy. This feems to happen
chiefly on account of one of theic two Reafons,
but may
maintain his own Safety, and his
either that the Perfons are unequal, one having a
fo foon as our own Safety is provided for, anden-
fured, we ought to be ready to renew the Peace,
and to return to the exercife of all Courtefy and
Humanity, towards the Party whobegan the'Con-
tention. Among'!\.
adventitious
Obligations \^t com-
_ _
monly reckon perpetual, the
Obligation ofChildren either by War, or before the Judge,
accordmg as
towards their Parents, and that which pafles be- the Parties live, eitherin a State of Nature, orun-
Obligation of the fame Striftnefs on both fides. For
it is clear that Obligations do thus differ in Force, or
Efficacy, fome producing zperfeSl
Right in the Per-
fon towards whom they are directed
J
fo as to found
an jicfion in human Cognifance, to be profecuted
twecn Husband and Wife
>
which fhall elfewhere
be explained at large
'.
temporal Obligations are fuch as may ceafe and be
cancell'd, whilft the Perfons in whomthey inhere
do yet exift in the World.
VIII. Farther, fince it generally happens, that
Obligations :ini\vcT one another, it may beufeful to
divide them into ;//, znd not mutual. AnOb-
ligation not mutual is, when one Party ftands bound
der a Form of civil Government >
whereas others
produce only an imperfeH
Right, fo that the Per-
formance of them ought not to be extorted by
Violence. From the former of thefe Caufes arife
the Obligations imperfectly mutual, betwixt Princes
and Subjefts, betwixt States and particular Mem-
bers, betwixt Mafters and Servants, Parents and
Children
5
all which will be examined in their pro-
per Places. The latter Caufe ofmakingOW/g^/ioKi
to perform fomewhat towards another
j
yet fo that imperfeaiy mutual, chiefly happen in Gales oigra
the other Party fhall lie under no
correfponding /;/oj Prowi/ij, and the Performances ofthem
.
For
Obligation,nor be tied to make equivalent Requi-
tal. Such is the Obligation of Men towards God,
by which they are engaged to pay him
abfolutc
Obedience >
but he on his Part is not conftrain'd,by
Virtueof any fuch external OW/^^?/o
', to make
any Return for their Obedience. Amongft thole
Obligations where both Parties are Men (if we ex-
cept afewContrafts,
binding only one fide) there
are none to be met with of this fort. AndtheRea-
whilll I promife any thing to another out ot tree
Favour, I perfectly oblige my
felf
to give it, and the
other Party has a Right of requiring it from me.
But becaufe I did not engage him to pay mean
E-
quivalent, he is bound to mc only by the Law of
Gratitude, which ties him much more loofly than if
he were my Debtor upon Pa^. For we cannot on
fuch unlimitcdO^%rt//oK build our Hopes or our AP-
fiiirs, and therefore Ihould the Party prove imgrate-
ful in the highell degree, we do not reckon our
fonis, becaufe it feems repugnant to the natural
_ _ .
Equality of Men, that one Perfon fliould be bound felves properly to have receiv'd any Lofs or Pre-
to another, and the other Perfon lie under no En- judice: For 'tis a Miftake in fome Authors to af-
o-agemcnt towards him. For we cannot
'
appre-
"
fcrt, "That Nature gives us ^perfeSi Right to claim
hend them to be fociable Creatures, who are not "a Return of our Benefit, from an ungrateful Per
united by a common Tie, who have not a mutual
Communication of Services j
but of whom one
feems to be made as it were for the fake of the
other, and the other is not bound in Return to con-
tribute any thing towards his Intereil:, or Happinefs.
"
fon
"
j
though in moft Commonwealths, the
"Courts of Lawrefufetoadmit an Aftion on that
"
Score." Nor is this a good Confequence, The Ne-
ceffity of
returning a Kinilnefs is greater than that
of
giving one ; therefore the latter is founded upon an
NorjWhen Menby political Infl;itutions introduced imperfeil Right, the other upon a pcrfe^
Mr. Barbeyrac'j
NOTES on . VII.
! See Lib. 6. c. i. and 2.
_, ,^^,,
Mr. BarbeyracV
TVOr^^ o . VIII.
'
Our Author exprelTes himfelf thus by way of Oppofition to that wliich the Goodnefs of Go d requires of him. See Lib. t.
C. I. . 3-
and c. 3. . 5.
aforegoing.
t r^ n l \ \xr a
This Period, not containing at leaftdireftly a Reafon of what the Author w.is fpeakmg of before, Hi^pert that the Word
etiim has crept into the Text inftead of eliam, either through the Carelefnefs of the Author or Printers
;
altho' it is found m
the laft Edition of 1706,
of which Mr. //t-mV// had the Overfight.
r ,_ r -n htuI,
3
We can't maintain this, without encroaching upon the Prerogative of God, who impofes thefe Duties on Men by ttie
Conftitution of their Nature. This we ought nicely to obferve, that we may underftand the jull Extent of the Rights of a
King, which are founded upon the Power which every Man can and is willing to grant to him over hiijifelf- Sec my
Notes
on Lib. 7. c. 8. following.
_^ ti^
Mr. BarbeyracV NOTES
on .IX.
'
See Lib. 5. c. 2. . 5.
following.
See c. 3. .17.
aforegoing.
Fos
C H A p. V.
Of
the Nature
of Promifes,
6cc.
259
For,however the Cafe may Hand before,yet when rent Degrees
m
Obligations
of the fame
kind*-
I once have promis'd to do a Favour, there hes cfpecially v/hen we are to
compare fuch Duties
iL
gxe-Atcr NeccJJIty
on meto perform it, than on the as concur in point of Timc\
other Party to return it'. For there may be diffe-
3 To perfcft the Reafoning of our Author, we niuil remember, that the Foundation of the
Difference
between oerf A A
imperfca Right, arifeth from the neceflarv orunneceflary Influence that a thing hath in eftablifhing
Peace and Soci t
Men and not finipty a degree of Obligation from the matter of the thing. So that though we are more
indifpenfibl/ob
W
to the Duties of Thanklulnels than of Beneficence, the firft ought not to authorize us to ufe Force or luftice
tomakcu-n- f
them, rather than the laft; becaufe neither of them arc of that Nature, that the Continuance of Peace or Society
doth nerer"
farily require the Praftice of them. In iome Cafes the Duties of Gratitude ought to give place to thofe of Beneficence
as whe
a
Benefaftor may want, or at leaft fpare without any great Lofo or Trouble, a thing of which another Perfon has ereat need
"
4 See my Notes on Lib.^. c. 12. . 23. following.
'
Comp. Boeder, ad Grot. l.i. c. \.
f.
4. See what fliall be laid hereafter in i;i. 5. c. 12.
/ 23.
C H A P. V.
Of
the ISlatHre
ofPromifeSj and Fa^s^ or
Co'uenantSy in general.
The Contents of eveiy Paragraph of the fifth Chapter.
I. Mljence adventitious Obligations arife.
II. What is Mr. HobbesV transferring
of
Right,
in. NoMan has a Right to all things, as Mr. Hobbes
ajfcrteth.
IV. In what a transferring
of
Right
confifis.
V. A meer Affertion doth not oblige.
IT
now folloAvs in courfe, that weenquire how
fuch Obligations as are not born with Men,
iliouid by virtue of fomeA6t of theirs be kid
upon them, by which means there arifes, at the iame
time, in other Perfons a Right which before they
wanted. Forthefe two moral QuaUties have fuch a
mutual Relation and Dependence, that whenever
there is produced an Obligation in one Man, there
immediately fprings up a correfpondent Right in
another; for 'tis impofHble to appreliend that I
am ^o</ to any Performance, unlefs there befome
Perfon in the World, who can either fairly require
it, or at leaft fairly receive it of me. Tho' the
Remark will not hold i:ice "cerfa, that v/here-ever
there is a Right in one, there mull: prefcntly be an
Obligation in another. For example, the Magiftrate
has a Right ofrequiring Punifhment for Crimes
>
but
fuch ^ Right as is attended with noObUgation in the
Criminal
'
^.
Unlefs we folve the Doubt by this
Diftinftion, That if we take Right in a flri6t and
clofe Senfe, for a Power or Aptitude to haz-e any
thing, then there is always in fome other Perfon
anObligation anfwering to it; but not if the Word
be taken for a Powerof (/o/^ anything. This then
in the firft place, is clear, that all adventitious Obli-
VI. An imperfeSl Promife obligeth, but dees not give
another a Right.
VII. A perfect Promife.
VIII. Promifes in the
future T'enfe give no Right.
IX. X, XI. Whether there be a Povoer
of
obliging in
bare Padis or Covenants.
gallons ^mcetd either from
-xfimplc^ox fi-om a mu-
tual Att
;
of which the former is properly call'd a
free Grant
oxPro.mfe^ the
hxitX'S.Paciox'Covcnant.
II. But inafmuch as all acknov^ledge
that Pro-
mifes xr\APaSts do transfer -x Right to others, before
we proceed, it may not be improper to examine
Hobbes's Opinion ''about the
transferring of Right.
He then, from his Projeft of a State
of
Nature,
having inferr'd, that every Man hath naturally a
Right to every thingjznd having
firtherfhewn,that
from the Exercife of this Right there muft needs
arife a War of every Man againft every Man, a
State very unfit for the Prefen'ation of Mankind;
he concludes, "
That whilft Reafon
commands
"
Men to pafs out of this State
of
IVar, into a
"
Condition of Peace, which Peace is confiftcnt
with a Right of every Man to every Thing,
it
"
at the fxmetimc prefcribes that Men iTiould lay
"
downfome part of this univerfal Right. A Man,
"
he fays, may lay down, or diveft himfelf, of his
"
Right two ways, either by
fimply renouncing it,
"
or by transferring it to another. The former is
"
done, if he declares by fufficient Signs, that he
"
is content it fliall hereafter be unlawful for him
"
to do a certain thing,which before he might have
Mr. Barbeyrac'j NO'TES on Chap.Y. . I
aniwer each other. Tundam. Jur. Nat.
(J Gent. Lib.
3. c. 7. . 10. But this only proves, that there may be a Cafe where,
one Man's Right becomes of no worth by the Oppofition of an equal Right in anotlier Perfon. In like manner, certain other
Duties fo clafh fometimcs, that one of them mull give place in certain Circumftances, without being lefs obligatory in general.
In the E.xample of the Plank, we mull fuppofc^as I have faid elk-where, that it belong'd no more to the one than to the other,
and neither of them was feizcd of it alone. For then the Right of Property of the firft Occupyer would lay an Obligation of
giving place on him againft whom any of thefe Titles could be alledged. But yet the other, who was not in the fame'Cafe, be
It he to whom the Plank did appertain, might lawfully hinder him from ufing that Inftrument to fave his Life, which Provi-
dence had furnifti'd him with ; fo far is it from this, that he ought to help us, if he can, to feizc it.
" "Tistrue,
Punifhments are not due to Criminals by virtue of any Compaft; but fince the Right of Life and Death,
Right of the Sword is conferr'd upon Sovereigns, we are oblig'd not to refift 'em when they make'ufc of that Right, th(
or the
upon Sovereigns, we are oblig'd not to relilt 'em when thev make ulc of that Kiglit, tlio' it be
upon our own
Perfons. See Mr. Barieyrac's Trench Tranflation of this Book, lib. 8. c. 3. /. 4.
Kote%. and
/
5.
DeCne,
c.2. f.3,&c. iS Leviatb. Engl. Book I. c. 14.
lawfullv
'260 Of
tie Nature
of
Promifes
Book III.
lawfully
done. The latter, if he declare by fuf-
"
ficient Signs to another Pcrfon, who is willing
of the Field ; but he docs not by this Aft preju- be made out more at large in its proper Place*
"
dice the reft of Mankind, who ftiU keep their
"
primitive Right, as well to this Spot of Earth, as
"
to eveiT Thing elfe which Nature affords.
III. But as we have formerly made out% that
t-liis Hobbcfian State is by no means natural to Man,
a Creature delign'd for a facial Life;
fo neither can
weadmitof what the lame Author
thuseftublifties
as the Confequence and Refult of it, fuch aRight
of each Man to all Things, as fhall produce any
Effect in reference to other Men. For the clearer
Illuftration of this Point, it is ncceflary to obfer\-c.
That not every natural Licence,or Power ofdoing a
I V. The proper Notion then, of transferring and
of acquiring Right, will appear with moreExaft-
nefs, if we premife,that (oma Rights bear a regard
to Perfons, others to Things ; and that the latter
kind of Rights is again divided into Original and
Derivative. I acquire a Right over a Perfon, if he
either exprefly or tacitly confents, that I fhall pre-
fcribe to him what he ought to do, to fufter,or to
forbear ; by virtue ofwhich Agreement he both ob-
liges himfelf voluntarily to ftudy Obedience to my
Pleafure, and at the fume time grants me a Right
of compelling him, in cafe of dehiult,to his Duty,
Thin"-, is properiv a Rizjot; but fuch only as in- bypropofing fome confiderable Evil, which I fhall
clude?fome moral' Effeft, with regard to 'others, otherwife bring upon him. A Man then acquires an.
who are Partners with me in the fameNature. Thus,
for inftance, in the old Fable, the Horfe and the
Stag had both of them a natural Power or Privi-
lege offeeding in the Meadow -, but neither ofthem
Iv.id a Rights
which might reftrain or take off the
natural Power in the other. So Man, when heem-
ploys,in
hisDefigns and Services, infcnfible or ir-
rational Beings, barely exercifes his natural Power,
if without regard to other Men, we here precifely
confidcr it in reference to the Things, or Animals,
which ho thus ufes. But then at length it turns
into a proper Right, when it creates this moral
Effect in other Perfons, that they ftiall not hinder
him in the free Ufe of thefe Conveniences, and
ihall
themfelves forbear to ufe them without his
Conlimt.
For 'tis ridiculous Trifling to call that
Power a
7'?/^/:'/', which fliould we attempt to exer-
Original Right over Things^ when all others either
exprefly or tacitly renounce their Liberty of ufing
fuch a Thing, which before they enjoy'd in com-
mon with him. This original Right being once
cftablifli'd, by virtue of which the primirive Com-
munity of Things was taken off, the transferring
of Right is nothing elfe but the pafling it away from
me to another, who before was not Marter of it.
Hence appears the Abfurdity of faying, That the
transferring of
Right confijls barely in Non-ref.fiance.
Inafmuch as that negative Term cannot exprcfs the
Force of the Obligation arifing from fuch an Adj
which properly implies an inward Inclination to
make good the'Contracl : Tho' Non-refiftance be
indeed one Confequence
ofthe Obligation^^nd with-
out which it cannot be fulfilled. The Inftance a-
bout the Field,
propofed hyHobbes^does not come
Mr. Barbeyrac'5
NOTES on .
IIL
'
Our Author reafons here upon a flilfe Suppofition, which I fhall confute in its proper Place. See my Notes on Lii. 4-
1 from
thim-
4 All that can be faid is this, that before the Property of Goods was fettled, no M.m ought to exclude another always from
the ufe of any one thing, and when they had no farther ufe of it, it return'd to the firll Occupier, as il he had enjoy'd it 1
I'clf by that Title.
We may obfen'c here, as Mr. Hertius direfts us, what the modern
Lawyers call, Tr/tRatus ineunaarum Conventionum,
\.e.
a Treaty in order to an Agreement ; ox,Pa6la contraauumprceparatoria, i.e. fome previous Covenants in order to Contntls,
which we may call. Preambles or Difcourfes, by which we feem difpofed to enter upon a Bargain, and teftify fome Defire of
Agreement, but conclude nothing pofitively. For in this Cafe every Man is free, and there muft be a new Treaty to render the
Agreement full and entire. Hence it is faid in the Digejls, That if any one hath promifed to lend us any Money, we may
receive
it, or not, as we pleafe, ^ii pccuniam creditam accepturusfpopondit creditori fitturo. </; poteflate hahet, ne acciplendoJe fi o'yftrtngat.
Lib. 1 2. Tit. I . De Rebus Creditis.kc. Leg. 30. See what Mr. Hfrtius fays there, and in his Parcemia Jur.German. Lib.i
.
c.8.
H-
'
De Che, c. z. f 6, !ic. & Leviath. Engl. Part I. c. 14. (i) In the lift Editions o^ the Original there is ejfeaum
for
mffclium, which entirely corrupts the Senfe; and yet Mr. Hertius has retain'd it in the laft Edition of 1706.
Chap.
V. and Paffs in general.
to him to Jay the Right over a thing, which
ought to morrow to be aftuallydclivcr'd to him.
Nor is it any Objcftion againlt what we have
been aOcrting, that according to the ordinary Form
and Manner of Speech, moll Promifcs are exprefs'd
in Terms of Futurity. For in thcmoft folcmn En-
gagements by formal Stipulation^ or by Oath, wc
ule the lamewayof fpeaking, ?o ihnil hairfuch a
thing of
me, I will give fuch
a things &c. The reafon
of which Cuftom is, that the delivering of a thing
promis'd, generally follows at (omc Dijlance. And
indeed, we can fcarce call it a Promife, when at
the dime time tlic Intention of giving is declared,
and the thing aftually tender'd ; inafmuch as there
fcems here, citlier to ha\'e been no Obligation, or
fuch as expired in the very minute that it was
contrafted. However, it is plain the Generality
of Men never think they properly have a thing,
till they get firm Hold and full PofTeffion of it. n
then thcfe Terms of Futurity occur in a perfetl
Pyoinif[\, as for inftance. To morrow I will give you
an hundred Pounds, the Scnfe of them amounts to
this, I now give you a Right to have and to require
of
me the faid Sum ; and I likewifc oblige
myfelf
on
the Day appointed, to deliver it to you accordingly.
We m.^y fettle the whole Point with moreBre-
by only laying, that Verbs of the future
263
vitv.
Tcnfc, made ufe of in Promifes, and efpecially the
Term of Giving, do either imply an Obligation
hereafter to be contra6tcd, and then they neither
transfer the Thing, nor the Right, to another
j
or elfe they import the delivering of a Thing here-
after, the Right to which either is now, or h;isbeen
formerly transfcrr'd ; and then they do not hinder
the. Promife from being moll perfedland compleat.
IX. It is requifite, that whilll we are engaged
on this Point, we endeavour to fettle a famous Que-
ftion, which has been much canvafs'd by Authors,
VV hethcr there can be a Force ofobliging in barePro-
mifes,or in bare Padls, whilll they arc no more than
verbal Agreements, and are not llrengthen'd by
any actual
Performance betwixt the Parties
*
?
Coniianus tl\e Civilian has been the principal Afler-
tor of th-j negative Side
j whom Grotius *, and
others havelabour'd to confute. And indeed, it has
been the fix'd Opinion of wife and learned Men in
all Ages, that Faith ought to be kept inviolably,
though given only in Words , or that a Man by
/peaking only, without the Intervention ofany Deed,
may lay on himfelf
aNeceffity
of fome future Per-
formance'*.
7//. Off. I. C.7.
The FoHtidation
of
Jujlice is Faith, that is to fay,
aFirmnefs and truth
in our JVords, Promifes, and
Conlradls. Hence
fome will have the word Fides to be calPd Qiiia fit
quod dicirum ell, i^ef^ye that which
wasfaid is done,
Ulpian in l.i. D.dePaElis. What is fo agrccableto
human Faith, as to obferve mutual Agreements?
nd. D. I.ii. c. 14. dePaSlis. It was avery wicked
Jell of the petit Prince of Bantam, when being
reproved for Breach of Promife, he anfwer'd,
His Tongue had no Bone in it, to make it more
fliff than was necediuy for his Intcrell'. Whe-
ther
Connanus has with any Colour oppofcd this
iiniverfal
Judgment, will appear, if we bellow a
little time on taking his chief Arguments under
Confideration. In the firll place then, he Hiys,
that he who rafily believes a Promife made without
Caufe, is no lefs to blame, than the vain Perfon who
made it. Now here all the Difficulty lies in ex-
plaining what he means by a Promife made with-
out Caufe. If he would be underllood of fuch
Promifes as if not perform'd, it brings no Lofs or
Prejudice to the Party,to whom they were direfted,
and if fulfiU'd, mull needs create Trouble or Da-
nrage to the Performer
j
we are willing to allow,
that Engagements of this kind produce no Obli-
gation. For how can a Man have any Right of
requiring me to put myfelf to any Charges, or
any Toil, in doing a thing which fhall profit him
nothing"' ? And it is indeed ngainll Reafon, to
undertake an Aftion which can produce no Good,
and may produce Evil. Thus for mllancc,fuppofe
you had got me to promife you that I would for-
bear eating four Days together
,
upon what account
fhould I Hand to fuch a raflt Engagement, if fo
long a Fall would prejudice my Health, and yet
would contribute nothing to your Intereil or Ad-
vantage ? Therefore in this Cafe it is alike vain
and foolilTi in one Man to make the Promife, and
in the other ferioully to challenge the Perfor-
mance. Befides, fince Promifes are Matters of
Grace, or fi'ee Favour, they ought to be inter-
preted under this Condition orLimitation, Provi-
ded I can compafs the Thing
I
fpeak
of,
without any
confiderahle Damage to myjelf. Nor can the Perfon
to whom I make the Promife be fo impudent and
unrcafonable,as to defire that myKindncfs fliould
be an Injury to me, and that I fliould enrich him
Mr. B A R B E Y R .\ cV NO TES on . IX.
'
%'j:'ii>^iy/uit. Sec what is faid, Lil>. 5. c. 2. . 2, 3.
*
Cr.mmast.'Jtir.C.iv. Lib. 5. c- i. Y^wxVix. Buddein in \\\%Element. Philof. Pra^. Part II. c. 4. ^.g
alTcrts, That this Lawyer
is fildy acculcd of ;niy fach Opinion. Mr. Hcrtius alforejefts the Opinion of a certain namelefs Perlon, who ]a^\{isi. Connanus,
and m.iintnins. That that Perlon fp.ikc only of fiinplc Contrafts, confidercd as they are ufcd in the Roman Judicature. For he
fays. We mull: here diilinguilh bet\\cen tliefe two Proportions ; the one is, That Promifes produce a natural Oblig.ition, and
the other, That the natural Oblig.uion which arlfcs from a Promife, does not produce a Civil Obligation, which is founded upon
a Ma.xim of the Law of Nature, \s-hich authorizes a Sovereign Prince to declare what Obligations fliall be valid, and what null.
Nevcrthelcfs according to Mr. Hcrtius, we need only to read Connanus's Rcafons to convince us, that he denie,'; Pjomifes to pro-
duce any Obligations able naturally and of themfcives to give a perfeft Right, without the .'MFiftance of the Civil Law.
5
The Latin of Cifero is, FunJamentum Jajfitiee
eft fides, i. e. d'lBorum conventormnqiic conftantia is* Veritas, eaque ile caufa
fidem apfcllatarn, quia
fiat
quod diftum ell.
* And U//>ian's, i^'id tarn congruurn
fidei
bumanar, quam ea, quit inter eos placuerunt fervare?
5 Mr. Barbeyrac'/ '^th Note is iiifcrted in the 'Text.
*
We mull diftinguilh here between P.ifts or Agreements, which may be called Momentary, which are perform'd
immediately,
.ind leave no durable Efieft after them, and Succeflivc, whofe Performance is accompanied with a long Train of EtFefts. As
to the firft, there is no Neccflity that they fhould have any impulfive Caufe, or fuitable Motive ; but as to tlie latter, they do
not oblige, unlefs thev have a iufficient impulfive Caufe, or which comes to the fame, unlefs they tend to profit. That fort of
Engagements which want this is not only unprofitable, but hurtful to Society ; becaufc by tlie Duration of their Effeifls they may
caufe Trouble and Dilorder in the Affairs of the World. As for example, if any one promife not to alienate his Eftate without
the Confent of his Neighbour. See the
);,ff/?j.
Lib. 2. Tit. 14. DePaelis, Leg. 6i. ( and Mr. Hcr//.vj's Difiertation, en-
titled, De Paao, ne Dominus rem fuam alienet, Tom. 3.
Opufc.) In fine. Men having eftablilh'd
Pacts and Covenants for their
Advantage, and not to hurt or deceive one another, every Agreement, which aims not at the l.^ll of thefe Views, may be, and
ought to be looiv'd upon as null by the natural Law. Tit. Obferv. in Lauterbach. Obf. 59.
See L:i>.
5
r. a. . 3.
Nile 7,.
nulla voluntas
eft.
Digeft. Lib. 50. Tit. 17. De Diverf. Reg. Juris Leg. 40.
*
Nam neque teftamentum relle falium, neque ullum aliud negotium refte geftum,
f
oftea furor interveniens perimit. Inftit. Lib.2.
tit. 12. . I. SeealfoCod. Lib. 6. tit. 22. Slui teftamenta facere pojfunt. Sec. Leg.
9.
5 We call properly a Civil Death, the State of them who are condemned to Death, perpetual Banilhment, or any other
Punifliment, which implies an Exclufion from Society and a Civil Life, upon which account they areas if they were not.
Among the antient Romans fach i^s lott. their Freedom, or Right of Incorporation, either both together, or the lalt only, were
accounted in the fame State, which was called Capitis Maxima, l^ Media Diminutio, as ih^ Digefts fpeak. hitere:mt autem
homines quidem maxima aut media capitis diminutione. Dig. Lib. 17. tit. 2. Pro Socio, Leg. 63. . 10. See alfo,
Inftit.
Lib. l<
tit. 1 5. Decafit.
Diminutione.
Mr. Barbeyrac'j NOTES on 5. IV.
'
I have tranfpofed this Paragraph, and put the Author's fifth Seftion inftead qfit, making this my fifth, becaufe the Au-
thor after he had fpoken ofthe Promifes of fuch as have loll their Reafon, ought, according to his own Method, to liave went
on to the Promifes of Infants, and not have interrupted the thread of his Difcourfe by tre.ing of the Promifes of Drunkards,
which might better make a Chapter by it felf, becaufe Drunkcnnefs is a tranfient Accident, whereas Infancy and Folly are
States of long continuance. By this Tranfpofition, not at all inconvenient, I preferve the Natural Order of things, which
will be my Excufe.
*
'Tis a general Rule, that fuch Agreements as are null upon account of fome Incapacity of the Perfons making them,
may become valid, if that Incapacity ceafes, and the Perlbn approves or ratifies the faid Agreement. So if a Minor, being
come to Age, ratifies or executes a Contraft which he made in his Minority, it becomes as irrevocable as if it were made after
he came of Age. See
Digeft.
1. 26. tit. 8. Z)e Authoritate (J Confenfu Tutorum & Curatorum, leg. 5. . 2. & Cod. 1. 2. tit.
46. 8i majorfaBus ratio habiierit. See alfo what our Author fpeaks %. 14. in this Chapter, and wha; I have faid in my Irea-
tife of
Sports, 1. 2. c. I .
J.
7.
2
in
Chap.
VI.
making Tromifes and Pacts,
269
in
fine
difpatch moJlJ
fairs
of
Peace andWar. They
think no time
fo
proper as this^ becaufe the generous
Heat of
the Liquor
.y
as it opens their Hearts, and
takes
off
all Dljguifcfrom
their Thoughts,
fo
it infpires
them ivith brave Refolutions andhardy jittempts. They
are
Strangers 1 Craft andDifjimulation, and the Li-
berty
of
the Tablegets out all they hwj/, and all they
defim.
But thejettling and
finifsingof Bufinefs is
left
to the next Day, -whentheir Minds are clofed, and
their Judgmentsgrown cool. TJius they make the right
Ufe of
each Time ; they confult nuhilfl they cannot dif-
femble,
andthey refolxe when they cannot miflake. The
like is reported oixht Per
fans
by Herodot.'mClio,
1. i. c. I
}
3
. Athenieus, 1. iv. c. 10. Curtius, 1. vii. c.
4.
Add.
Plutarch
Sympof.^tft.
l.vii.c.c;, &
10.
'.
It is true indeed, that Faults committed in Drun-
kennefs are not on that account excufable
".
Le-
giilators have then thought fit to punifh even Igno-
rance, when the Perfon is the caufe of his own Ig-
norance. And therefore a double Penalty is ufual-
ly enacted againif drunken Offenders. For here the
Excefs, and coniequently the Ignorance, was of the
Man's own procuring, it being in his Power to
avoid ihem. Ariftot. Ethic. 1. i. c.
f.
I. 10. It
was one of Solon\ Laws, That a Governor taken
in Drunkenness iliould be put to Death ; and Pitta-
cus decreed, that a Fault committed under this Dil-
order{hould have atwofold Punifhment. Laert. 1. i.
in Pittac. Becaufe, though a Perfon whilif the fie
is on him knows not, perhaps, what he does, yec
in as much as he voluntarily applied himfelf to
the ufe of fuch Things as he knew would call a
Cloud on his Underftanding, he is fuppofed to have
yielded Confent to all the Effects of that Dilbrder.
Yet it will not follow from this Confideration, that
the Promifes of drunken Men are Obligatoiy
5
be-
caufe there is great difference between committing
a Crime, and contracting an Obligation. Forfince
there lies an abiblute Prohibition againft all Sin,
therefore Men arc to avoid all Occafions that may
probably draw them into a Violation of their Du-
ty. And how many Enormities Drunkennefs be-
trays a Man to, is obvious to the meaneft Appre-
henfion. AnAftionthcn in itfclf finful, can by no
means lofe thatCliarafter by
proceeding from an-
other Sin which led and difpofedaMantoit. But
on the other hand, fince it is left to our free Plea-
fure, whether we will contraft new Obligations, or
no, we arc not (as in the other Cafe) bound to a-
void all Occafions which may render our Confent
imperfeft and invalid. As we are not bound to de-
cline Sleeping, out of a Fear that others fhould in-
terpret our 'Nodding or Winking foraTokenof
Agreement to fomevvhat which they propofed. To
thispurpofe, Smton tells us a jefting piece ofKna-
very in Caligula. He made an Auction of his fu-
perflaous Gladiators ; and as the Cryer was per-
forming the Sale, Apo^iius Saturninus, zGenllcmiin
o? ihe Pretorian Dignity, happening to deep upon
one of the Benches, the Emperor commanded
the Cryer to take notice of the worthy Chapman
that nodded
*
to the Price propofed. And the
Bufincfs w.is lb managed, that the poor Gentle-
man had laid out ninety thoulandSeiterces before
he knew a Word of his B;u-gain. P'it. Calig.
Chap. 3*8. Therefore if Drunkennefs had no o-
thcr ill EtFect, but that it made a Man fccm to
give fomc Indications, which at another time
would imply Confent, it would not on this bare
Account be elleem'd unlawful. And fince a Man
cannot contrat anObhgation by Promife or Pact,
without agreeing to it, and at the fiime time un-
derftanding theBufinefs, we cannot infer his Con-
fent to fuch an Engagement from his firftconfcnt-
ing to make ufe of a Thing, which would proba-
bly hinder the Exercife of hisReafon. Efpccially,
if we confider, that Men feldom drink mccrly for
the fake of ftupifying their Brain, but their gene-*
ral Defign is to comfort and cheat Up their Spi-
rits; and the former Effect fleals upon them almofl
infenfibly, whilfl thev unwarily profecute the lat-
ter. To make the Difference appear more mani-
feftly, we may add, that fince the Property of a
Crime or Offence is to bring fome Evil upon fome
Man, and of aPromifc to bring him fome Good,
which before was not his due, and fince to be
pofitively hurt, or injured, is more odious in the
eyes of commonJuilice, than barely not to acquire
fome Benefit, there is much more reafon why
Drunkennefs fiiould invahdate a Promife, than
why it ihould cancel a Tranlgreillon. As for a Man's
being bound to pay for that ufelefs load of Wine
which he pours down, after his Stomach is al-
ready overcharg'd, and which he wauld refufe,were
he in his Senfes; this Obligation arifes from the
Contraft made at thefirlt fitting down, by which
he engaged himielf to give the Price of whatever
he fhould drink, though he drank it to no purpofe.
If during this Fit of ibttiffi Extravagance he be
guilty of any mifchicvous Frolicks, as throwing a-,
way the Liquor,deltroying the VcflelsjOr theWin-
dows, and the hke, he Itands bound to make Satisfa-
ction by the general Law ofRep.rration
of
Damages.
V. How ' long Children continue under fuch a
Weaknefs of Reafon, as renders them incapable
of contracting Obligations, we camrot univerfiUy
determine ; in as much as ibme arrive at a Maturity
of Judgment fooncr than others. Therefore in
fettling this Point, regard is to be had to the daily
Actions and Proceedings of the Pcrfons, from
whence the beflConjefturesareto be made about
their LTnderftanding ; or commonly we have re-
courfe to the pofitive I^aws of the Country
; all
^'/^^toalmoft having fix'd this Period by their par-
ticular Conflitutions, and fooner or later
%
accord-
ing as they found their People to be naturally more
brisk andapprehenfive, or morclluggilh and hea-
vy. Amongft t\\Qjews, a young Man might ob-
' See Mr. Thomujsus's Difcourfe, De Hominibus froprUs, 13 Liberis Germanorum, .12. Max. Tyrii/i, \.iz. and Dr. Potter'^
Creek Antiquitia, 1. 4. c. 20. as alfo Briffon. de Reg. Perf. 1. z.
*
Some Nations inflifted a double Punifhment upon fuch as had committed any Crime in their drink ; and by one ofSo/on's
Laws it was enadled, if a Ruler or Magiftrate were found drunk, he fhould be put to Death. The Words are, T''Af^r]it
tt^ u'-^'wi' ^Mj--'>i, hrLvATTiv livaji rivl^'niMtt.v. Diog. Laert. in Solane, 1.
1.^57'
See Afca^^^ upon this PafTage.
s
In all the Editions of the Original it is nillando ; but befides, tliat the fhutting of the Eyes is no fign at all of Confent,
the PafTagc of Suetonius, which our Author quotes, fhews, that either he or the Printers fet it down for nutar.do.
Mr. B A R B E Y R A cV NOTE S on . V.
'
This Paragraph is the fourth in the Original. See Note i . on the former Paragraph.
*
This Age is not the fame for all Contrafts, for there are fome Things that they can do at 14,
Years of Age, and others nat
till Zy
*
Crebn capitis motu nutantsm.
N
n lige
i^70 Of
the Conjent required in Book IIL
lige himfelf by Promife after thirteen Years of {aftions with Foreigners. Not fo much as (as
Age, and a young Woman after twelve. But Grotius fays in B. ii. c. 1 1 . .
f
.)
becaufe he who
becaufe Perfons of tender Age, though they may enters into Contraft in any Place, is during
that
fometimes tolerably underjiand Bufinefs, yet for Aflfair, bound by the Laws of the Country as a
the moft part al with too much Vehemence and kind of temporary Subjedt, as becaufe no State
Raflinefs, are too free and eafy in their Promifes,
will admit of an
*
AEiion in its Courts ofJuftice,
eager and over-confident in their Hopes, proud upon a Bufinefs not conformable to its Conftitu-
of being thought generous and liberal, ambitious tions, unlefs it has particularly declared, that in
and hafty in contrafting Friendfliips, and not fur- judging the Caufes of Strangers the bare Law of
nifii'd with pmdent Caution and' Diffidence, it Nature fhall be followed. The fame is to be fiid
has been wifely order'd in moft Commonwealths,
of Contracts madeby Letter, between the Subjects
That in contrafting all Obligations ' they fhall
of different States, when upon Dctaulr, either of
be fway'd by the Authority of graver Heads
;
till them fues the other in the Courts of his own Coun-
fuch time as their Raflinefs and Heat of Youth try. For though here the injured Party may not
fhall appear in a good meafure to be abated. Hence have made himfelf, fo much as for a time, a Sub-
in fome Places,
whatfoever they do in their own jed of the other Commonwealth
;
yet, if he de-
Names, during their Minority, is declar'd null fires Redrefs by its Afiiftance, he mull fubmit his
and void j
in others, if they have been cozen'dor Cafe to the ftanding Laws
''
: Or fiippofing two
over-reach'd, they are allow'd to recover full Sa- Subjeds of the fame Nation fhall enter into a Pad
tisfation
*.
/^/V. 1. xi. f.
J,
i^c. 1. xxiv. f. i. or Promife, in fome place which acknowledges no
1. xliv. D. de Minorlbus. The Law of Nature it Sovereign, as on the wide Ocean, or in fomeDe-
felf plainly direfts, that thefe Provifionsfhould be krt IJIand, they muft rieverthclefs have recomfe
made by pofitive Conftitutions. Efpecially fince to the Laws of their Country, if they would ob-
he would juftly forfeit the Charafter of his Ho- tain a full and perfcft Right to what they bar-
nefty, who fliould make his Advantage upon this gain'd for^ or an yff7/o to hold good in Court up-
eafy
Age, and enrich himfelf at the Coft of thofc, on Failure on either fide. How the Cafe ftands
who for want of Judgment and Experience, ei- v/ith Reference to the Afts of thofe Perfons v.'ho
ther could not forefee, or do not rightly apprc- are placed above the Power of cwil Laws, it will
hend the Lofs
^
*.
The f;me Law of Nature en- be our Bufinefs elfewhere to enquire
^.
joins, that when any Statutes or Cuftoms of this VL Another thing which mvalidates Confent ',
kind have been eftablifh'd in a Commonwealth, and by Coniequence the Promifes or Pacts that are
they fliall be ftriftly obferv'dj not only by the built upon it, is Error or Miihke
-
; through
Subje6lsamongftthemfelves,butinall their Tran- which it comes topafs, that the Underftanding is
3
The Aitick Law in th'u lefpeft put Women in the Cifc with Minors; not allowing them to bargain for any thing beyond
a Buftiel of Barley, itA 71 # yvd/u.n{ ai'^vif, on Account of the Weaknefs of their Judgnient. Dion. ChryffJ}. brat.
75. ifteui.
Oral. 9.
4
The Law grants this Privilege to him who hath been injured by any Aft, as a Party to it, to look back to the Age he w.-is of
before that Aft, if theie be a juft Caufe. See Digeft.
1. 4.
tit. i . and what Mr. Hcrtius fays upon that Title in his Objcrviit. in
Compend. Juris Lauterbacb, where he carefully diftinguifhcs the Maxims which may he drawn from natural Right from the Sub-
tjltics which the Roman Lawyers have perplexed the Matter with. Sec alfo Daitmat's Civil Laws, Part i . 1.
4. tit. 6,
s
We ought to obferve (as Mr. Placette fpeaks in hisTreatifc of Confcience,
p. 60.) That if, for Example, we meet with
fuch a dull underftanding at the Age alFignedby the Law, that there is not Senfe enough to oblige them fulHcicntly, we oiijhc
not to play upon their Simplicity, and engage them to do what we pleafe upon that Pretence. Doubtlel's fuch an Aihon would
be unjull ; and in this caie we ought to fay, as in many others, We ought to attend more to the Litention of the Law, than the
Terms. But here is another import.mt Queftion to be e.xamined into, and that's this. Whether if a Young Man engages iii.Tilclf
before he arrives at the Age fixed by the Law, he is bound in Confcience to do what he has promiied.' For Example, If he
has borrowed any thing before that Age, is he bound to pay it when he come-; to it ? Mr. Placette fecms to have determmed this
Queftion very well in thefe Words, The Cafuills of the Church of Rome, even the ftrifteft of them, anfwer by this liiftinftion.
If the voung Man has made a good ufe of what he borrowed, and in general, if the Agreement he has made be profitable and ad-
vantageous to him, he is obliged to ftand to it ; but he is not obliged, if he hath got nothing by the Bargain, viz.. if he has
fpent v^-hat he borrowed upon his Debaucheries, and other Exccfles. But Mr. La Placette adds, This is not my Opinion, and
fays, I can't allow, that a Man Ihould get by an ill Aftion, and free himfelf from his Engagement by a Fault. We m^y have
regard to other things, and in the firft Place confider whether he with whom we have contrafted lofeth any thing othervvifeby
the breaking the Bargain. For if he lofeth nothing, but all the Damage he fufiers, is only, that his iHope'; are difappointed, I
believe we are not obliged to make good the Promife we have made in that manner without any ill Defign. Did lie forelee the ill
ufe that was likely to be made of what he lent? If he did forefee it, and did lend with an evil Intention, he ought to lofe
what he lent, and impute the Lofs to himfelf; but if he had no ill Defign, and lent freely, 'tis my Opinion he ought to be paid;
and I am perfuaded, to do the contrary, and take the Advantage of the Law, is a Fault, which not only a tender Confcience,
but an honeft Man in the Efteem of the World, ought tobeafliamed of See my Treatife of Sports, 1. 2. c. 4. \. 12. and what
this Author fiiys, 1. 4. c. 2. . 11. following.
*
Mr. Hcrtius in his Treatife, De Collifione Legtm, which is in Tom. 1 . of his Comments and fmall Trafts, proves at large,
that we often judge according to the Laws of another State, when we have made an Agreement, either where the thing of which
we have tre.ited is found to be, or where one of the Parties has his Dwelling.
'
Grotius is of Opinion, 1. 2. c. 1 1. . 5. numb. 3. that in this Cafe we ought to judge only according to the Rules of natural
Right; s.xAyb.Hertius agrees to his Opinion. Sec the fore-mentioned Difcourie, . 56. and another of the lame \'olunfe
DeCommeatu Literarum, . 16, i^c.
*Scel.8. c. 10.
Mr. B A R BE Y R A cV NO fES on . VL
The three Conditions which arc generally required in a full and free Confent, as I have notfd above, . 3. Note i.are
not to be met with, i. In Promifes made in jeft and by Wuy of Compliment. 2 InPromiiesraadeby Miilake.
3. In Promifes
made by the Deception of others. 4. Nor in fuch as are made thro' Fear.
*
This tlieLaw fays, Nont'idrntur, qui errant, confcmire, Digeft. 1. 50. tit. 17. leg. 116. .2 See alfo Leg. 76. &1. 2. tit. i.
De JuriJdiBione, leg. I 5. oo Seneca, Demens cjl, qui
fidem pra-Jlat error!. De Bencf 1. 4.
c. 36. He muft be a Fool, who will
perform what he has promjfed through Error : Bijt hTc we muft mean.m Efiicicious -Error, as this Term is expounded, 1. i.
c. 3. <). 10. Note 2. and not a Concomitant Error; For by this Diftinftion our Author's Rules in fome places muft beexpbined
andreftified. fitius Ohferv. ziz. See the Notes upon the next Paragraph.
'..Demens eji, qui Jidm
{rcejlat errori. Sen. de Benef. 1. 4. c. 36,
cheated
Chap.
VI. making Vromifes and PacU, 271'
cheated
in its Objeft, and the Will in its Choice and Son's Death, which proving falfe, the Will became
Approbation. We ought here carefully to diftin- void and ineffeftualj fince it appears
that his be-
guiili,
whether the Caie relate to zPromife^or to a lief of that Report was the fole Reafon of his al-
PaSt. As for Promifes, we may lay down this for a tering hisMeafures. And hencetooit iseafy toan-
certain Rule, that if a Promife be grounded upon fwer that over-nice Quellion of Sir Ty^owz^j
^rowwe
Belief and Prcfumption of feme Faft
'
which re- in his Religio Medici; JVhether it was lawful
for
ally never was, or when in making an Engagement the Per/on whom Lazaiais had made his Heir to pof-
of this kind I fuppofcd iuch an Aftion, or fuch a fcfs the Goods ''j or whether the Owner upon his
Qiiality, without regard to wliich I fhould never being reftored to Life, had not a Right to chal-
havc given my Confcntj in this Cafe my Promife lenge them again? Where the latter muft without
is naturally null and void} provided it appear evi- doubt be affirm'd. For the reafon why the Goods
dent from the Nature and Circumftances of the of the Deceas'd pafs away to others is, becaufe they
Bufinefs, that I agreed to the Propofal purely on themfelves are taken out of the World, and con-
account of that Fad, or of that Quality, which fequcntly have no farther need of thefcPofleifions.
I took for granted. Becaufe, here I did not pro- Hence in many places, fome part of the Goods arc
mife abfolutcly, but upon Prefumption of a necef- fet afide to be given to the Poor, or to the Church
fiiry Condition ; which Condition faiHng, what- for the Benefit of the Soul of the Deceas'd. And
ever was built upon it, muft confequently come in the Pagan Superftition, it is ufual to bury or
to nothing^. Thus, for Inftance, fuppofe I have burn fome of the Goods with the dead Body, for
been inform'd that you have done me a Kindnefs the Service of another Life,
in promoting and well-ordering my AfFairs, and But in cafe the Promifer was negligent in fearch-
upon this fcore I have promis'd you a Gratifica- ing into, and examining the Condition upon which
tion; you will not fay I am bound to Hand to my he built his Confent, he fhall be bound to repair
Word*, when I find the Intelligence was abfolutely any Damage that is fuftain'd by the other Party,
fiilfe. By the fime Rule we may decide the Cafe upon account of his idle Engagement,
propofed hy Ciccro'm Lib. i. DeOratore^ c. 38. "A If the Promife was not grounded upon the Pre-
"
falfe Report was brought home of the
'
Death fence or Abfence of fuch a Quality, as a neceflluy
"
of a certain Soldier abroad in the Wars. His Condition, then tho' the Promifer was miilaken
"
Father believing the Story, alter'd his Will in in that Point, yet his Obligation fhall ftand good.
"
favour of another Heir, and afterwards died. If the Pi-omife were but in part occafion'd by an
"
The Soldier at laft returning fafe, fues thePof- Error, it may as to the reit of it remain valid
j
"
fefTor of his Inheritance." It was here urged for unlefs one Part were included by way of Condition
the Plaintiff, that the CmVZ^iy declares fuch Wills in another
j
or unlefs the Parts cannot feparatcly
of a Father to be milium which the Son is neither be perform'd} for then an Error in part deitroys
made Heir, nor yet particularly, and by Name, the whole.
difinhcritcdi neither of which was done in the ^^/// VII. As forMiftakes in P^i??/, it feems neceffary
now under Confideration. But to this thcDefen- to diftinguifh whether the Per/on was thro' Error
dant might have return'd, that the Law cited on drawn into the Bargain, or whether there proves
the other fide plainly fuppofed that the Father knew to be an Error as to the Thing or Subjeil for which
his Son to be living, which here he knewnot,but he bargain'd. In the formerCafe we iTiould again
imagin'd the quite contraiy. Therefore it might enquire, whether any Step is made towards Perfor-
perhaps have been a more clear and eafy Way of mance,or not. If I am prevail'd with to enter into
afferting the Soldier's Title, to proceed only upon a Pa6t or Contraft upon Miftake, and I find this
the Law of Nature, and to alledge, that the Fa- Miftake out, before any thing is done in order to
ther's Will was grounded upon Suppofition of his the fulfilling of the Agreement, it is but cqui-
5 The L.-iwyers diftinguifh between an Error of Fat, and' an Error of Right, ;. e. of Right pofitive, and build dixcn
Determinations upon it. See Daumat^ Chit Laws, Part I. 1. i. tit. i8. ^. :.
* yir-ThomaJius mhis Juriffrtid. Diz/in. I.2.C.7.
.43.
fays, That a Man is obliged in this Cafe to keep his Word, efpe-
cially if he did not exprefly infert that Condition in his Promife, or he in whofe behalf he is engaged, ufed no falfe Pretences
to perfuade him. But from the Moment that he knows in any wife that he promifed upon the Account of fome Service done
by him to whom he made the Promife, the Condition is of the fame Nature as the Thing. And fo the Non-performance of
the Condition makes the Promife nxill, as much as if he had declared it before-hand in exprefs Terms ; fince, as we may fup-
pofe, nothing clfe could incline him to promife. Another Thing is in the Cafe of Horfes bought upon a falf'e Report, as our
Author fpeaks in the following Paragraph, where read Note 2.
5 The Words in Latin are, De cujus \Militi!\ morte, cum domumfalftn ab excrdtu nunciits venijfet, (J Pater ejus, re credita,
teftamentum miitaffet, Jif quern ei vifum cjjet,
feciJJ'et Haredem, ejfetque ipfe mortuus ; res delata
eft
ad Centumviros, cum Miles
domum
rcTeiiiJfet, eg:Jfctq:ie lege in harcditatem patcrnam teftamento exharesJilius. See alfo, Val. Maximus, 1. 7. c. 7. ^. i.
and Mr. Sci:ulti?:g\ Oration Dejtirijfrud. M. T. Cicer. p. 260. Mr. 7homaJius in the Place before quoted,
^. 44.
obferves,
th-it this Example is nothing to the purpofc. For, he fays, the Senfe of a Will ought to be expounded in a clear different
manner from an Agreement or Promife, as well becaufe a Will gives no Right to him to whom the Teftator has bequeathed hi;
Goods, as becaufe he requires an Acceptation on liis part. Befides, in Wills we ought to have fome regard to the Laws; and
above all, to fuch Conftitutions as are made in behalf of Children. But it is evident, that our Author fpeaks here only of the
manner how the Queftion ought to be determined by Natural Right only. I fhall fhcw in its,projjer Place, that a Will gives a.
Right to him that is appointed an Heir, altho' it be not an irrevocable Right.
*
So the Law fpeaks. Inter catcra, qvis ad ordinanda teftamenta necejjario dcfiderantur, frincipalejus
eft
de liberis hieredi-
lus
inftituendis, vet exh^redandis; ne frxteritis iftis, rumfatur teftamentum. Digeft. 1. 28. tit. 2. De liberis ij fofthumis
Hteredibus
inftituendis, iffc. Leg.
30.
' There was a Book printed in
170;, wherein this Queftion was ferioufly handled. The Title is, Henrici Ferduyn. &c.
Difquifitio Jurifprud. de
Teftam. i^ Haredit. Laxari bis mortui, aliorumque bis inortuorum. In ordinem
red'egit bf auxtt
Tekias Boel, Junior laus. Wc m.-.v learn the Subflance of it in a little time from the Extrafl of it given in tke Works of the
Learned printed at Paris, /ttm
170J,
\^c.
..^ l^.D.deJurifdia.
N n i
bls
2y2
Of
the Confent required in Book
III.
table
that I fhould have Hbeity to retraft
j
efpe- find that he has no occafion for his Purchafe,
yet
cially
if upon making the Engagement, I plainly he cannot force the Seller to refund the Price,
and
declared the Reafon of my Proceedings ' . But ifthe to take back his Horfes, unlefs this Condition
was
Erior be not difcover'd till the Pai is either wholly exprefly mention'd in the Agreement,
or in part perfoiTn'd, then the Perfon who lay un- But when there happens to be a milhke
about
dcr the Miitake, cannot demand a Releafement any the Thing which is the Subjeft ofthe Contraft,
then
forther
than the other fhall, upon a Principle of theBufmefs is mil; not fo much upon account of
Humanity,
be content to allow him\ For in- the Miftake', as becaufe the Laws and Terms
of
ftance a Man being at a Dilbnce from home, the Agreement are not really fulfill'd. Inafmuch
as
receives Valfe Intelligence,
that he has loft all his in all Bargains the Matter, about which they are
Horfes.
Upon this
Information he enters into Con- conccrn'd, and all the Qualities of it, good or bad,
traft for the Purchafe of new ones >
but before the ought to be clearly underltood, and without fuch a
Money or the Horfes are deliver'd, he finds himfelf di ihnft Knowledge the Parties cannot be fuppofed
to have been deceiv'd in the former News. Here to yield a full Confent. And therefore upon dif-
we ludge he is notbound to fulfil the Bai-gain, inaf- covery of any Defeft, the Perfon who was likely
much
as the Seller veiy well knows, that the fiilfe to fuffer may either draw back from the Engage-
Account of his Misfortune at home was the Rea- ment, or may compel the other to fupply what is
fon of his Purchafe. Yet he is in Equity obliged to wanting
'*;
and likewife to make Satisfaftion for Da-
make fome
Confideration to the Seller
;
at leaft to mage, if occafion'd by his Deceit or Default. And
repay
the Damage which he fuftains bylofing the this, not only if theDefeft be immediately found
Bargain. But iiTcafe the Money and Horfes were out, but if it appear at fome Diftance of Time,
on both fides deliver'd, tho' the Buyer fhould now Which Period or Interval, when it is not fix'd
Mr. BarbeyracV NOTES on .VII.
'
Provided (
asour Author fays in his Abridgment of the Duty of a Man and Citizen
)
th.-it the other that makes the Con-
traft receives by it no Damage, or that it be repaired to him. The Example that is alledged a little lower, fliews, that it is
another Condition which the Author puts. But fee Note 2.
*
The Author is not confiftent with himfelf here. For, if in the firll Cafe there is any good Reafon to excufe him who has
made a miftake, fo that he may lawfully retraft, why fhould not the fame Reafon be good in the fecond Cafe ?
[
The delivering
of a thino- confider'd in itfelf is a Phyfical Aft, which can't deprive him of his Right, who has it ; nor give it to him that has
none. Whence it comes to pafs, that when one hath p.iid what he ought not, he has not lefs Right to require again what he
has done, than if he had forgiven him that which he had not deliver'd. See Mr. Thomaftui'i Jurifpnid. D-.vin. 1. 2. c.
7,
4.
45,
46.
1 Further, if in the firll Cafe we have Right to recant, how are we obliged to repair the Damage ? The truth is,
in both Cafes we are indifpenfibly obliged to keep our Word. For if the Error be invincible, 'tis neverthelefs only concomi-
jjjjj (
fee /. I . r. 3. .
10. Note 2. ) and conlcquently does not exclude a neceffary Confent in our Agreements. In fine, thi
Reafon obli<'es us to conclude, that the Price doth not at all influence the Engagement farther than as it is an Indication of out
manner of Dealing, and can't be formally inferted into it as a Condition to render it null, fo that the Error which is commit-
ted thereupon can have no manner of Effcft as to the Validity of the Contraft. The Roman Lawyers own the Truth of this
Principle in a like Cafe, I mean, in the Subjeft of a Delegation made thro' millake. See DJgeJt. 1. 46. tit. 2. De Novatiolii'
bui i^
Delefntionibus, Leg. 12, 13. The fame thing has place in an Onerous Cor.traB. For ex.imple, in a Bargain of Sale, when
there is a Miftake, as to the Perfon with whom we treat, taking him for another. For this is only an Error concomitant, having
nothins in the Contraft which neceffarily requires that he with whom we treat fhould be certainly fuch or fuch a Man, or at
leall that he fhould declare himfelf, and we fhould afKrm, that we dealt only with Peter ( for example
)
and no other. Moll
of the Interpreters of the ^5CT<? Laws do indeed quote fome Lav/s, which feem to ellablilh the contrary ; but if we examine
thofe Places, we fhall find that they treat of fome Aft of Liberality or Service, or fiippofe in the Perfon dealt with Ibme Care,
Induftrv, or other particular Quality ; for then 'tis effential to a Contraft, that the Contraftor be certainly he whom we believe
him ; iiifomuch that if we are miflaken in that, the Error is eflicacious. Titim Obferv. inPtifend. 214. and in Lauterbach.
513.
'
The Author oppofeth things here one againil another, which have no Appearance of Oppofition, but are the Confequents
one of another. For the Error, in which one of the Contraftors was, fhews, that he conlented to a thing that really was,
and confequently, that the other Contraftor did not fatisfy the Intention of the firfl. Titius Obferv. 215. In fine, this hath,
place alfo, when the Seller as well as the Buyer really believes, that a Bafon of Tin, for example, is Silver, and no other Metal.
For the Error of both the Contraftors docs not hinder, but that it is effential to the Bargain, that the Bafon fold Ihould be Silver,
iind no other Metal. SeeZ);^^//. 1. i 8. tit. i. De contrahemia EmptionCi leg. 14. But it is not fo, when the Thing, or the
Quality of it, wherein the Error confiftson both fides, doth not come into the Bargain. A for example, if a Man fays only.
How much will you have for this Bafon or Metal ? without explaining himfelf any farther, whether he is about buying a Vefl'el
or maffy Piece of Silver. In that Cafe, fays Mr. Tbomajius, the Contraft is in Striftncfs good and valid, altho' fair dealing
does require, that the Seller, to whom he has paid for Tin inflead of Silver, fhould give him part of the Price back again. For
we mufl lav this down as a general Maxim, That in a doubt, if a Man miftakes, 'tis fo much the worfe for him; becaufe it
belong'd to him to explain himfelf. See Jurifprud. Divin. 1. 2. c. 7. .
39,
is'c and c.w. ^. 22, 23. and what fliall here-
after be faid, /. 5. c. 12. . 5.
Note^^.
* This is too much from the purpofe. Something more exaft ought to have been faid to give us an Idea of the EfFcfts of
an efficacious Error. This Maxim may be added to thofe of our Author, If he that is miftaken aims at that chiefly wherein the
Error lies, the Agreement is abfolutely void, and he hath liberty to recant ; but if he had not the thing itfelf in view, altho' he
could
heartily wifh it had been what he believed it, the Agreement is good, and he can have a Right only to demand fome Sa-
tisfaftion for the Fault he overlook'd. As for example, if a Man in a great Neceflity buys an Houfe, which afterwards he finds to
be fubjeft to feveral Services, as he did not principally endeavour to have it free from all Services, that alone don't break the
"Bargain; but he may demand of the Seller, that he lefTen the Price in proportion to the Inconvenience that thofe Services
bring,
with which he did not think the Houfe was charged. It is very probable that tlie Roman Lawyers did follow this Prin-
ciple in their Praftice. Nevcrthelels the Determinations which we find in their Writings are neither accurate enough, nor con-
fonant one with another, as this Reafoa will fliew. That they may build the Efficacioufnefs of Error upon the Conucftionof
the thing in which they are miftaken, with the Efience of a Bargain, they only confider the Natural Conftitution of the thing
in itfelf Hence they dillinguifli the Error which hath for its Subjeft the Subftance or Matter of a thing about which they treat,
from that which falls only upon the Qualities of the thing. But here we are not examining what relation the Objcfl of Error
hath to the Matter of an Agreement, we only enquire upon what Foot the Bargainers confider'd it ; and if it appear that they
had only fome certain Quality in view, 'tis the Error alone that refpefts that Quality, that can make the Bargain null, as mach
as if It tell upon th thing itl'elf Titius Obferv. in Piifeiid. 216. and in Lauterbach. 511. See Note
^.
at the bottom of
the
following Pa^f,
2
by
Chap.
Vf. making
Vromifes and
Pafls.
27c!
by
the civil Laws, is to be determin'd by thcAr- Art of Cookery, and the
Man
whom I receive
bitiation of feme honeil Referee
j
that no Indul- proves utterly ignorant of the
BufincL<;
and inca-
gcnce
may be given, either to the Fraud of the pable of ferving me in that
Condition '.
'
one
Party in conceahng, or to the fupine Negh- VIII. Much more ought
viMijUke
to
render a
gence of the other in examining the Bufincfs. And Promife or Paft invalid^ if it were occafion'd
by the
the
larger Space of Time is to be ailow'd, if the
Fraud of one of the Parties, who by that
nieans
Defeft
were fuch as did not appear to external drew the other into the Engagement.
What
Force
View,
or could not be difcover'd but by Men of or Effeft the Pradice of Deceit in thefe
Matters
extraordinary Sagacity and Skill. will bear, may be clearly ftated by making thefe
As to that common Maxim with the Chilians^ Enquiries
5
firft,as to the Author of the Knavery
that an Error in the EJJentiah of a Pal difannuls
whether it be he with whom we bargained
or a
the
Agreement
%
but not an Error in the Jcdden-
third Perfon. And in the next place,
whether the
rals or Circumilances
J
we are fo to interpret it.
Deceit was really the Caufe of our Encraoemcnt
as by the EJ/huials to underltand, not only what without which wehad not ventur'd
upon'lt^rwhe-
makcsuptheP/jjy/ra/f/fw^of thething bargain'd
ther it was only accidental to the
Bufincfs, which
for, bur hkewifethofeQyalitiesof it,to which the
Ave had neverthelefs undertaken,
but were now
Contractor had an efpecialEye and Regard'. For
cheated in theThing and itsQiialitics, or the true
it frequently happens, that in a Bargain fome^^?-
Price and Value of them. If the Trick was put
lity of the thing fliali be chiefly eikem'd and va- upon us by a third Man, the Party
with whom we
lu'd, and the Subftance or natural Conftitution be tranfadt not having been accellbry
to it, and the
only look'd on as a neceffary Adjunft or Ve- 'Thing for which we bargain'd
proves without
hicle"^. Thus my Contraft will not only be void, Fault
^^
j
in this cafe the Agreement fliall ifand
if I buy fuch a particular Slave of a Merchant, good'j but we may recover of the Knave what-
and he fends me a different Perfon''
>
but likewife ever we lofe by his contrivance.
If the Party him-
if I bargain'd with him for one skilful in the felf with whom I contraft,
by
fome Deceit draws
5 The Intention of the Contraftors muft be known by the Circumftances. Here's an Example taken out of the Determi-
nations of the Roma?! Lawyers, wherein yet they do not exprefs e.xaftly the Difference between the two Cafes propounded
^od
fi
me virginew mere futarem, cum ejfet jam muUer, tmftio valebit, in fexii enimnon
eft
erratum.
Crctcrum
ft era mulie-
rem vendercm, tu piiernm emere exiftimafti,
quia in fexu error
eft,
nulla emptio, nulla venditio
eft.
Digeft. 1. i8. tit. i. De
contrahcnda Emptione, &c. Leg. 1 1 . . i .
The Reafon why, if a Slave which is bought prove a Woman, whereas he thought
it a M.ui, the Bargain of Sale is not void, is, becaufe there is no other apparent Mark of a Woin^n from a Man, but the Bis-
nefs, he had no Caufe to think he bought a Man rather than a Woman, but that he did not fufficiently explain himfelf ; fo
th.it the Error is only concomitant, and can't turn to the Prejudice of the Seller. But 'tis not the fune as to the Sex which
are fo differenced by the Habits, that they can't be miftakcn, unlcfs by fome Fraud orDifguife. And fo the Buyer mufl be fup-
pofed to make his Markets for the Sexes according to their Habits, and then the Error is efhc.icious, and confequently the Bar-
gain is null. Titius in Lauterbach. Obf. 514.
If the Buyer believing that he purchafes a Man, the Seller, who knows his In-
tention well, leads him into an Error, and fells him a Woman without declaring it, the Contraft is void, as the Law fpeaks Si
quis virginem
fe
emere putajjet, cum mulier venijjet, &'
fciens errare venditor eum
pajftis fit,
redhibitionem quidem ex hac c'aufa
non ejfc,
verum tamen ex empto cotnpetere aBionem ad refolvendam emptionem, i^ pretio reftituto mulier reddatur. Diged. 1. ig.
tit. I . De Aaion. Empt. & Fcndit. leg. u . . 5.
See what Mr. Noodc fays upon this Law in his Treatife, De forma emen-
dandi Doli mali, &c. c.
9.
*
Plenifque res oHquando propter acceftiones emimus,
ficut cum Domus propter Marmora, &Statuai, iff Tabula: piBas ematur.
Digeft. 1. 18. tit. I. leg.
34.
in initio.
7 Vid. 1 18. Priiic. D. de Contrah. emptione. Cicero {pro ^Rofcio, c. 10. ) fpeaking of a Slave who was at the fame time
claim'd by Fannius and Rojcius ; What belong'd to Fannius ? (fliys he) his Body ; ^vhat to Rofcius ? his Aiivit\. Not his Face but
his Skill was valuable. The fhare which Rofcius had in him was worth double to that 'wliioii Fannius could challenge,
iffc.
Mr. BARBEYRAc'.f NOTES on . VIII.
'
By Fraud
(
which the Civilians call Dolus malus, or Dolus only
)
is underftood any fort of Surprize, Deceit, Craft, Cheat
or Difiimulation. In a word, any corrupt Methods, direft or indireft, pofitive or negative, by which Men malicioufly de-
ceive others. For there are innocent Errors, as that of a Medicine, which inflead of curing enrages the Diftemper. Itaque
ipfe\Labeo'\fie definiit, Dolum malum
ef'e omnem calliditatem, fallacia?!!, machinationem ad circumveniendum,
fillcndum, deci-
piendum alterum adhibitam. Labeonis definitio vera
eft.
Digefl. 1. 4. tit.
3. De Dolo malo, leg. i. . 2. Non fuit aatem con-
tentus Prretur DOLUM dicere, Jed adjecit, MALUM, quoniam veteres dolum etiam bonum dicebant, i^ pro folertia hoc nomen ac-
cipiebant, &c. ibid. . 3. See Mr. Noodt^ Treatife De forma emendandi Doli mali, c, i , & 2. In fine, tho' where tliere is a
Fraud in the one Part, there is always an Error in the other ; yet ordinarily the Invalidity of a Contraft is entirely founded
upon the evil Intention of the Contraftors : For that Reafon alone is in the main fufhcicnt to make an Engagement void.
*
The Lawyers call a Damage without Deceit, Dolus in reipfa, which is grounded on this Law of the
Digefts, 1. ac.
tit. i.
De Verbor. Obligation, leg. 36. 5/ nullus Dolus interceftit ftipulantis, fed ipfa res in
fe
Dolum habet, &c. But we ought rather
to call it the Vice or Fault of a thing, than a Fraud. For the word Fraud agrees properly only to a perfonal Cheat
(
as we
fay) which fuppofcs an ill Dcfign in one of the Parties, or a third, and an aftual Performance of fome Deceit. Fraudis in-
terpretatio (as the Roman Lawyers theml'elves fpeak
)
femper in Jure civili, non ex eventu duntaxat,
fed ex confilio quoque de-
fideratur. Digcll. I. 50. tit. 17. De Diverf. Rcgul. jur. leg.
79.
Otherwife tlie Law from whence this Diflinflion of .1
perfonal and real Fraud is inferred, is commonly mifunderftood, as Mr. Thomafius obferves in his Difcourfe De aquitate Cere-
brina leg. 2. Cod. de refcindcnd. Vendit. c. 2. . 4.
See /. 5. c. 3. . 9.
3 It being underftood that the Motive which by the Deceit of a third Perfon, inclined us to promife or treat, hath a necef-
fary Relation to the Foundation of the Engagement, ;. e. that the Error is purely concomitant. For if (for example) any-
one makes me believe that all my Horfes are dead, and I declare to him that fells me others, that I did not buy them, but
upon this Suppofition, that the News is true : The Moment that I difcovcr the Falfhood, the Bargain is void, by virtue of
the Condition which was formerly mention'd, and the Seller is to take care of him that hath deceived me. See \. 7. Note z.
before-going.
"
Vid. /.
57. D. deOblig. 13 Aa.
''
Add. 1.
9,
10, u,
14, 41. f i. D. deContrah. emptione.
me
27^
Of
the Confent
required in
Bo o k 1 1
1.
me into the Burinefs ,1am then free from all Obli- World, and reckons every piece of Knavery
a
gation to performance ^ If the Deceit were not piece of Wit
'
;
or if as to the prefent
Bufinefs
I
antecedent totheContraa,but happen'd in i/,\vith
find he has a
manifeftDcfignupon me; I ihall be
reference to the Thhit, bargain'd for, its Qualities, a ridiculous Fool, if by trulting to his Faith,
I
^c. the Agreement fhall be fo far void, as that it
expofe myfelf to his Fraud, and to his Scorn.
For
fhall be at the pleafure of the fuffcring Party, ei- he that runs into a Snare with his Eyes open, fills
ther to reverfe the whole Bufinefs, or to require
not only without help, but without pity\
Satisfiction for his Damage'. A Matter not f/^
Jhit'ial to the Agreement, nor exprefly confider'd
(**) Promifi lingua, eadem nunc r.cgo;
in it, fhiU not prejudice its Validity ; tho' perhaps Dicendi, non rem perdendi gratia hcec nata
efl
mihi
j
one of the Parties might have a fecret and fly Re-
Plaut. Curcul. Aft. v. Seen. iii. ver. zj, z8.
fpel to fome fuch thing in the very Aft of driving
the Bargain*. Upon what Right a Man may pro- 'Twas myTongue faid it; and myTongue un-
cced, in cafe he be egregioufly cheated, as to the fays it. Nature never gave me a Voice to be the
Price of any thing contrafted for, we ihall here-
Inftniment of my own undoing. And again in
after examine and declare. Rudent : Aft. v. Seen. ii. ver. 68. and Seen. iii.
IX. It comes now in courfe, that we confider ver.
17,
18.
the Point of FEAR,whatPower it has in rendring
human Afts incapable of producing an Obligation.
^i^h^ecfaaio
efi
? non debes ? non tujuratus es mihi ?
There are two Species of Fear, which efpecially fall
Leno. Jtiratus fum, ^
mmcjurabo
ft
quid'volup'
under this Enquiry. The former arifes from fome
tati eji mihi.
Vice or ill Difpofition in the Perfon with whom we Jusjurandum
neifervandte^nonperdenda^condittm
eft.
tranfaft, or elfe from his ill Will to us in paiticu-
lar ; whence we entertain a probable Sufpicion, that
What a ftir's here ? Don't you owe it .' Did not
he will deceive us. The other denotes a vehement you fwear Payment?
Terror of the Mind, caus'd by the threatning of Pimp. Yes, I fwore and I'll fwear again, whenever
fome grievous Mifchicf,unlefs vv^e engage in thePro- it pleafeth myFanfy.
Oaths were invented to pre-
mifc or Paft defircd. As to the firft fort of Fear, ferve Mens Goods and Eftates, not to rain them.
this is evident beyond difpute, that if I fee aMan
TheCharafterwhichPo/)^/;in^.VI./'.4p8.^.
who malces it his common Praftice to cheat all the Ed. Wech. Cafaiib. gives ofthe Grecians is not much
/
Indeed 'tis abfurd to imagine that a Man can by a defign'd and wicked Cheat, lay a valid Obligation upon another on our
Account. Nemo ex
fm
delilio meliorem
fuam conditionem facere poteft (
fay the mod judicious Roman Lawyers.
) Digeft. 1. 50.
tit.
1
7. Be Diverf. Reg. Jur. leg.
1 34. . 1 . Neverthelefs, thefe Lawyers, as lAr.Titius obferves (on Lauterbach. Ob/err. 1 1 6, 1
1
7.)
deliver here many vain Diftinftions. For they affirm, that a Fraud, which has been the Caufe of a Contraft, does render it
null in itfelf, and by Right
(
Ipfojitre ) unlefs when Sincerity may be pretended, /. e. when a favourable Conllruftion caa
be put upon it by the Rules of Equity, if we do not infift rigoroufly upon the Terms. But in an Aft of rigorous Right, where
we muft ftriftly obferve v.'hat is faid or written, the Fraud does not hinder the Contraft from being valid, altho' it may be
reverfed by a full Reftitution. For the Lnvs in this Cafe always allow the Benefit of Reftitution, which comes to the fame
thing as to the Damage of the Perfon cheated. But according to Natural Right, a Fraud does no lefs difannul a Contraft of
rigorous Right, than a faithful Contraft. Mr. Tit'tus
(
m Lautcrb. Obferv.
1 148,
&c. ) maintains alfo with Reafon, that this
Diftinftion of Afts of good Faith and rigorous Right is not conformable to Natural Right by the Principles which ought to
take place in all forts of Afts, which admit of an equitable Conftruftion, as Mr. Noodt acknowledges, De Forma emend. Dol.
nali. Sec. c. 4.
where he obfer\-es that before the Prxtor Caiui Jquilius Gallus there was no regard had to Contrafts of rigo-
rous Right, unlefs there were fome formal Agreements, and the Perfon cheated were a Minor. See /. ;.
c. 2. . 8. infra.
5 The Interpreters of the Roman Law have h,' 'herto affirm'd, that in this laft Cafe a Contraft is neither null by Right, nor
fubjeft to be made void by a full Reftitution, when it is tranfafted by a Contraft of good Faith, and has no other Source than
anAftion done in good Faith, befides the Exception of Deceit. But the famous Mr. Noodt, who has made admirable Difcove-
ries in the moft knotty Parts of the Civil Law, undertakes to prove in his Excellent Treatife De Forma emendandi Doli mati in
contrahendi! negotiis admijji apud Veteres, printed in
1 709,
That this Diftinftion of the modern Lawyers has no Foundation in
the Writings of the Antients, and that every Fraud, whether it confifts in the way of treating, or be found in the thing it-
fe'f, or the Price, renders the Contraft made in good Faith always null in itfelf, .and by the Civil Law, infomuch that the Perfon
cheated being fiimmoned by the other Contraftor to anfwer it, has no more to do but prove the Cheat on his part, without
oppofmg to him the Exception of a Fraud, and the Prsetor or Judge
muft declare the Contraft null by Right. But if he who is
d.uiiaged becomes the Plaintiff', he may either declare the Contraft entirely null by Right, or fufier it to be in force, if he judges
it convenient, faving to hinifelf in both Cafes to require a Reparation of the Damage which comes to him by the Cheat,
when the Defend.int ftiall demand a Ceftation of the Contraft. This laft Circumftance is remarkable, and I took the more
notice of it, becaufe it confirm'd the Notion I h.ad deliver'd in my Treatife of Sports, where I had faid
(
before .Mr. A'codl's
Treatife appcar'd ) following my own Reafon, /. 2. c. i. . 11. That there is this particular in all Contrafts made by Force
or Error, or, in a word, which are not perfeftly free on the Part of one of the Contraftors, that it is lawful for this laft to
make what Advantage he can of it, but the other hath no Right to eafe himfelf of the Damage done him contrary t j his Inten-
tion, is'e. Mr. Noodt hereupon quotes a Law of the Code, which imports, that after a Matter concluded, if he who has fome
way b^en guilty of a Cheat, requires a Nullity of the Contraft, fuch a Demand, which is fliameful, ought not to be granted
to its Author. TranfaUione
finita, quum ex partibus tuis magis dolum intercejfiffe,
quam eorum, contra quoj preces fundis, coit-
jitearis, inftaurari grave, necnon criminofum tibi
eft.
Lib. 2. tit. 6. leg. 30.
6 Altho', adds our Author in his Abridgment of the Duties of a Man and Citizen, /.I. c. 9. . 13. the other Contraftor
has direftly led us into that Thought till the Bargain was concluded.
Mr. B A R B E Y R .A c'5 NO TE S on . IX.
'
PUutus has given us a good Charafter of thefe fort of Men in the Perfon of a Seller of Slaves, who demanding if he had
not promifed to pay the Money for which he had fold a Boy, in cafe any one would warrant him to be free, anfwers, as in the
Latin Quotation at (**) in the Text.
^
Our Author leaves us here to guefs at his Meaning about the Validity of an Agreement, which notwithftanding the Know-
ledge of the illDefign of the other Contraftor, we have eng.igcd ourfelves in with him for fomething; but he explains himfelf in
his Abridgment of the Duty of a Man and Citizen, /. i . c. 9. . 14. where he lays down this Rule, He that trufts to the Promifes
or Agreements of a Perfon who makes no Scruple of violating his Faith, and breaking his moft facred Eng.igemcnts, aft.'! with 1
great deal of Imprudence, but that is not a Reafon fufficient to render the Engagement null and of no EiFeft. The Reafon is
plain, he ought to have taken care not to engage, and if he be deceived 'tis his own Fault, he can blame none but himfelf.
=
Vid. Diodor. Sic. 1. 2. c. 28.
4.
better.
27^
Chap^
VL making
Promifes and Vacis.
better.
The publick Bankers of Greece (fliys he)
number of Mortals be branded
as Pcrfons unfit to
if yoil lend them only a fingle Talenc with ten
deal with
;
and in
general, all
Faith and Ti-ull be
Bonds, as many Seals, and twice as many Wit;nef-
banifli'd from amongll
thole who are not fubjeft to
fo,
yet will never be prevail'd upon to be honeft,
a common Ruler or
Judge. For fince
we cannot be
But whether this Fear or Sufpicion of being deceiv-
mtallibly certain of any Man's Honefty,
and iince
ed, can render invalid a Pail already made, and can
the World is for the moll part inclin'd to
Wicked-
ablblve the fufpefting Party from a necellity of
"efs
j
and hirther, fince in a State of Nature every
Performance, will appear when we Ihall have con-
Man orders his Bufinefs according
to his own Opi
fider'd the Opinion of Mr. i^e^^i?/, on this Point.
""" ^ -
'^
'
r.,
.^
,-.,. .
He then lays it down for a Rule, that a Covenant
ivberein neither
of
the Parties
perform prefently^ but
truft
one another^ in a State
of
Nature^becomes 'uoid^
if
on either
fide
there arij'e a
jufl Fear
^.
Which
Alfertion we cannot admit of, but under thisCon-
ftruftion ;
that one Party after the Covenant is
made hiis juil Reafon to fear, that when he has
-^.-.-..^.^ c^v x^^i ui
>jju,Liicjivcgarutoraitn
pcrform'd the Engagement on his fide, the other
^"d Truft, and the Force of ibund Reafon, ihall
Pcrfon will fly off. And by a juft Redbn to feai",
^I'l-ve fo little Influence on their Minds. Whereas,
we mean fuch as is grounded on plain Indications
on the contrajy there feems to be Itampt on the
and Proofs. For it is highly injurious to queftion
Souls of all Men, in indelible
Characters, a julc
a Man's Fidelity without good Evidence, when
Senfc of the Duty ofkeeping their F;V/j facred and
we have experienc'd it in former Inftances. And
inviolable
>
an Argument for which Truth we may
indeed Mr. Hohbes hinilelf by a fubjoyn'd Notc^
draw from thiseaiy and natural Refleftion,
That
nion, and is
Judge
of
the
Jujinefs
of
his own Fears,
it will follow, that a Sulpicion,
though
vain and
groundlefs, fliall render a Contracb invalid
> and
therefore that Patts aie of no manner of ufe, except
under civil Governments. And it is an exceeding
h.ud Cenfurcjto think the greateft pare of Men io
grofly vile and wicked, as that (fctting afide the
civil Power) the Fear of
God,theRegardtoFaith
brings his Words to this qualified Scnfe
; Unlefs,
fays he, there arife fame new
Caufe
of
Fear from
fame
FaM^ or other
fign of
the M^itt, in one Party,
tending to Non-psrformance, the Fear cannot be c-
fleem'djuft.
For that inhicb couU not hinder a Man
from promifing, ought not to be admitted as an Hin-
drance
of
performing. That is, tho' before the en-
tring into the Covemnt, one of the Parties might
entertain fome Sufpicion, that the other would
impofe upon him
j
yet by the very Ad: of cove-
nanting with fuch a Perfon, he as it were renoun-
ces this Fear, and declares it infufficient to hinder
his believing and tmfling him. And otherwife,
no Engagement could pais between them. But at
firft this i'eems to have been Hobbcs\
Judgment,
that a Pact thus made would be void, tho' there
fnould no fuch Fear arife after the Conclufion of it,
as appears both from hisWorkofa Body Po!itick\
written in the French Tongue, where we do not
meet with this Reftriftionj and from the reafon af-
figned by him in theL^//Treatifc, for that Rule
we can find no Man who will openly profefs Per-
fidioufnefs,h-dt every one who recedes from hisWord
or Bargain, pretends to have
done it on very juit
and weighty Reafons. A Commonwealth
which
breaks its Faith with one of its neighbouring
States,
immediately engages its Faith again, to procure
the Alhance and Confederacy of another
> and thus
endeavours to avert the Danger it lay under from
that B.afenefs and Treachery, by the Help of the
fame Duty which before it violated. We ouoht
therefore to prcfume, that every Manwill do what
is jull and honefl:, till his contrary
Praftice forces
us
to change our ^pinion. To diftruft every
Bo-
dy,
{aysLucianyisa. moit ridiculous Folly
-.
From
all which we may venture to conclude. That this
difirufi of
Mens Faith
arifingfrom the general Pra-
vity
of
human Nature, is not fufficient tojuliify the
Non-performance
of
Contrails
'.
And therefore the
Excufe oi xhz Mitylenians for dcferting the Confe-
deracy of the ^//j'ra/^w, was vain and groundIcfs,
as it is gi\'en by their Ambafladors in fhucydides.
of his at prefent under our Examination. And the B. iii. c. i z. Edit. Oxon. Pag. i
f
4. When they had
reafon he gives for it is this,
Becaufe he that per- War, they
for Fear courted us; and when they had
forms
firft,
betrays
himfclf to the covetous
Defigns
of
Peace, we
for Fear courted than. 'Thus our Faith on
the other Party, upon account
of
the ill
Difipofition
ofi
both
fiides was not
p-eferv^d as is
ufiual
by mutual
mofi
Men, inciting them to
ftudy
and advance their good Will-, but by -mutual
Diftruft ;
and they who
own Litere
ft
by Right or Wrong. But it is
againft could be
firft
encouraged by Security were likely to be
Reafon, that one
fimdd perform nozv,
whilft it isim- the
firft
that
fiwuld
break the Union.
frobahlethattheotherwiUpeiformhereafter.Whtncc
Nay, fhould we difcover fome particular Vices
it is plain
'',
That he derives the Caufe of this Suf- in a Perfon, this is not always a good Reafnn tbr
picion and Difiidence from the general Pravity of us to recede from an Engagement made wit'.-' 'um'^.
Mankind. And by this Means mull the greatcft For there are many Vices which have no ill influ-
3 This is a Miftake of our Author, for 'tis only a Tranflation into French, as Mr. Barbeyrac obferves.
^*
The Author here cites a PafTige from Luciaifs Dialogue of the Liar or Incredulous, Xih'i'ia. TzciHt, %tin J
'li<i/, a^ncuy
antri. Thefe are the Words of a Man very incredulous in Matters of Magick, who reproved another that did not belie\'e his
Relations concerning it
;
but if our Author had minded the Conneaion of the Difcourfe, he would have found that he had mif-
apply'd thefe Words
;
to which the judicious Maxim of the Philofopher Se/iera had been more pertinent, ljtrum'?ue enim 'jitium
eft,
i^ omnibus credere,
is" nulli
ifed altcrum
boneftlus dixerim z'itium, alterum tutius, (i. e.) We mull neither tri'.lt all the World,
nor diftruft them, both of thefe Thi/igs are faulty ; but the firft in tny Opinion is moft honeft, and the other moft fafe,
tfift. 3.
See
Hcfiodm his Book De Oper. iff Diebus, ver.
372. And as to the following Ma.ximof our Auth^T, fee 1. 8. c.
4. V 3- following.
1
he Greek is,
Kai oJ
p: VfJM.'ihijm Tmhiyti AJioTK l^iigi/.TTiVo;; iijUHf
3 ly.iivvf It t huii-^i. -n ci.uTi SOT/sf/ji'.
alXoif (M?^ija 'ivi'oia. mpi/ SiCaiol, r'utf TtTii T'aC@- k^fov -nufti^, Ji'a ts vc zjAtci' !i if/Alst y^T5>0 <.iy/o'> n'uua^i ii'f
Mr. Herttr/s
here quotes to this Purpofe certain Words o( Terence, which he makes a Buyer of Slaves to fpeak, Lem
fum,
J^lior, ferntnes communis
ado/efcentium, ferjurus,
peftis ; tamen tibi a me nulla
eft
orta injuria, (i. c.) I own, I am a Buyer of
blaves the Rum of young Men, a perjured Pcrlbn, a common Plague ; but for all this I have done no Injury. Adelph. Aft. 2.
Scene i. v.
34, 35.
^
n -nii
De Ci-. 2. f.
ttrme is thus delivered
: If a Covenant be m.ide, is'c
.'^nd much more plain from his cYprefs Words in the Engliih Leviathan, where the fame Do-
,63
ence
2^6
Of
tie Conjent required in
Book
HI.
cnce on the Duty of keeping Faith. Thus fuppofe
a M;in to be inclin'd to Lull,
Drunkenneis,or
Cruel-
ty, thole ill Habits, conlider'd barely in themfclves,
do not hinder but that he maybe a Ib-itt
ObfeiTer
oF his Word, and a conilan:
Performer of his Co-
venants. And firther ftill, lliould we find a Per-
fon addiftedto fuch Vices as do commonly
preju-
dice Fidelity and Trull >
as if we obferve in him a
defultory Lightnefs and Inconftancy
of Mind, an
inlatiable Defire of Riches, or a violent
Strain of
Ambition
>
yet even thefe
Qualities do not give us
an abfolute Liberty of refufing to make good our
Word, when we have pafs'd it on his Account. For
in the firll place, it may often
happen that a Man
out of a particular
Inclination may praftife Dilho-
nelly towards others^ and yet may live fairly and
julUy with me. And then (as has been lately ob-
ierv'd) by my very Aft of bargaining with a Per-
Ibn whofeDifpofition I am acquainted with, I de-
clare thofe Vices which I know him guilty of, to
beinfufficient to hinder me from trailing him, and
lb renounce all my Privilege of making
Exception
againft his prefent Morals, after the
Bufinefs is
concluded between us. For otherwife
nothing
would have been firmly tranfafted,
fuppofingone
Party at firft to have made fuch a Referve as
fiiould, when he pleas'd, overthrow the whole Pro-
ceedings ^ Though indeed when I have been once
decciv'dby a Man, I Ihall atvery
imprudently, if
I
engage in any
Contraft with him again,
without
requiring
particular Security. And the very Pro-
verb will tell me, That if fuch a Knave cheats me
once, 'tis his Fault, but if he cheats me a fecond
time, 'tis my own
.
Jdd. Senec. de Benef. 1. iv. c. 2.7.
Cic. de Invent, l.i. c.
39.
Or even after theP^S is
concluded j
fuppqfe 1 find by evident
Tokens,
that he is contriving to play me a Trick, I Ihall
be an egregious Fool, if I betray my felf volun-
tarily
to his Defigns. Cicero de Invent. 1. i. c.
39.
It's
the higheft Pitch of Madnefs to rely on their
Fidelity,
whofe
Perfidioufnefs you have often ex-
perienc'd.
Hence Mcnelaus cries out in Homer.
1. iii. Iliad, v. lOf,
106.
''A^ili
<^'
Ueiiutio /Sjhc,
o^f' ofKia. -rlfivf
Bring
Priam's felf to fee the Contract made,
For
Priam's Sons are faithlcfs and unftaid.
Jdd.Polyb.X.vm.c.
i,2.1.x.c. -^4^. Cicero in Ferr.
i. I
f
. He who hath proved falfe to his own Party
is the common Enemy of Mankind. No wife Man
ever truftcd a Traytor. Idempro Rahir.
1
3. When a
Man hath been once perjur'd, he ought to be no
more believ'd, though he fwear by all Heaven to-
gether, jidd. Senec. dc Benef. 1. iv. c. 17.
Thus much we willingly allow, that in cafe a
Man openly difclaims all Religion, or if he enter-
tain fuch Opinions as amount to the fime, weought
to place no farther Trull in his Pafts or Promiles,
than as either his manifell Advantage and Interelt
obhges him to Hand to them ; or as we can by Force
reduce him, if he fly off. Such Perfons are thofe pro-
fefs'd Atheiils
',
who either deny the ^r/^, or the
Providence o^GoA-., and nearly related to them, are
the Maintainers of the Mortality and Impunity of
human Souls. For 'tis impoHible, but that Men of
thefe Principles fhould meafiire all Right and all
Jullice by their own Profit and Convenience. Into
the fame Herd we may pack all thofe who pratife
fome Villany or Vice for their fet Trade and Em-
ployment >
as Pirates ', Thieves, Murthercrs,
Pimps, Courtefans, and other profligate Wretches,
who take Perjury for a Trifle, and make a Jell of
facred Obligations. Thus 1'acitus fpeaks upon the
Occafion of one Gannafcus.^ who having ferved
the Romans a long time, run over to the Germans.
Nee irrita autdegeneresinfidia fuere adverfus tranf-
fugam^
violatorem fidei., i. e. {Jnn.xi.c. 19.) The
Treacheiy ceas'd to be dillionourable by being
praftis'd againll a perjur'd Renegado
".
And this we are farther ready to acknowledge,
that although the Argument of Mr.//o^^f/, which
we have here endeavour'd to refute, does not per-
form the Service he intends it for
j
that is, does not
take off the Validity of PaSls in a natural State
j
yet
is in fome meafure capable of good ufe,in as much
as wemay draw from it the following Rules ofPru-
dence
y
Never to depend much on a Covenant, but
when weknow that the Interell of the other Party
is concern'd in the Performance of it, as well as
our own
j
and that upon Default he is likely to
fuffer fome greater Evil or Inconvenience, than he
can incur by Handing to the Agreement.
That he whoenters into a Contract with his Su-
perior fliould fo order Matters, as that his Superior
Ihall be oblig'd to be the firft Performer. For if
the weakerPerfondifcharge his Part firft, the Effeft
will probably be, either that he fhall be difappoint-
7
There is a Paflage in Cicero very pertinent to this Purpofe, l^am illud qtiidem, Neque dedi, neque dofidem infideli cuiquam,
Idcirco rede a poeta, quia cum tra8aretur Atraus, ferfona ferviendumfuit ifedjl hoc ftbi fumunt, nullam
ejfefidem, quis infideli
data
fit,
vidfant tie qu^ratur latebra perjurio, (i. e.) When the Poet makes Atr/rus Uy, I never have, nor do believe a faithlefs
Perfon, he had reafon to make that wicked King fay fo, to make up his Charafter. But if we lay down this as a general Rule,
That Credit given to a faithlcfs Man is void, I fear under that pretence an Excufe will be found for Infidelity and Perjury. De
Ofiic.
1. 3. c. 29.
*
Cicero % Latin is, Frimo qiiidem decipi incommodum
eft,
iterumftultum, tertio turpe fumma igitur amentia
eft,
in eorumfiie
fpem
habere, quorum perfidia toties deceptus
fits.
De Invent. 1. i. c.
39.
See alfo Homer i Ilias, I. 3. v. 105. Cicero, 1. \.in
Ferrtm, c. 15.
Sen. De Benefi. 1. 4. c. 27. Polyb. 1. 8. c. I, 2. andl. 10. c.
34.
9 Mr. Vander Muelcn in his Commentary upon Grotiui, Tom. 2. will not agree to the Opinion of our Author. For he fays,
Experience
(hews, that thofe fort of Men have not fo altogether put off Humanity, but are ufually conformable to the Rules of
Honefty and good Senfc eftablilhed ^mong Men ; and if they do not aft with any fear of a Deity, yet they do it with the Pro-
fpeft of their own Advantage and Prefervation. So that though we know that a Man is infefted with that detelbbic Opinion, we
have no Right under that pretence to break our Word with him, and negleft to perform the Agreements made with him. We
were at our Liberty to agree with him, or not ; but from the Moment that we have conchided an Agreement with him, we are
necellarily obliged to perform it. It is a clear different thing when we deal with Traitors, Thieves, Pir.ites, i^c. Mr. Bayle has
alfo proved at l.irge in his Thoughts upon a Comet, and the Enlargement of that Work, that Atlieiils are not always wicked
and faithlcfs, and that they may through a Principle of Honour or other human Motives abllain from groffcr Vices.
'"
The Author here fpeaks only of that Circumfpeftion that we ought to ufe in treating fuch Men. For he denies not but
we are obliged to obferve what we have freely promifed. See what he fpeaks a little lower,
J.
11. in the place where he ex-
amines the Maxim of Cicero. De Ofiic. 1. 3. c. 29.
See alfo 1. 8. c. 4. |. 5.
"
We may eafily difcern that this PafTage is not very pertinently alledged.
Chap.
VI. making Promifes and Pa&s,
277
ed and
deluded ;
or that he muft depend entirely ivhat it looks upon as good. Now it appears no lefs
on the
Favour and good Grace of the other, tor good and defirable to the Will, to avoid an im-
what
he expefts in return. minent Evil, than to acquire an abfent Benefit
j
^hxis Socmtes o{j^chaia replied to the Demands and towards the attaining of both thereEnds,wc
o^Kingjirtaxerxes; The King deals moll unrea- employ the moil likely Aleans, although they be
fonably
by usj what he defires to receive from fuch as we fhould not barely on their Account
us, he would have to be immediately deliver'd -,
but
what he is to give us in return, he expeftswe
fhould
afterwards humbly fue for. Diod. Sic. 1.
xiv. c. 24.
For the fame R.ea.{on, fadlior fides
/pe-
ratur ex pari, we may truft more fafely to the Faith
and
Honefty of an Equal, ^dntil. Declam. 312.
And laftly, That he expofes his Safety to mani-
fefl Danger, who by performing a Covenant wea-
kens himfelf, and ilrengthens the other Party;
upon hopes that in Requital, and according to the
Agreement, he fhall afterwards receive the like
Aflillance and Succour. For 'tis a piece of Folly
to give a real and fubflantial Good., in exchange
for Words, Writings, or Seals, when we have
nothing to oppofe to the Charms of Ambition
and Covetoufncfs, but the ill-grounded hopes of
Honeily and Fidelity
'-.
Maurocen.
Hift.
Vcnet. 1. v.
p. 193.
Ed. Fen. I
dare not venture to place the Security of our Af-
fairs in a League. For iuch is the Nature of
Confederacies, that they are frequently hindred
and interrupted by the various Events ofThings
;
different Ends propos'd draw the Strength and
Minds of the Allies different ways ; and whilil
each State purfues its own private Intereft, the
common Good is difregarded or betray'd . Rein-
forcements and Supplies are neither fent in equal
Proportion, nor at the time agreed upon
>
hence
arife Sufpicions, and Eflrangement of Affections,
from this open Qiiarrels, and from Quarrels ut-
ter Defertions, and Violations of the main Con-
traft ; and thus at length, thofe of the Confederates
who are leaft able to make Reflftance, become a
Prey not only to their Enemies, but to their Allies.
X. Weare now to proceed to that other Species
of Fear.y arifing from the Approach or the Appre-
henfion of fomc grievous Mifchief And in Hating
this Point it is neceffary, that we go back to fur-
nifh our felves with fome clear and fundamental
Principles. And fuch is this undoubted and ori-
ginal Truth, That our Will naturally inclines to
choofe or embrace. For we commonly
ufe of Methods in themfelves ungrateful and trou-
blefome for the efcaping of a Danger, as for the
acquiring of a Pleafure
'.
Though indeed, the
Hopes of comparing a Good does more fweetcn
the Grievoufnefs of thefe Means or Methods,
than the Care of preventing an Evil. For which
Reafon
Ariftotle
"
calls thofe only mixt (that is,
partly voluntary, partly involuntary) Aftions
-,
which are undertaken for the fake of declining
Ibme Mifchief which we are like to fuffer; as ia
that trite Inftance, of throwing Goods over-board
in a Storm. Though as great Hardfhips as any
of this kind are undergone by the Wieltlers, and
other Engagers in the publick Games, to prepare
their Body for thofe Exercifes''. What we would
obferve then is this. That although Aftions pci-
form'd upon I'^ear of a greater Evil, ought to be
accounted fpontaneous, and tho' the leffcr Evil,
which in thofe Cafes we choofe, is, as Things
then ftand, the real Objeft of our Dcfire
;
yet all
this is not fufficient to found an Obligation in us
towards another. For fince every Obligation is
direfted towards fome other Party, to whom it is
to be made good, and who thereby obtains acorre-
fpondent Right of compeUing us to Performance;
to produce fuch an Engagement, 'tis not enough
that one Perfon has in him the due Grounds or
Principles of an Obligation, but it isrequifite, that
there be in fome other Perfons Principles fit to
create a Right. For we can have no Notion of
an Obligation, unlefs a Right airfwer to it, or be
confequent upon it : As I can owe nothing, if
there be no Perlbn who can rightly demand any
thing from me. Therefore Iuch Fear alone inva-
lidates and detlroys an Obligation, as is caus'd by
fome Fice or Imperfeftion in the other Party,
rendering him incapable of acquiring a Right
'.
And fuch a Defeft is every injurious Aftion>
which cannot be fiid to produce a Right with-
out a manifefl Contradiclion
'*.
For to pay what
"
This Quotation is not very neceflary, becaufe that Hiftorian there treats in general of the Inconveniences which arife
by Alliances of one State with another.
Mr. Barbeyrac'^ NOTES on . X.
'
As for Example, Theantient Wreftlers, as our Author obferves a little lower, underwent chearfully the Regimen of a very
auRere Life, and great Fatigues, that they might win the Crown of the Olympick Games. See EpiBet. Enchirid. c.
35.
in
fine.
What our Author fays here is not contrary to the Maxim which we have defended above after him, 1. i . c. 6.
14. For tho'
in general Man is more fenfible of Evil than Good, that hinders not, but that fometimes he may refolve to do fome things
difagreeable in themfelves upon fome Occafions, to obtain a Good which he looks upon as much more conflderable, or to avoid
an Evil more troublefome. And then the Hope of Good makes us think the Means lefs troublefome, than the Defire of avoid-
ing the Evil does, as well becaufe we embrace thefe Means with an entire Liberty in the firft Cafe, and not in the latter, as be-
caufe the Acquirement of Good is fomething pofitive, which produces a new Pleafure and Advant.ige, ivhereas a Deliverance
from Evil leaves us in the fame Eftate we were.
*
See 1. I . c. 4.
9. before going.
' Nihil
covfenfui tarn contrarium
eft,
qui ac bornefidei judiciafuftinet, quam vis atque metu!, quern comprobare contra boms moref
eft.
Digeft. 1. 50. tit. 18. De Diverfis Reg. Jur.
leg. 116. See tit. 2. 1. 4. ^oi nidus caufa geftum
erit, and Mr. Baumat'i
Civil Laws in their natural Order, Part i . 1. i . tit 1 8.
2. We may add alfo what Cicero fays. Jam
illis fromiftis ftandum
non
ejfe, quit non videt, qure coaRus quis metu, qua deceptus dolo promifcrit ? ^le qiiidem fleraquc Jure
Pnetorio liberantur, non-
nulla Legibus. DeOffic. 1. i. c. 10. [i. e.) As for Promifes extorted by Fear or Fraud, who fees not that we are not obliged
to keep them ? The Prastor himfelf frees us from many of them, and the Laws from fome others.
"
Solon (as Plutarch re-
"
lates) by allowing Men who had no Children to give all they had by Will to whom they pleafed, yet did not thereby ap-
"
prove of all forts of Donations indifferently, but of thofe only that were given freely without any \nolence, and without a
"
Mind corrupted with the Potions, or Fawnings of a Woman,'beingjuftlyperfuaded that there is no diiference between Se-
ducement and Force ; and placing in the fame Rank, Surprize and Force, Pleafure and Pain, as the things which equally
cloud our Reafon.
E;? wai/w )^ sn^icmwi'-raf -m rcHSthZax
-^^ li H'i^v^if, iSiv I'lyi/j^Q- th
0ia.9htiiU Jutfifnv, <tM' di
tdvti T (imrhu t? Ai-ctfjcii, zj -r&) Tciva
j
fi^vhjj
3t>V-. V ix "^"C lv-^n^<u MyisiMV
iv^^u-Ttt S'luitt/^uy.
* See the Law of the
Digefts, eked
'.
8. Note
4.
Ethic. 1, 3, c. I
. See what we h^ve faid of thefe in 1. i . c. 4. i.
9,
Oo
b
Vid. Epiaet. Enchir. c
35.
another
Q
7
8 Of
tie Confent required in Book III/
another hns tl Right to demand, is a Precept of the ther Quarter
='.
Thus, if I hire a Guard
of
Sol-
Laiv of
Nature; and fhould an Injury {that is, a diers to defend me againft Robbers, I am no
doubt
Deed or Fal direftly contrary to" that Law) be obhg'd ftriftly to pay them the Price of
their
Ser-
ablc to cauie any fuch Effecb, the Law
of
Nature vice. And a Man who being reduc'd
to a low
would lend Strength and Afliilancc to its Enemy, Condition, procures by large Promifes
the
Help
and manifcftly contribute to its own Deftmftion. of others, and having by their. Means efcap'd
the
We may as well fay, that a Law which forbids Danger, is afterwai'ds backward in
performing
Thieves, may at the fime time reckon their Trade contra6ts the double Guilt of
Perfidioufnels,
and
and Prafticc'amongft
the honeft ways of Gain', of Ingratitude.
XL But, before we apply thcfe Remarks more
cloiely to the Point, it is neceflary that we make A Promife is likewife valid, if made to a third
farther Enquiiy,
whether the Author of the Fear Perfon, through our Awe and Dread of a lawful
was the Party with whom we are engaged in Bu- Superior
"'
j
who had a juft Right of
commanding
finefs, or fome other Perfon. And then again, us, and ofdenouncing a Penalty upon
Default.
For
whether he had a juft Power and Authority of here the Party to whom I make the Engagement
is
prefcnting
fuch a Fear to our Mind, or not. For in no Fault
;
and I can only blame myfelf for being
this is true beyond Difpute, that in cafe I have driven to a thing through Fear of Punifhment,
taken an OW/^T//o upon me through Fear of Mif- which I ought -/oluntanly to ha'.x^
undertaken,
chief, thrcatned by a third Perfon^ neither at the Thus fhould a King lend a Body of his boldiers
Inftigation, nor with the Confederacy of the Par- for Guards to a foreign Prince, and for the great-
ty to whom the Engagement was made', I ftand er Security, command them to fwcar Obedience
to
fivrnly bound to perform what I promis'd him. the Stranger > they Ihall not afterwards fly from
For there appears no Fault in him, which might their new Obligation, upon pretence that they were
render liim incapable of acquiring a Right upon brought to it by Fear; fmce the Fear proceeded
me ; and on the contrary, he mayjuftly challenge from him, who had a fovereign Right of laying
a Requital, in that lie lent me his Affiftance, in this Injunftion on them, and of forcing thern by
warding off the Danger I apprehended from ano- any Methods to their Duty. In the fame manner,
5
To clear this Matter, it is necefTary to make fome Refleiflion;. i . The Reafon which our Author alledges, taken from
the Incapacity made hy the Caufe of Fear, to acquire any Right from the other Contraflor, is very good, but there is another
dr.iwn from the Perfon in whom the Fear is. That his Confent is not fo free as is required in all Promifes and Agreements,
which ought to be perfeftly voluntary. 'Tis not here as it is in Aftions criminal and evil in themfelves, which ought not
to be committed for fear of the greatcft Menaces, though the Fear yielded to may leflen the Crime. Becaufe as we oupht and
n\av obey the Law that forbids them, we are thought to be free fo far as is neceffiiry to make us culpable, though we have no-
thing in view but the Trouble which we are immediately threatned with. But in tlie Matters of Promifes and Agreements,
all that is not done without Artifice and Conftraint from him with whom we engage, is looked upon with Reafon not to
have a good ground of Confent, and confequently is void in itfelf, becaufe we .aft about things indifferent, which we need
not determine farther than we fee convenient. The Law that leaves us at liberty to do them or not, lays no Neceffity upon us
to keep what we are engaged to contrary to our Will and Intereft. Reafon and Prudence will oblige us rather to depart from
our Rights, than expofe our felves to the ill EiFeft of Force ; but if there be no Damage to us, nothing can oblige us to make
good an Aft which is null in itfelf, unlefs we fear a worfe Confequence than appears in doing it. XJr. Daumat, who has ufed
(in his Civil Laws reduc'd to a natural Order, Part i . Lib. i . tit. 1 8.
\ 2.) this Reafon to fliew the Nullity of forced Engage-
ments, but explains them obfcurely, has not forgot the other Reafon taken from him who is conftrained to promife or treat.
2. Our Author feems to think that the Evil, which being apprehended, is fufficient to make forced Promifes and Agreements
void, ought to be very terrible, whofe Profpeft may affright the mod courageous Perfons. 'Tis certainly the Opinion of the
Roman Lawyers, who confine this Fear to the Danger of lofing Life, or fuffering fome violent bodily Pain. Metiim accipien-
dtim Labeo li'uit, nm qticmlibet timorem, fed
majoris malitatis qui merito (^ in hominem conftantijfimum cadat. Digeil. 1. 4.,
tit. 2. leg.
5,
6. Talem metum probari oportet, qui falutis periculum, vcl corporis cruciatum contincat. Cod. 1. 2. tit.
4. De Tranf-
aflionibus, leg.
M.
But fuppofmg always, that the Fear is unjull, I do not fee why the Apprehenfion of a fmail Evil is not
fufficient to make Promifes and Agreements void, if that be the principal Motive, and without it Confent had not been given.
The lead Injuftice, in my Opinion, gives no more Right to the Author of it than the greateft. But the Fear muft not be a
rain one, for he that refigns himfclf up to panick Fears, muft blame himfclf Vani timoris
jufta
excufatio non ejl, Digeft. I.
50.
tit. 17. De Diverfis Reg. Jur. Leg. i 84. Otherwife, as Mr. Daumat obferves, all the World would not have the fame Refo-
lution to refill Force and Menaces. There are fome Men fo very weak and timorous, that they yield to the lead Jmpreffions
;
fo that the Icjft Force prevails as much on them, as the greateft on the moft courageous, and 'tis principally for their fake that
the Laws punifli Matters of Fadt and OpprelTions. But if the fame Laws do not allow the Fear of a fmall Evil to be ranked
among the Caufes of nulling a Contraft, it proceeds from hence, according to the judicious Rcfleftion of Mr. Placette in his
Treatifc of Rellitution, that the Lawgivers would prevent the Multiplication of Suits, which are without Contradiftion .t great
Evil; but they have left, adds he, the Rights of Confcience entire, and their Authority hinders not but that we may obfcrve
exaftly what that inward Law prefcribcs upon that and the like Subjefls. We muft then conclude, that by natural Right all
Force, and every kind of Violence, direft or indircft, all Menaces, and in general all unlawful Influences which oblige Men,
contrary to their Inclination, to give their Confent, which otherwife they would not, takes away that Liberty which is ne-
cefTary 0 make an Engagement valid, and confequently renders all Promifes and Agreements in fuch Cafes null and void. I
Ihall farther add only one Paffage in Plato, wherein that Philofopher afferts, Th.it the Agreements to which a Man is obliged
tbi.uv *7tAj iixoheyiat c* t (p'JKiVKcuji /inout, is'e. De Legibus, \. 11. Tom. 2.
Mr. B A R B E Y R A c'j iVO r
6"
on . XI.
Whether the Evil be at a dift.ance and uncertain, or it be .according to all Appear.ance juft ready to happen. In the firll
Cafe it is plain, that Fear from a third Perfon can't invalidate a Promife or Agreement. In the other, though the Fear be pre-
fcnt, it has no manner of Influence upon the Nature of a Promife or Agreement. All that is done is, tlut it gives the Perfon
engaged a Right to accufe the third Perfon, by whofe unjuft Force he made the Engagement, and without which he had made
no'Contraft. Titius's Ob/erv. 224.
*
Si quo magii te de vi hojliiim vellatronum, vel populi tuerer, vet liberarem, aliquid a te accepero, vel te obligavero ; non debere
me hoc cdido tencri, nifi Ipj'e banc tibi vim
J'ummifi. Cteterumft alienui j'um ^ vi, teneri !ne non debere ; ego enim opera potius
me/e mercedem accepijfe vfdeor. Digeft. 1. 4. tit. 2. leg.
9. ^
i.
'
Non earn vim quam Magijlratus intuUt, fcilicetjure licito, i^ jure honoris, quern
fuflinet
. Ibid. leg. 3.5'- This Author in
his Abridgment of the Duties of a Man and Citizen, 1. i . c. 9. 1
5. adds.With Refpeft or Deference to a Perfon to whom we
have great Obligations. And 'tis for this Reafon that he reports an E.xample of a Child who married againft his own Inclina-
tion to p'.eafe his Father, although he could have abfoluiely freed himfclf. See 1. 6. c. 2.
J
1
4. following.
4 fllOUld
Chap.
VI.
making ^romtfes and Pa&Si
m
fhoultl we
fuppofe that a Father might betroth
his
Daughter
to a Man, quite againll her Incli-
nation }
and in this Cafe^ when ihe, out of fear
of her
Father's Authority, has given her Faith to
the
lefs agreeable Spoufe, fhe cannot afterwards
diiappoint
him. For there is no Fault in him, to
prejudice his Right^ accruing from that Promife\
and the
Daughter ought freely to have obeyed
her Father's
Pleafure
i
and fo cannot plead 6'o2-
pidfton^
when llie has no Right to refill. Thus
far then it is a Point of Moment to confiderwho
was the
Author of the Fear. But in other Ca-
fes, the Rule of the Roman Lawyers holds good.
That it }7iakes no difference from what Perfon the
Fear proceeds ; that is, when one has a Right of
putting us into fuch a Fear
;
and when the Fear
is
actually the Caiife^ not the bare Occafwn only
of the Promife^ or Pai, confequent upon it
.
Thofe Prow;//?i then, or Pals, we take to be in-
valid, which a Man is compell'd to engage in by the
unjuft Force of the Party to whom they are made.
For fincc he who extorts any thing from another,
byufing unjull Terrors, is by the Law of Nature
bound to rellore it
>
and muil confequently make
good what the other Perfon lofes by fuch a forced
Bargain. So
'
Seneca I. iv. Controv. 16. The Que-
iHon is, whether Force and Ncceflity render a
Bufinefs invalid, when they did not proceed from
the Party contrafting ? What Influence (will he
fay) "can your Compulfion have on me, when it
"
was not I that compell'd you? ThePunifhment
"
cannot be mine, unlefs the Fault were mine.
*'
But the other denies this way of arguing. The
*'
Law, fxys he, as to the prefent Caie, doth not
"
profecute him that offers the Violence, but af-
"
fills and relieves him that fuffcrs it j
it feeming
"
unreafonable, That a Man fhould be bound by
*'
an Engagement thruft upon him againfl his
"
Will. Whence the Necellity proceeded, is a
*'
Point of no weight in the Difpute. That which
"
renders the Contraft unjuft, is the hard Fortune
"
of the Sufferer, not the Perfon of the Doey./dem
Controv. 1. iv. c. 8. If it be faid it was not I that
applied the Force, but another
j
the Anfwer is.
That Man who makes his Advantage by Violence,
offer'd by fome other hand, is no lefs guilty, than
if he had been himfelf the a6tual Performer.
The Neccffity o Reparation in the Party who
offer'd the Violence, takes off all Obhgation to
Payment in the Party
who fuffer'd it; becaufe
fhould he offer to do *,
or to give what in the
Agreement he promis'd, he ought in common
Juitice immediately to receive full
RecompcncCj
or full Reftitution \ And 'twould be a foolilh
and idle way of afting, when we are once got
clear of the Danger, to pay voluntarily
what we
promis'd ttpon Force, and then to require
Repara-
tion of the Damage
^.
Martial. L.Xl.Epig.
j-p.
^id
fi
me tonfor cumftriSia mvacula
fupra
eft.
Tunc libertatem divitiafq; roget ?
Promittam : Nee enim rogat illo tempore tonfor,
Latro rogat
j
res
eft
imperiofa timor.
Sedfuerit curva cum tuta mvacula theca,
Frangam
tonfori crura manufq; ftmul.
My Barber with his Razor on my Throat,
Asks me forWealth and Freedom, and what not:
I promife all, whilft Danger ties my Hands,
For not the Barber, but the Rogue demands
;
But when fierce Razor tofafe Sheath withdrew,
I'd fpoil his Dancing and his Fiddling too.
Efpecially fince the other Party, when he demands
or accepts our Promife, does by that very Aft de-
clare manifeftly, that 'tis far from his Thoughts
and Defigns to make us any Satisfaftion. Befides,
how ridiculous would it be in you to reckon it a
piece of Merit, when you forbear a Mifchiefwhich
the Laws forbid you to commit, to pretend that
you do a Man ^Kindnefs, by refraining froinfome
notorious Villany? And therefore Cicero
*
ut-
terly denies himfelf to have been obliged to yf-
tony, for not killing him at Brudufium. H^at
Benefit, what Favour is it (fays he) that you with-
held your Hands from the
fouleflWickednefs? IVhat
Kindnefs can Thieves
boaft of,
but that they [pared
a Man's Life, when it was in their Power to have
murder'd him ?
Horat.X. I. Epift. \6.
Non
fur
turn feci, nee
fugi, ft
mihi dicat
Scrvus, habcs pretium loris, non ureris aio.
Non hominem occidi ; non pafaes in cruce Corijos.
9
Id. de Arte P.
-vitavi denique culpam,
Non laudem merui.
* In hac aSllone non qu^ritur, utrum is qui convenitur, an alius metum fecit ; fufficit enim hoc docere, metumfibi illaium, vel
vim ; l^ ex hac re eum qui convenit r, etji crirnine caret, lucrum tamen
fenfijfe.
Nam cum metus habeat infe ignorantiam, merito
qui! non aftringitur, ut dejignet, quis ei metum, vel vim adhibuit, k^ idea ad hoc tantum Alor aftringitur, ut doceat metum in
taufa fuiffe,
ut alicui acceptam pecuniam faceret, vel rem traderet, vel quid aliudfaccret. Digeft. 1. 4. tit. 2. ^od metus
aufa, leg. 14. . 3.
5 The Latin oi Seneca is, Jn,Ji eji in re vis (sf necejjitas, ita tamen refcindantur, qure per vim ^ neceffttatem
gefta funt,
Ji
vis
y necejjitas a pacifcente adhibita ejl ? Nihil, inquit, med, an tu cogaris,
Ji
non a me cogeris, meam culpam oportet ejje, ut
mea pcenajit. Non inquit, neque enim Lex adhibenti vim irajcitur,
Jed pajfo Juccurrit, isf iniquum illi videtur, id raturn ejfe,
quod aliquis, non quia voluit pa^us ejl, Jed quia coaBus ejl. Nihil autem refert, per quern illi necejfe fuit. Iniquum enim, quod
rejcinditur, facitfortuna ejus, qui pajjus
cJi,
non perjona facientis. And again, Non mea, inquit, Jed aliena vis fuit ; aque dignus
eJi pcena, qui ipje vitri adhibet, is' qui ab alio admota ad lucrum Juum utitur. See alfo A'Ir. Noodt, De Jurijdi^. iff Imperio.
*
Tliere is no Neceffity here to have recourfe to this Fiftion of Law ; and our Author ought the more to have avoided it,
becaufe he condemns it himfelf, when he criticifes upon Grotius\ Opinion, at the end of . 1 2. in this Chapter. He had bet-
ter have infilled upon the Principle he laid down above, vix. The Incapacity that the Author of Force fhould obtain any
Right by fuch extorted Engagements, and the want of Liberty in the Perfon which gives iuch a forced Confent. See . 10,
Note
5. The Argument our Author ufes here, can only be ad hominem againft the Roman Lawyers, who having fearched
into the idle Fallacies of this Head, as they have done in other Matters, maintain. That the Contraits of Rigorous Right ex-
torted by an unjuft Fear, are valid in Equity, althtf" they ought afterwards to be difannulled by the Prastor. See Injiitut. 1.
4.
tit.
13. De Exceptionibus,
. i. xnAyir. Noodt^De Forma emcndandi doli mali, c. 16.
7 This is a Term of Law, by which is underftood a Difcharge which two Perfons Debtors to one another, give one ano-
^'^^IrS''^
"^^'^ "''
Author will treat in Lib.
s-
c. 1 1 . . 5. Vid. Digejl. 1.
44.
tit.
4. Dedoli malt i^ mettu Exceptions, leg. 8.
* This Note is put into the Text.
9 Horace \i there treating of another Matter, and fo the Quotation is not proper.
=>
Phili}. 2.
^ ^ '^
O o
2,
Spealc
2
8o
Oj ihe Confent required in Bo o k II
I
.
speak,
Slave, your Merits, I ne'er fled nor flole
j
"J
in cafe one of them make their Efcape, the
reft
You've
'fcaped the Scourge, and ftill your Hide I are obHged to pay the Price he was valued
at.
keeps whole: T Whether a.nOaib added toPromifes of this
kind,
I've
done no Murcherj and you feed no Fowl.
J
does more confirm and eltabhlh their Force,
we
fliall hereafter examine.
I merit Pardon, but I win no Praife. It is a noted Saying of7//)/ in his third Book
of
Offices,
c. zp.
".
IfyoK have agreed with
I'bieves
Add. 1. vii. f.
3.
). de paElh. Seneca, 1. ii. Con- to give them fiich a Sum to
fave your Life, it is no
frov.
1
3. Not to do aVillany will never pafs for Deceit to recede from your Promife, though you have
a Benefit, ^linilil. Declam.
3
30.
Tomake an end given your Oath too
for
the Performance. For Rob-
of an Injury is by no means to begin a Kindnefs. bers or Pirates are not in the number
of
any particu-
No more is n IVIan bound to perform his Pro- lar and lawful Enemies, but floould be look'd on as
mife, who in a Cafe of this Nature
', gives the Adverfaries
of
Mankindy and therefore no true
Security for the Perfon in Dillrefsj although his Faith or Oath can properly
pafs betzveenns andthem.
own Fear is not theCaufe of his entring into the Which Aflertion we thus far allow holds good,
En"-a"-ement. For fince Surctifhip is a kind of in- that a Promife made to fuch Men through the
fcriorContraft, admitted to confirm and ftrengtii- Compulfion of Fear ihall not be binding. But the
en the main Bufinefs
>
it would be abfurd (at lead reafon on which 7/^//y proceeds, is not fatisfaftoiy
with recard to natural Law) to attribute more Ef- to many Perfons> efpecially, if extended to llich
ficacy to the former than to the latter; to make PaEls or Promifcs as we commence with the fame
the principal Debtor lefs ftriftly obliged, than he Villains, without being brought to it by Vio-
Avho comes into the Bufincfs purely for his Afii- lence. For tho' by the common Cuflom of Na--
rtance ^ The Cafe is otherwife, if this third tions
''
a lawful Enemy and a Robber are treat-
Party, for the relief of the Sufferer, contraft an ed in a different Method, yet the latter cannot
Obligation, in which he himfelf is the Principal, be faid immediately to lofe all Rights of Huma-
not theSuret)^, or the AccefTary. For inftance, if nityj at leail, if he flill deal with fomePcribns in
a Man out of Kindnefs and Pity fhould promife a fair and peaceable manner. For when he tranf-
fome Reward to a Villain, upon Condition he aVs with me without influencing my Confent by
will fet a poor Wretch at Liberty, whom he has Fear, he bargains not as a Robber, but like anyo-
got under his Power
".
For here the Contra- ther Man. Now a Robber is call'd a ?k?o y/^-
clor himfelf is not properly put under Fear, nor verfary, becaufe he does not, like other Enemies,
can he ufcthofe Exceptions, which might be made offer War peculiarly to any Party, but praftifes
by the Perfon he delivers ; in as much as he enga- hollile Force upon all, without Diilinftion, that
ges upon his own Score, not in the Name of the firll into his Hands. Upon which account, m
other, and cannot be fiiid to build his Bargain on order to quell and to fupprefshim, there is no need
a primary Obligation ; fince indeed, none pafs'd, of the Formalities of denouncing War, and lifl-
but what he freely fet on foot, and of which he ing Soldiers againfl him ; but Nature commifli-
took the whole iSurthen on himfelf And he ons every Man to profecute him in a military way.
ought to eftccm it a thing well worth his Pains But it may flill be aiiirm'd, that as by7//y's own
or Coff, to have faved the Life of an innocent Confeflion, a State of Hoifility does not hinder
Man, and to have acquired the Gloiy of Benefi- us from being bound to obferve Faith with an
cence in fo extraordinary a Degree. Enemy ; fo neither is this common
Hoftility of the
But if a Pcifon in this captive Condition, upon Robber an Hindrance to our performing a Co-
making Terms for his Liberty fhall leave Hoftages venant made with him; efpecially if, as we have
to continue under the Power of the Villains, till all along fuppos'd, he lays afide the Part of an
fuch time as he fhall have perform'd what he pro- Enemy in the Al of Covenanting,
mifed; he is then indeed bound to make good his Grotius forms another Objeftion to this purpofe;
Word; yet not by virtue of his Contraft with the
"
Such as are notorioufly wicked, and are no part
Rogues, but of that whereby he ffands engaged to
"
of any civil Society, may, ifwe regard the Law
the Friends whom he has left in his room. In Mo-
"
of Nature, be by any Man punifli'd. (This'*
rocco, and other Parts oiJfrick, the whole Body
"
Hypothcfis we fhall examine in another place.)
o'i Chrijlian Slaves pafs ihcir Faith for each parti-
*'
Now they who maybe punifh'd, and even with
cular Man of their Number, that he fhall not go
"
Death, may likewiie be dcfpoil'd of their Goods,
off; and by means of this Security xhtyzre allow-
"
may be difpoffefs'd of their Rights. But, a-
ed to walk the City without their Chains; and
*'
mongft their i?i^to, that which accrues to them
'0
This i's the Decifion of the iJ(;7/M Lawyers, who fay at the fame time. That if the Surety has engaged thro' Fear, and
he for whom he is Surety engagcth himfelf voluntarily, the Engagement ofthis latter is good, but of the other null. L/ibeo ait.
Si quis per metum Reus
fit
conflitutus, & fidejujpirem nohntem dederit, ipfe 13fidejujfor
liberabitur. Si folits fidejuffor
mctii accef-
Jit,
noil etiiitn Reus, folus fidejiiffor
liberabitur. Digcft.l.4. tit. 2. ^uodmetus canfa, leg. 14.
6. See 1. 5. c. 10.
g. following.
"
Mr. Hrrtius maintains, that in this laft Cafe the Engagement is not valid, unlcfs there be an open Donation of what is de-
livered or promifcd on that account. For, fays he, though he be engaged in Perfon, 'tis only to fave another, who is unjuflly
opprcfied. The Author himfelf in the following Chapter,
4
9- puts the like Engagement among fuch as are extorted by Fear,
or gotten by Surprize, and in Sport. This Criticifm is well grounded, altho' in the Cafe he is fpeaking of the Engagement be
irtc, he to whom it is made can acquire no more Right by our Promife, than bythofe for whom the Engagement is made.
"
Cicero's Latin is this, Ut
ft
frrtdonibus pailum pro capite pretiuin non attuleris, nulla fraus
eft,
nc
ft
juratus quidem id
non feccris. Nam pirata non
eft
pcrduellmm numero dejhiitus,
fed communis boftis
omnium ; cum hoc nee
fides
debet, nee jusjuratt-
Aum
eft'e
commune. See alfo what is faid, 1. 4. c. 2.
8.
'3
Heliodor- jEthiop, I..1 . c. 3. p. 56. When we make War upon Thieves, we do not finifh it with the ufual Ceremonies of
Articles and Leagues. The Greek is, OJ jS i-m piiToli tots Awre/x- iM/l^i :ii\iiJ.& t >sii h QiwS^aCni^ Tiiy riMuiW-
But fee Grotius, 1. 3. c. 19. 2. Numb. 2.
'+
Seel. 8. c. 3. .4.
following.
'
Vid. Inftit.
1.
J.
tit. 21. De Fidejufor. . j.
*'
from
Chap.
VI.
making Vromifes and Tacts,
.
281
from
our
Promife is one
i
and therefore that too
"
blig'd to perform it,
becaufe he plainly gave his
"may
by way of Pimilhrnent be taken from them.
"
Confent, and fuch Confent as
was full and
ButGro/z/^^anrwers
this Argument with great Eafe.
"
abfolute, according to the prefent
Pofture of
Forheth:itvoluntarilybargainswithaThicf,know-
"Things '.
For, us IIe/:o.'!o!us fays, 1. v. c.
if.
inghimto be fuch, does by that very Acl renounce
"
p. zf 5.
Edit. Lugci. Life is lb precious,
that we
all
Exception againft his Perfon, which might o-
"
feldom think we buy it too dearj
though
he
therwife render the Promife invalid. Elfe theBu-
"
had never pals'd his Confent, had he been fe-
finefs was vain and infignificant, and nothing re-
"
cure from the Danger. But in aiafwer to this,
ally pals'd between them. Should I be got out of 'tis fuflicicnt to repeat what we formerly obferv'd,
my
Road, and promife a Thief fome Reward for ThatfInceeveiyO^//^i^//oarifingfromaContra6t,
fetting me right again, there is no doubt to be fuppofes a correfpondenti?/^/:'/ in theotherPavtv,
made, but I ought freely to pay it. And thus too it is not enough that I have in me the necelKirv
the Roman Lawyers rightly maintain," That what- Caufes and Principles of an OhUgation ; but 'tis re-
"
foever is depolited with us byaThief, oughtto quilite, that the Perfon with whom I dcil, be
"
be reftored to him
'^,
if the true Owner of it free from all fuch Defefts as might hinder him
"
does not appear. To which they flaould add this from obtaining z Right upon me. And therefore
farther Condition, That the Man who receives the my having the Potver to give a thing, does not
thing in trufl:, does not know the Fraud of the o- prefcntly make another have ii Power of receiving
ther. For in Cafe he is fatisfied that the Perfon it. Since then an Obligation without a Right an-
is a Villain, and that the Goods are ftolen, I do fwering to it, is of no Ufe or Purpofej it cannot
not fee how he can take them in Charge, without be imagined, that my bare Confent Ihouldbindme
bringing himfelf in as an Acceflaryto the Crime, to a Performance, which the Law of Nature for-
XII. But many indeed there are, who maintain bids the other Perfon to receive at my Hands. And
that Pacts and Promifes, though extorted thro' this is manifeftly the prefent Cafe. For the fiime
Fear, have yet the Force and Power of Obliging Law which prohibits the Application ofViolence
'.
Some urge the i\uthority of the Roman Law, and Terror, muft needs at the fame time prohibit
which bv giving full Reftitution
'-
iTiould feem the Acquirement of any Right, or -any G?.in, by
to fuppofe, that thofe Engagements are in Ibict fuch wicked Means. What Gr>//jfub)oins appears
Juftice binding, but ought to be reliev'd and cor- not altogether agreeable,
"
That if he to whom
refted in Courts oi Equity. But 'tis eafy to vindi-
"
the Promife was made, did obtain it of the other
cate the Pratice, without drawing any fuch Con-
"
Party, by putting him in a Fear, though never
clufion from it. For fince the Parties are Mem-
"
fo flight, he is oblig'd to releafe the Promifer, if
bers of a civil State, the Court does not prefently
"
hedefireit ; not becaufe the Engagement was in-
take it for granted, that one of them offer'd Vio-
"
valid, but by reafon of the Damage which he un-
lence to the other; and fince that Point may bear
"
juftlyoccafion'd. Now if I can at myPIeafore
a Difpute, it feems convenient fo long to keep up
"
orDefire be freed from my Obligation, I amal-
fuch a Contra6t, and to fuppofe it good, till the
"
ready aftually quit of it. What need is there then
Judge
fhall receive manifeft Evidence, That the ofthis round-about way ofApplication? Ton ought
Allegation of Fear , on which the jidion was to releafe me from my Obligation,
if
I requeji it ? Is
grounded, was really juft and true. But it does it not more eafy, and more natural to fay. Since
not follow hence. That Contracts of this kind, you compclVdme by Force to make the Promife, I oiBe
or other Buiinels which may be difannull'd by a you nothing-., and ^tis idle in you to demand thai
of
premptovy Exception at Law, areinthemfelvesfirm me, ivhich JJwuld Ipay, you are oblig'd immediately
and obligatory; ilnce the Formality of that way to re/lore
'?
Add. Senec. Controverf. iv. ^6.
of Proceeding, though proper
rm/
Judicature, yet XIII.Thc fame Opinion is defended by Mr.//o^^ci
is not agreeable to the Simplicity of the Law of
'', though bv different Arguments. He fays, Co-
Nature ; at leaft, when the Cafe happens between tenants entred into by Fear arc not therefore invalid,
Perfons who do not acknowledge a commonJudge, becaufe theyproceedfrom Fear
; for
then it ivouldfol-
Grotius aflcrts
%
"That a Man who makes a low, that thofe Covenants by which Men unite in
*'
Promife through Fear, is therefore naturally o- Ci-vil Life,
and make Laws,
niufl
be invalid
; for
'5
^od ji ego\j:ui
ffolia ahftiilit Latr6\ai pctenia ea non veniam, nihilominu! ei rejiitnerida funt, qui depofuit, quamvis
male
quafita depofuit. Digell. 1. i6. tit.
3. Depofiti vet contra, leg. 31. . i. Seel. i.. c. 13. .5.
following.
Mr. Barbeyr.ic'j NOT'ES on . XII.
'
This is the Opinion of Mr. Montagne in his Eflaj's, /. 3. c. i . who thus delivers himfelf, What my Fear has once made me
tefolve, I am obliged to make good without Fear; and though nothing forces me to it but my Tongue without my Will, yet
I am obliged to maice good my Word. As for my felf, whenever I have inconfiderately deliver'd my Thoughts, I have made a
Conl'cience neverthelefs of difowning them. Otherwife we Ihall come by degrees to abolifh all the Right which a third Perfon
obtains by our Promifcs.
^"fi
vcroforti viro vis pojfet adhiberi [Cicero de
Offic.
1.
3 . c. 30. upon which fee Cr^z'ius's Notes.)
In this alone hath the Law a fecrct Intercft to excufe us in the Non-performance of our Promifes, if we have promifed a thipg
wicked and unjuft in it felf, for the Right of Virtue ought to prevail above the Right of an Obligation.
*
This hath only place in Contracts of ftrift Right, for thofe of good Faith would be null in themfelves, and by the Civil
Law. It is true, that according to the Roman Lawyers, the Words annul, make void, refcind, make goodfully, may be indif-
ferently applied to both forts of Contrafts, becaufe when we are brought to Juftice by the Contrador, who ivould oblige us
to keep them, the Judge may declare them null one way or other, either as having no Force in themlelves by the Tenure of
the Civil Lav.', or being void by fome Exception made by the Defendant. See . 8. Note 5. foregoing ; and .Mr. Noodt's Trea-
tife, De Forma emendandi doli ma'.i. Sec. c. 15,1
6. where it will appear, that our Author's Reafon to excufe the Courfe of Pfo-
ceedings in the Roman Court is no way folid, fince the Judge had always time to know the Force, ^vhecher the Contrdft
were in itfelf good, or not.
'
'
5 Heliodorus's Greek is, 'Af3-,;o'TD/f
4-"X*'
'^'i-'''^"' ^^OTi/Ji.itipi'. A trivial Sentence.
Here we may apply the Maxim of the Roman Lawyers, Non videtur quijquam id capere, quod ei uaejfe
eft
alii reftituere,
(i. e.) He feems not to receive any'thing, that mull of Neceffity reftore it. Digeft.
de Diver/. Rsg. Jkris, leg.
Ji.
pn which
fee the Note of Dion.
Gothofred.
Lib. 2. e. 11. . 7.
>>
De Cite, c. z. . 16,
A thf
282
of
tie Confent
required in
Book III.
the Fear of
mutual Slaughter is the Caufe of
one
Man's
fuhmitting h'mfelf
to the Government
of
ano-
ther.
It would follow likewife^
that a Man ats
irrationally., -who believes his Captive bargaining
ivith him
for
his Ranfom.
Now in the firft of
thefe Reafons, there is a plain Ambiguity
in the
Term of Fear. For that Fear which engages Men
to enter into civil Societies, is of a quite different
kind from that which we are now
confidering
'.
The former is a Caution
againil fomc Evil which
may happen indefinitely ; I know not when, nor
which way : The latter is a dreadful
Apprehen-
fion of grievous Evil juft now
coming upon me,
and which I am not able to refill:.
Therefore the
Covenants
which we make for the Procurement
of
mutual Affiftance
againft a common Enemy,
are entirely of another Nature, from thofe by
which we promife fome Reward, to free our
felves from a Danger which a \nilain unjuftly
brings upon us\ As to the latter Reafon, we rea-
dily acknowledge, that a Rogue afts very irrati-
cnally, when having firil extorted a Promile by
Force, he afterwards yields Credit to the Perfon,
as if the whole Bufinefs had been honeftly and
fairly tranfiiaed. For that Wickednefs and Folly
fhould meet together, is no Contradiftion. On
the other fide, wc may venture to fay. That he
would not ab vevyrat'iofially, who being got Htfe
from
aMifchief,with which he was unjuftly threat-
ncd, fiiould freely pay the Ruffian the Price of his
Villany '. (**) Dionyf.
Mallear. 1. viii.
p. fop,
in
fin.
Edit. Lipjf.
"
Whatever is extorted from pri-
'"
vate Men, or from publick States, by Force
"
and
Necefiity, holds no longer than the Ne-
*'
ceffity it felf continues.
He adds, 'tis univerfally true., that Pa&s oblige,
whenfoever a Good is
received, and when the Atl of
promtfing,
and the "Thing
promised are both lawful.
But is it lawful for
me both to make a Promife for
the refcuing of
my Life,
and alfo to give what J will
of
my own, even to a Robber? But indeed, what
the Robber in this Cafe performs for the Travel-
ler, in forbearing to take away his Life unjuftly,
cannot be call'd'a Good. The abftaining from an
Injury
ought not pafs for a Benefit.
And we are
then only Hxid to have done fome Good to a Man,
when we have conferr'd fome Advantage on him,
which he wanted, or fecured and prefervcd fome
which he before enjoy'dj or have deliver'd him
from fome Evil or Danger, which fell upon him
without our Fault
*.
As to the latter part of the
Argument, it is no good Confequence to fay, "It
"
is lawful for me to promife and to pay the Vil-
*'
lain
y
therefore he has a Right of requiring the
"
Performance from me> or therefore I ftand
"
bound towards him by fome inward Tie upon
"
my Confcience. We may do many things /(^t:;-
fully,
which we cannot be engaged to do by any
Obligation. I may lawfully throw away my Goodsj
but does it therefore follow, that another can ob-
lige me to fuch an Extravagance ? So that the
Rule which the fame Author lays down on this
Subjeftin his Leviathan^, is hkewife felfe
j
Uloat'
foever I may lawfully do without Obligation, the
fame Imay lawfully covenant to do through Fear
j
and
what I lawfully covenant, I cannot lawfully break.
For he ought to have added this Condition, Pro-
vided the other Party can honeftly demand it of me.
XIV. There is on this Point ftill one Queftion
behind, which requires our Examination
;
fince
Promifes made through Miftake, or through Fear,
are void ;
fuppofc the Party after he gets rid of
his Miftake, or of his Fear, is inclin'd to ftand to
his Bargain, What muil: be the way of ratifying
fuch Promifes, and of putting them in fall Force?
For an Obligation that was at firft invalid ', may
afterwards recover its Strength by the Inter\'en-
tion of fome new Caufe, fit to create x Right
y
which in the prefent Cafe muft be a clear and
voluntary Confent. Some then are of Opinion,
That for the Confirmation of fuch a Promife, no
more is requifite, than an internal At of the ^iind,
or a full and free Agreement to the Bufinefs, the*
it be not exprefs'd by any outward Sign. For the
outward Sign, they fiiy, has pafs'd before} and
this being now enforced by the clear and free De-
termimtion of the Mind, nothing is wanting to
the Production of a firm Engagement. Others
diflike this way of deciding the Controverfyj
becaufe they conceive that the internal Conlent,
and the external Sign, ought to exift together,
and that therefore an antecedent external Aft
cannot be a Token of a fubfequent internal
Aft, which perhaps was not then thought of.
And upon this Account, they, to make fuch a
Promile valid, require a new verbal Promife and
Acceptance. Grotius
^
offers a middle
Judg-
ment, that 'tis indeed abiolutcly neceffarv, fome
Signs ftiould be ufed to declare fuch a fubfe-
quent internal Confent, becaufe the other Par-
ty would elfe have no Affurance of his Right}
but there is no NecefTity the Signs ftiould be verbal.
Mr. BarbeyracV NOTES on . XIII.
'
See Lib. 7. c. 1. .7.
*
For, as our Author adds, nothing hinders but that a Man may be both wicked and imprudent at the fame time, according
to the
?,iy\ngoiMenanderKCOTAtdhyStobieus, Serm. 2. 'Aj-uMo^/roc iTtv li Tsrtifict, Wickednefs is a thing that always
wants Reafon and Confideration.
3
The Words of the Roman Ambaflador* to Marcius Coriolanus make to our purpofe, as they are cited by Dionyjius Halicar-
Tiajfenfis,
as at (*) in the Text.
And therefore it was a foolilh Excufe alledged by Potycrates in Herodotus, 1. 3. p. 1 1 2. Thai. Edit. Gr.-ec. H. Steph. when
he pillaged his Friends and Enemies without Diftinftion ; that to reftore to his Friends what he took from them, would be a
greater Obligation, than if he had altogether forborn the Injury.
Mr. BARBEYRAc'.f NOTES on . XIV.
'
There is among the general Rules of the Roman Law, a Maxim which appears quite contrary, SluoJ initio vitiofum
eft,
mn
fotefttraBu
temporis convalefcerc, Digeft. 1. 50. tit. 17. De Diverfis Reg. Jur.
leg. 29. And this Maxim is afterwards .ipplied
to the making of an Heir, ^ce ab initio inutilis fitit inftitutio, ex poftfaBo
eonvalefcere nun
poteft. Ibid. leg. 210. But we
may difcern from divers Examples of the Roman Law, that this Principle has not always been followed, even in the matter
ofWills. Sti Digeft.
1. 12. tit. 1. de Rebus Creditis, &c. leg. 12, &c. aniiDi^'iyf- Gothofredus
upon the Rules quoted above,
as alfo Mr. i)<j/<'s Civil Laws in their Natural Order, Part 2. 1. i. tit. i. Sedl. 2.
J.
34.
Cap. 14.
!> Lib. 2. c. 1 1
f
20.
fince
Chap.
Vf. making Tromifes and
Pafls,
282
fince
others may ferve as well to the purpofej as neceflliry
;
in as much as this lefler
Sum mavper-
llippofc
the
-
Promifcr underftanding his Error, or haps no ways anfwer his
Occailons,
or turn to his
being
deliver'd from his Fear, iTiall voluntarily give Profit
>
and therefore unlefs this
exfrefs Acceptante
what
lie engaged for, or if the thing be already giv- intervened, he fhall be refponfible
only for fucli a
en,
fliall not endeavour to recover it, when he has Sum as he firll ask'd me to fupply him
with
It
convenient
Means; or fhall treat afterwards with may not here be amifs, to
Qo\\{\A<:xPlutarch''i
Ob-
the
other Party about the fimc things, as he would fervation,
Sympof. \. ix. q. 13. p. 741. B.
Edit
about
anything elfe, which the laid Party lawful- IVech. That the Words of the Perfon
that pro-
ly
pofTelfes. To which Decifion we readily fub- pofeth the Conditions, have much more
Power
fcribe.
and Authority, than his to whom they are oflfer'd,
XV.
We are farther to obferve, That to the inasmuch as he has no Liberty of adding to them r
rendring
of a Promife good and valid, there is re- That is, becaufe the latter can obtain no Riwht
quired, not only the Confent of the Perfon who but what refults from the Conlent of the former,
makes it, but likewife of him to whom it is If the Promifer fhew his Agreement to the Re-
made
^*;
and this latter Conient too (as well as queft of the other Party, barely by Nodding, or
the
former) muil be exprcfs'd by Signs fufficient
>
any other Sign of the like Nature, it fhall be fup-
and for this a bare Nod will ferve, if the thing pos'd that the Requeft was tacitly repeated .
Jdd.
offcr'd, be either a matter of free Bounty, orhave Gi-ot. 1. ii. c. 16. f. jz.
been before requciled. For if the other Party do jidd. 1. iii. D. de poUicit. Fid. D. 1. L. tit. 12.
not
confent, or do abfolutely rejeft the Propofal, dc poUicit. Whence fonie have concluded. That
the thing promifcd Hill remains in the Power of to render a Promife valid, the bare Ad of tliePro-
thc
Promifer, though he hzi. /worn to part with mifer is fufficient. Grotius (1. ii. c. 1 1. f.
14.) an-
it> for even an Oath cannot transfer a Right be- fwers,That a Promife once made cannot indeed be
fore Acceptance^ and has onl)' this eflPeft, That it revok'd ; fo as always to lie ready for Acceptance,
makes it unlawful for me to revoke myOffer, till tho' before Acceptance, the Obligation is not fully
I am afTured of the other Man's Refufal. For he contra6ted. But thofe who look more clofely on
that profers any thing of his own to another, "rhat PafTage in the Civil Law may find, That
does neither intend to force it upon him againfl Ulpian teaches no more than this ', a Covenant is
his Will, nor quite to give it over, and throw it the Confent and Agreement of two Perfons, but
away at a Venture; and therefore he lofes nothing a Promife is only on the part of the Offerer; where
of his Right and Title to it, in cafe the other Per- it is not denied, but that Acceptance makes even
fon rcfufe to take it. If a
Rcquefl pafs'd before- the latter firm and obligatory. And indeed the
hand, it ihall continue in Force, unlefs it be ex- State or City, of which Ulpian fpeaks, had before
prefly revoked ;
and in this cafe the Acceptance is fignified its Acceptance, in cafe the Promife were
ilippofed to have been made in the very Petition} made on the Account of Honours already grant-
provided ftill, that what is offer'd', be equal to ed, or now defired
j and only refufed it when
what was defired. For if a Man ask me to lend the Promife was made without Caufe *, Vid. 1.
him a greater Sum, and I profer a lefs, to make I. f. i. d. t. 1. xix. D. De donat. And ao^in,
fuch a Engagement good, his ^jf/jri'/} ^i;i;5/)/^f^ is 1. iii. f. \.d. t. Things thus deliver'd without
*
7'hls is determined in the Code on the account of a Perfon who complained that a Bill for a Sura of Mone):
v.-af extorted
from him, v/liich he upon that account paid. Sluum te non folum cavijfe, verum etiam folviffe pecujiiam conjitearis, qua raiione,
lit vim fnjfus reftitui, quod illatum cjl, foftules, perfpki non
potefi ; quando verijimile non
fit,
adfolutionem te
propcraffc, otr.iJTa Ski-
relii de Chirographs, utpote per z'im extorto,
nifi 1$ in fohendo vim te pajfum dicas, (i. e.) Seeing you confefs that you did not
only give Security for, but paid the Money, we can't fee how you c.in obtain a Reftitution, as if it were forced from you, be-
caufe you fliould have complained of the Bill, as extorted, unlefs you can aver that you were -jlfo forced to pay it, 1. 2. tit. 20.
De his, qua: I'i, Src. leg. 2. It is alfo faid in leg. 4. of the fimeTitle, that Confent after the Force oftcred makes the Contrail vj-
lid. Si per vim vehnetum mortis, aut cruciatus corporis, vcnditia a nobii extorta
efi, iS non earn
fofiea confenfu corroborajlis. Sec
Mr. Barbeyrac'j NOTES on . XV.
'
Nan poteft
Uberalitas nolenti acquiri, Digeft. 1.
39.
tit. 5. De Donation. leg. 19. . 2. Liberality can't be attributed to a Per-
fon unwilling. And again, Invito beneficium non datur, 1. 50. tit. 17. De Divcrf. Reg. Jur. leg. 69. A Kindnefs can't be done
to a Man ng.iind his Will. See 1.
44.
tit.
7. De Obligat. tif All. leg.
55.
^
The French changes the Order of the Author here to render his Reafonings more clear.
3 PlutartFs Greek is,
Kt/e/oTSfsc hvcli r riiTrg^Kiy.y.n^it'v h.o^v ei
'^
Ji^dfJiivsi
)y
u mt)iim.v'lii vxiri Kuejot 'vrg^^Siv-
T:i.
Farther, Mr. Hertius obferves here, that there is this Difference between Engagements advantageous to one Party on-
ly, and fuch as are !jor the Advantage of both, that in this lafl; the Promife muft exaftly anfwer to the Demand, whereas in the
firft no fuch thing is required. For if any one (as the Roman Lawyers exprefs it) fays thus. Wilt thou give me ten Crowns ?
and I anfwer, twenty
; I am engaged for ten only. But on the contrary, if he fays. Wilt thou give twenty Crowns ? and I an-
fwer, ten, I am engaged for no more than ten ; for ten is included in twenty, but twenty is not in ten. But in a Contraft of
Hire, for Example, it the Leafor require ten Crowns, and the Leafee thinks he has hired for five, the firft is not obliged to pafs
it over for that, tho' five be contained in ten. On the contrary, if the Leafor believes he has Lett for five Crown.s and the
Leafee undcrftood him ten, this laft is obliged to pay no more than the former meant, as the Laws folloiving direft. Si
fiipu-
lanti mihi decern, tu viginti refpondeas, non ejje contrallam obligationem,
nifi
in decern conjlat ; ex contrario quoqueji me viginti in-
terrogante, tu decern refpondeas, obligatio
nifi
in decern non
efi
cantraBa; licet enim oportet congruerefiimmam, attamen
manifefiiJR-
mum
eft
viginti iS decern inejfe. Digeft. 1.
45.
tit. I . De verb. Obligat. leg. i . . 4.
Si decern tibi locem fundum, tu autem exi-
ftimcs quinque te conducere, nihil agitur. Sed
etfi
minoris me locata
fenfero, tu pluris te (onducere, utique non pluris erit condudio,
quam quanti ego putavi. Lib. 19. tit. 2. Locati conduRi, leg. 52.
* For Example, if one fays to another. Wilt thou lend me a thoufand Crowns, and I will pay thee
5
per Cent. Intereft, and
repay it in five Months ? and he only anfwers. Yea, or, I will ; 'tis as much as if he had faid. Yea, I will lend you a thoufand
Crown.s, for which you (hall pay me Intereft at
;
per Cent, and repay me in five Months ; and fo he engages himfelf under
thofe Conditions, and he can require no more of him, and on the other fide he can do no lefs lawfully to oblige us.
5 t7/^M;i's Words are thefe, Padum
eft
duorum confenfits, atque conventio; pollicitatio vero offereiitis folius
promijjum, IS idft
eft
illud conftitutum, ut
fi
ob honorem pollicitatiofueritfaila [municipibusi
quofi
debitum exigatur. Digeft. 1. 50. tit. 12. De
Follicitationibus,\eg.
'^. in princip.
* Si qiiidan ob honorem
promiferis, decretumftbi, vel decernendum, vel ob aliam
jufiam caufam,
tenebitur ex pollicitatione;
fin vera
fine
caufa promiferit, non erit obligatus, (i. e.) If one promife for fome Honour conferred or to be conferred, or for fomc other
juft Caufe, he fhall be obliged by his Promife
j but if he promifes for no Caufe, he is not obliged, Ibid. leg. i.
J.
i. See alf(j
Lib.
39. tit. 5. De Donat. leg.
19.
'
Lib.
19., ^. 2. Digefi. de Donations.
Caufe,
28+
0/
the Confent
required in Book III.
Cauie
%
are forbidden to be claim'd j
becaufe the
Propriety ofthe Things being ah-eady transferr'd on
the Community, they could not properly be de-
liver'd without the publick Acceptance.
Smce in all Obligations wh.itfoever, there is re-
quired the Confent of the Peribn to whom they
are direfted
%
or who obtains a Right by them
;
declaring (by himfelf, or Deputy) that he accepts
the Obligation^ and the Right which it transfers to
him
;
and this with Signs iufficient to exprefs the
inward purpofe of Ins Mind; we may hence un-
derltand Ibmewhat as to the^Firmnefs of
Religious
Fows, orEngagements voluntarily
undertaken with
regard to Almighty God. And it feems impoffible
to make thefe with any Force, unlefs God has by
Revelation declared his Acceptance of them
;
or
unlefs he has conftituted fome Vicegerent upon
Earth, to judge of their Validity. For othervvife
a Man cannot be certain, whether it is the Will
of God he lliould, or fhould not bind himfelf in
this manner
;
whether his Fows are pleafing or
dilpleaiing to Heaven. Efpecially fince the Sub-
je6l o( Fozvs mull be fuch Matters, as God has
"not by way of Command punftually and precifely
required at our Hands. For 'tis abfurd and con-
tradictory, to reckon that an extraordinary Per-
formance, which is a matter of ftrift and nccef-
fiiry Duty ; and how can we be aflured, except
by Revelation, that any Ad which God has not
enjoin'd, will be acceptable to him? And to en-
gage in Foivs without knowing whether they will
be received, or not, is idle and ufelefs. But may
we not, in many Cafes, reafonably prefume on the
Divine Confent and Approbation? This we think
can only be done in thofe things which are Inde-
///f/) agreeable to the Law of Nature, and there-
fore to the Will of God} but in which the Ap-
plication to Perfons, Places, and Times, and the
Allotment of the particular ^/aK///y are left to the
Pleafurq, and the Judgment of Men. Thus we
take thofe Fows to be good and jullifiablc, by
which a Man binds himfelf to beftow fuch a Sum
of Money in Chanty to the Poor, or on other
pious Ufes; provided that fuch an Ad: of Bounty
be no Hindrance or Prejudice to any Duty abfo-
lutely neceflary : Or if he enjoin himfelf fet Days
of Falling ; or refolve to abilain from fome pani-
cular Meats and Drinks, within a fixtMeafurc and
Qiiantity } or if he deny himfelf the ufe of fome
fuperfluous Ornaments} as the wearing ofJewels,
Pearls, and Gold
}
or lay any Command or Prohi-
bition on himfelf of the like Nature; all which
Performances fall under fome general Firtue, tho'
the determinate Manner and Proportion of them
are not Matters of ftrict Precept. On the con-
trary, fuch Vows as only create trouble to the;
Undertaker, and no BeneiSt to other Men
j we e-
fteem no better than idle and fuperlHtious, efpe-
cially if they prove an Hindrance to other Duties.
A Scruple has been moved fometimes, whether
the Obligation in the Promifer begin at the very Mo-
ment, when the Offer is accepted bv the other Par-
ty} or whether it is farther neceflixry, that the ^f-
ceptance be formerly made known to the Promifer?
And here it is certain, a Promife may be defign'd,
and be expounded two ways, either thus, / engage
myfelf
to do the thing,
if
it Jlmll be accepted
-^ or
thus, / engage myfelf to do the thing,
if
I floall un-
derfland that it will be accepted. Now which of
thefe two Senfes the Promifer intended, is to be
gather'd and prefumed from the Nature of the
Bulinefs. If the Promife were a matter of pure
Generofity, without Rellriftion or Limitation,
we are to believe it was meant in the former
Senfe; becaufe here the Promifer haftens as it
were to bind himfelf, without ftaying for any
Formality in the other Party. But thofe Promi-
fes are to be underftood in the latter Senfe, which
exprefs fome arbitrary or mixt Condition edential
to the Engagement
'.
Compare Grot. 1. ii. c. 1 1.
f.
If.
XVL It remains that we add a Remark or two
about the Signs ofConfent, which are abfolutely ne-
ceflaiy to the producing of any Obligation, in as
much as the bare Afts of the Will can have no Ef-
fet amongll Men, unlefs manifefted and declared
by fome external Tokens. Oi Signs, the more im-
perfect are fome particular Motions and Geihires,
necelTIiry to be ufed in Commerce, when the Par-
ties tranilifting are unacquainted with theLanguage
of each other. The more perfefl: are F^'ords, and
fuch Words as are underftood on both fides '. See
I Cor. xiv. 1 1. And to make thefe declare the Will
more clearly and more firmly, it has been aconftant
Practice, both to make ufe ofVVitnefTes in Contrai?
ofWeight and Moment -, to whofe Memoryand
Confcience Appeal might be made, in Cafe either
of the Parties denied the Engagement, or cavil'd
at the Expredion } and alfo (as a higher Degree of
Confirmation) to fet down the Terms of the Co-
venant inF^riting'. Inftcad of which the Grecians
fometimes ukdT'allies, v. D.L. xxii. Tit.^.
de fide
"
Si guts, qunm e.v poUicitatione tradiderat rem Municifiims, vindicare velit, repellendus
eft
a fetitione. Ibid. leg. 3. If any
Man require a thing which he hath given to his Freemen, he is to be denied his Petition,
*
Mr. Thomaftus in his Fundament
J
ttr. Nat. isf Gext. I. 2. c. 7. . 1;. draws a Confequence from hence to fliew the Vanity
{palliatam ambitionem he calls it) of fuch Authors, who fiy in their Prefaces, that 'tis to make good their Promifes to the Pub-
lick that they put out this or that Work. And Mr. Bti'^le had before faid in his Advertifement of his Continuation of divers
Thoughts about a Comet, that the Promilcs of fuch Authors is not looked upon as an Engagement by Contraft, nor is the
Publiclc concerned if they break their Word.
9 See Mr. Le C/erc's Notes upon Gen. xxviii. 21 . and Numi. xxx. 3.
4.
Mr. B A R B E Y R A c'j A^Or^S" o . XVL
'
' Hence it comes to pafs perhaps (as our Author adds in his later Editions) that the Turh do not t]>lnk themfelvcs oblig'd
to keep thofe Contrafts or Treaties which are not written in their own Language and Charafters. See Maifelaer Legal. 1. i . c.
30. But provided that Contraftors underftand each other, it matters not in what Language the Contraft is written, as the Ro-
man Law has judicioufly determined. Ulrum autem Latina, an Gneca, vel qualihet alia lingua ftipulatio concipiatur, nihil inter-
eft,
fcilicet,
fi
uterque ftipulantium intelle^um ejus lingua habeat. Nee neeejje
eft
eadcm lingua utrumque uti, fedfufticit
con-
gruenter ad interrogata refpondere. ^in etiam duo Cneci Latina lingua obligationem contrahere pojfunt. Inflit. 1. 3. tit. 16.
De Verborum Obligat.
i
.
*
Teftimoniorum ufus frequens
3"
neeejfarius
eft adfidem rei
gefta
faciendam. Digefl. 1. 22. tit.
5, DeTeflibus, leg. I. in
prineip.
is' leg. II. The ufe of Teftimonies is ufual and neceflary to prove Matters of Faft. We fhall treat of the ufe of
WitnefTes, 1. 5. c. 13.
^ 9.
3 Fiunt enim de his Scriptura, ut quod aSium
eft,
per eas facilius pribari
potcft. Writings are made in Covenants, that the
Matters of Faft may be more eafily proved,
Digeft.
I. 22. tit. 4. De Fide Inftrumentorum, &c. leg. 4. See Mr. Daumafi Civil
Laws in their Natural Order, Part i. I. i. tit. I. Seft. I.
\ 10, i^f. and 1. 3. tit, 6. Seft. 2, Sec iUo Pollu.v, 1. 9. c. 6.
J
70. and Mr. Hemfterbuii'i Note on it,
infirum.
Chap.
VI.
making Promifes and Pads.
injlrum.
For the Memory of Witnefles may be
treacherous,
or their Integrity capable of Corrup-
tion
> but Writings area much itronger Security,
both
ag.unil Forgetfulnefs, and againll Unfaithful-
nels. And as for ^(??T
//"
m/j, it is an ufual way to
elude them, by pleading that they were uttcr'd thro'
Raihnefs, before the thmg had been confidcr'd. But
JFritings do exclude all fuch Prevarication ; whilil
they arc drawing up, they fct the liuilnefs clearly
and leifurcly before the Eyes of the Contraftor
j
\o
that if he once declare his Approbation of them,
he muft be judg'd to have yielded fuUConfcnt to
the Engagement, and cannot afterwards pretend
that he w.is drawn in byPafHon, or Precipitancy.
Nor TixcHVitings liable to fuch violent and crafty In-
teprctations, as are often put upon Mens Difcourlc
>
in which one Particle artificially inferted, and thro'
the quicknefs of the Pronunciation pafllng undifco-
ver'd, fhall unravel and overturn the whole Aff.iir.
And therefore it is not without good Reafon,
That more Credit is given to authentick and un-
quellion'd /7?rwra//, than to the Depofitions of
J-Fitncffes ;
fince what a Man teftifics againil him-
felf, is much itronger Evidence, than what can be
ofFer'd by others ; and fince the Charge never lies
fo heavy upon him, as when his own Authority is
produc'd againil him: Yet the Force of unqueili-
onable \\''itnenes muil then be admitted as Supe-
rior, when they make out by fufficient Proofs, that
the Inftraments produced are fuppofititious or
corrupted.
Farther, although the Strength and Firmnefs of
Co'-jenants does not abfolutely depend on fuch Wri-
tings or Deeds, in as much as they may rightly be
made without them
\
and may as to the Law of
Nature ifill hold good, though thefe Tokens iTiouId
by any Accident be loft
'
;
yet in Courts of civil
Judicature, where they proceed on full and mani-
feft Evidence, the greateft Regard imaginable is
had to Credentials of this kind. And commonly
if ilich are not produc'd, the Party who fues ano-
ther upon a Debt, or Promife, lofes his Caufe
>
unlefs he can make it appear, that they were once
285
aftually in his Cuftody,
and that he has been de-
priv'd of them by iome
Misfortune.
And for this
reaibn it will become a careful Man to fecurc his Bu-
finefs by good and legal Inftrumcnts
; and not to re-
ly too much on the bare Words, or Faith of thofe
he deals with. Thus King
''
Perfetis (in Plutarch
Devitiofopudorc^p.
f^^.B.T'.z. EdJf'^ecb.) lend-
ing a Friend Money, required Securitv in the com-
mon Form. The Gentleman defiring the reafon of
his Strictmefsj I lend according to Law (replied
Perfeus) that I may receive without Law
j
in a fair
and friendly niiuiner. Juvenal^ Sat.
1
3.
-ver.yf.
Tarn facile
^
pronum
eft
Superos contemncre
tcftes^
Si inortalls idem nemo fciat.
^^^^cn Muv^na (in Appian. Mithridat.
p. 114.
C\L(l.H.Steph.) made War upon M/YZ'nWii.-'c^, and
was accufed by th.it King's Commiffioners ofAct-
ing againft the League, he fophillically denied,th:it
he ever law any League. The meaning of which
was, that Pompey had not indeed left Articles of
Peace in Writing, but thought it fuiiicient to lliew
his Agreement by Fi2ff, and accordingly had drawn
off his Army. Richerius reports of the Turh^ that
they are fo conftant to their Promife, fo fecure of
mutual Fidelity, that in their Bargains they ufe no
Bond or Writings but the whole Bufinefs depends
on the Word of the Parties, if prefentj if not, on
the bare mentioning of their Names. Garcilafs de
la Vega teftifies the like of the old Inhabitants of
Pertly Royal Comment. \.\\\\.c. \6. It is vulgarly
known, that if a Creditor fhall reftorethe Intlru-
ment of Obligation
%
or fhall cancel or deftroy it
with his own free Confent, and with the Privi-
ty of the Debtor, it fhall be fuppos'd that the
Debt is forgiven
>
but not if the Debtor got the
W^ritings out of his Hand by Stealth, or any other
unlawful Means. And from all this it appears, that
Seneca
^ '
carries hisPhilofophy a Strain too high,
when he calls Bonds and Papers of Contract by no
better a Name, than Inania habendi ftmulachra^
vain and idle Images of Title and PofTeiTion.
* Writings on Parchment were invented to put Men in Mind, or convince Men of their Word, the Difgrace of Mankind,
(as Mr. de la Bruyere fpeaks in his Charaflers, Chap.
Of
Man] which 'tis likely he took out ofSeneca [De Benef. I. 3. c.
15.) Ad-
hibentur ab utraque parte te/les, ille per tabula; plurium nomina, interpifitis parariis,facit -O turpem humano generifraudis,
ttcnequitiie publica confejjionem ! Annulii nojlris plus quant animis creditur. in quid imprimunt
figna
! Nempe, ne ille neget
accepijfe, quod acccpit, (i. e.) WitnelTes are produced on both fides, the one produces a Scroll of many Names drawn up by the
Scrivener Oh horrid ConfefSon of the publick Fraud, and Wickednefs of Mankind ! We trull more to our Seals than
Souls ! Why do we imprefs our Seals ? Left fuch as we deal with fliould deny what they received.
' Sires gejla{i3.y the Digejls, 1. 22. tit.
4.
De
fide
iuftrumentorum. Sec. leg.
<~,.]fine
literarum quoq; confignatitne, verilate
fa-
flum fuum prrsbcat, r.on idea minus valcbit, quod inftrumentum nullum de ea intercept. Seel. 5. c. 13. ^.8. following, [i.e.] If
a Matter of Faft were duly and truly done without any Writings fealed, 'tis not of lefs Force becaufe there is no InllrumenC
made concerning it.
*
Nee oberit tibi
amiffio inftrumentorum,
fi
modo manifeflis probationibus eos debitores apparuerit, (i. e.) The lofs of a Bond is no
Prejudice, if the Debt can be fully proved. Cod. \.t^. uu 21. De
fide
Injlrum. \t^. i. See alfo, leg.
4, 5, 7, 8, 10. and 1,
4,
tit. iq. De Probationibus, leg. 20, 21.
' This Note is in the Text.
*
See
. 2. Note
7. above.
^ SenecaWVordiiie, Video iftic diptomata, i^ fyngraphoJ, ^Cttutiones, vacua habendi finiulachra.
*
Benef. \.
7, c. 10.
PP
CHAP.
286 Of
the Matter
of
Tromifes and Covenants,
Book III.
CHAP.
VII.
Of
the Matter
of
Tromifes
and
Co'venants.
The Contents of eveiy
Paragraph of the Veventh Chapter.
I.
We are obliged to things poffihle
to be done only.
n
. Promfes of
things impoffible
are void.
III. Impoffibilities
which arife
about Covenants.
IV.
Whether our iitmofl
Endeavour is fufficient
?
V. JFhethcr a Man be obliged to bear fuch Afflicti-
ons as are above Man's Courage and Strength?
Vi. "trjere is no Obligation to things unlawful.
I VII. DiJIooneft
Bargains do not oblige^ though in our
Power.
VIII. Nor fuch
as can't be performed, but by
fome
foul
Anion.
IX. Whether things difhonefAy
given can be recovered.
X
.
Other Mens Goods are promifed in vain.
XI. 2e, and our own,
if
they are under anyObliga'
tion to another.
-
E are in the next place to enquire into the
Matter or Subjeft of Promifes, and of
Covenants ;
or to what things only we
can bind our felves by our Word or Bargain. In
this refpeft then it is indifpenfibly requifite, that
we have both
aa/arrt/anda moral Power o'i Ao'mg
what we engage for> or that the Performance be
neither above our i'^rf^^//^, nor forbidden us by any
Law. For when a thing is placed within myReach
and AbiUty,
andlhavchkewifeaLiberty
to difpofe
of it, there is no reafon why I fhould not voluntarily
ohligi; my lelf to confer it on another, fo often as I
can by this means contribute to the Ufe and Advan-
tage of human Life. On the other Hand, it would
be vain and impertinent to contract an ObUgation
about fuch Matters, as either exceed our Strength,
or are prohibited by a Wronger Obligation lying
upon us
i
in as much as, direftly and lawfully, it
could produce no EfFet.
II. It follows evidently from hence, That o O^-
ligation can lie to ImpoJfMities
} a Sentence com-
monly in the Mouths of all forts of Perfons, but
fuch lis cannot fully be underftood without a clear
and accurate Examination. In order to which it
may be, in the firll: place, convenient to diltinguifh
between thofe Obligations which we voluntarily
brhig on our felves by our own Aft, and thofe
which are hid on us by the Comm.and and Autho-
rity of our Superiors. He that of his own fi-ee
Motion binds himfelf to perform a thing which he
knows tobeimpofflble,
cannot bereckon'dwell in his
Wits
-
: For he reiblves and engages to do that,
which ^t the fame time he forefees he ihall never
be able tocompafs.
But it docs not always follow. That he who by
Pat orPromife undertakes a.nImpoffibility,{htMhc
entirely free from all NcceJIity of Performance, tho'
thcthingitfelfcannotitriftlybe
accomplifh'd. In-
deed, if I have
promised a Manfomewhat, which I
had then good Grounds to think would be in my
Power, but which is now above my Power,or will
be rendred fo before the Day of Performance,by an
Accident of which at the time of the Bargain I w;is
invincibly ignorant ;
I feem in this Cafe, neither
obliged to make good my Word, nor to repair the
Lofs which the other Party fuffers by the Difap-
pointment. Efpecially, if the Poflibility of the
thing were either exprefly mention'd as a necef-
fiiry Condition, or tacitly prefuppofed on both
fides
^.
For inftance, I promife to lend a Horfe,
which at prefentis at fome Diftance from me
j
and
the Horfe dies before he gets to me ; as I cannot
here be bound to make the Horfe forth coming, fo
neither am I refponfible for any Damage the Man
fuftains, who was to have ufed him. For he muft
conceive me to have built my Promife on this ta-
cit Condition, provided the Horfe arrive
fafe
at my
Hands -y
which Condition failing without my De-
fault, the Force of the Promife finks and is inefFe-
ftive. If both the Promifer, and the other Party,
know the thing to be impoffible, and know each
others Confcioufnefs as to this Point, the Engage-
ment {hall pafs for no better than a Jeft. But if
the Promifer only knew the Impoffibihty, and not
the other Party, he fhallpay to him what he lofes
by being thus impofed on. If the Promifer was
carelefs, and neglefted to examine and weigh his
own Strength, fo as to promife an Impoffibility,
which upondueConfideration he might have found
to be fuch, the main Obligation fhall be void
j
becaufe he fuppofed the thing to be poffible, as a
tacit Condition of the Agreement: Yet upon ac-
count ofhis Negleft and Default, he fhall be bound
to anfwer the Damage which befalls the other Par-
ty, through theDifappointmentj but then it muft
be obferv'd. That the Hope and Expe6tation of
Advantage from fuch an infignificant Promife
ought not to come under the Notion of Damage.
The fame Rule holds good in Covenants, fo that
he who through Negligence has bargain'd to per-
form what is impoffible, fhall be free upon paying
what the other Party fuffers } but then he muft like-
wife releafe the other Party from any Obligation
made on his fidej or if the thing be already given
or perform'd, he muft either reftore it, or offer an
Equivalent.
Mr. BarbeyracV NOTES on Chap. VII. .
z.
'Seel 1. c. 5. .
8. aforegoing.
enough to fecure to a State the Power of puniih- Evils, the one ^{fljonefi,
the other unp-ofitabk Fof
"
ingOflfenders,if each particular Subject
engages of two Evils of Commimon,we are to chaofenei-
bvOath or Fealty, that he will not forcibly de- ther'. But it lometimes happens, that we cannot
.
fend or refcue any Peribn, who ihall be thus led fulfil two affirmative Precepts, the Omiffion of
to fufFerJuftice
In the
fecondCafe it would be which,
feparately confider'd, would be finful, yet
"
alike impertinent j
becaufe in civil
Governments
upon their meeting together the Ominion of one of
"
private Men have not the Right of lulling.
In them is look'd upon as lawtul And in this Cdeof
"
the third and laft Cafe, it
would be of no more the two E-^jils
of
Onnjfion, the Icfler is to be chofeii,
a hollile State, in which it is lawful for any Man thing contrary to the Divme Law, in this Cale,
to attemptwhat he
pleafesagainft
another;
and Difobedience to ourearthly Governors ceafes to be
confequcntly
the Right of refifting will return Evil ;
becaufe that Lawwhich binds us to conform
at the lame time." I would rather choofe to to the Will of human Sovereigns, is always under-
eftiblilli the Truth of the Affieition
another way, flood with this Provifo and Condition, that they
byfiyincT that the Force of Covenants, if ftrain'd enjoin nothing repugnant to the Laws of God.
to the hfaheil, does reach fo far, as not only to lay Weare in many Cafes hkewife permitted, rather
on the Parties an intrinfical Neceffity of
perfomiing to choofe the bareExecution ofanother Man's Sin *,
the Conditions, but likewife to give each of them or a Concurrence by way of Inlfrumcnt, than fome
a Rieht of compelling
the other to a Compliance
\
Evil, very prejudicial, or very grievous to be bom,
in cafe hedraw back,by
propofing and prefenting with which wearethreaten'duponretufil. Which
fome Evil And that' therefore eveiy Covenant Point we have elfewherc more largely difcufs'd.
may be refolv'd into this Senfe, / engage to do this Neither is it allowable, as was jull: now hinted,
crihis for you ; if
Ifail,
you fJmU
hai-e a Po-jjcr
of
to make any fuch Comparifon between an Evil,
compelling me by liolent Means. Now to add a fe- troublefome or damageable, and a Sin, fo as to
cond Covenant about
Non-refiftance, would here choofe the latter rather than the former
;
as for in-
be ufelefs and abfurd. For then this fecond Cove- ftance : If a Man ffiould rather aft contrary to hi9
nant muft be enforc'd
again by a third, including cxprefs Duty, than flip the Opportunity of fome
ibme Penalty, as ;/
/
ref.Jl
yon, -when you attempt to Advantage, or fuftain iome real Lofs
;
how pofitive
compel me toPcrformance,youfhall
ha-ve a Poivcr
of
foever his corrupt Judgment may be m concluding
offer
in? Fiolence or Ei-il to me. Thus it is plain, the Sin to be the Icircr Evil. For, were this admit-
the fecond
Covenants add nothing at all to the ted, the Force and Efficacy of Obligations would
firil ; for the firft gave a Power of reducing the depend upon every Man's Opinion
;
and confe-
Defa'ilant by
Violence; and 'tis as eafy to break quently would vanifli into nothing, if I were not
this as that.
What need is there then of backing bound to an Aftion, when the Omiffion of it upon
one Covenant with another, when ten may as account of fome external Regard, appear'd to me
well be broken thro' as one?
more dcfirable than its Performance. Thus it
The laft Argument urg'd by Mr. Hohbes, runs would be but a poorExcufe for a Thief to alledge
thus
Could there be fuch a thing as a Covenantor
for himfelf, that he thought it a lefs Evil to lay
Non-refiftance,
isje pould by it be obliged out
of
fwo Hands on the Goods of his Neighbours, than to get
p-efeniEvils, to choofe
that which appear'd thegreater, his Livelihood by his own Pains and Labour. In-
For certain De.ith is a greater Evil than Reftflance
deed Obligations are fo far from lofing their Force
and Combat. But
of
two Evils it is impofibk for us in thefe Cafes, that they never exert it more vigo-
not to choofe the lefj'er;
therefore by fuch a Covenant roufly ;
for 'tis the very Nature of inch Engage-
ijoe flmild be tied to an Impoffibility,
which contradiHs ments t6 produce in Men an intnnfical Neceflity of
the whole Nature
of
mutual Engagement. Now here fuch Performances, as they would otherwife be a-
it is neceffiiry, that the Rule about chooftng the lefcr
verfc to,upon outward Confiderations and Refpeds.
Evil, be accurately ftated and explain'd. And this VI. To make a Promiie or Paft truly obliga-
properly
fpeaking,can take place only in two ;;- tory, it is farther requifite, that we have a moral
p-ofttable
or hurtful Evils, conCider^d^Cuch. In Poiwrof performing the thing agreed upon. And
which Cafe it looks like a kind of Gain, to fuffi;r if the thing be unlawful, and wc conlequcntly want
only aPart of an inevitable Lofs or Damage : But this
Power, we cannot tie ouriclvcs by any fuch
the fame Rule muft by no means be extended and
Engagement ' ^ For every Promife receives its
4
And by confequence the other is obliged not to refift, till he iliall obtain hU Right, otherwife his Right will do him no
Kood.
See concerning this Mr. Thomafius\ Jurifprud. Dwin. 1. 3. c 7. .88,
tjc-
s
See / 1 f . 3. .
8. aforegoing, and what I have faid in my Treatife of Sport, 1. 4.
c. 5.
6
See what is faid above, l.i.
c.sh-9-
and hereafter /. 8. r. i . . 6. with the Notes
Mr. B A R B E Y R A c'j NO TE S on .
VI.
Gen. xxxviii.
*
L. 5. c. 18.
.i:lc.
>>
DeJ.N.l^G.l.s- C.4. Lib. 4. f. 3. D. deCendili. ob. turp. Cauf. & 1. 12. tit.
J.
IX. The
C H A
P.
Vll.
Of
the Matter
of
Promifes and
Covenants,
2^5
XI. The third Qiieftion moved on thisHeadis,
whechcra
Reward given for villainous Scn'ice, may
be
rcdcmandcdorrecover'd? And here the Law of
Nature affords no Pretence for fuch a Reco\ery,
provided the: RcccfverXxxs, not dealt deceitfully with
the other Paitv. And the other has not fuilaineda
gieat Damage
'.
In as much as the Grccr by de-
livering up the thing promis'd, intended no doubt
to transfer the Propriety of it j and this (ioo in way
of Debt, in Conlideration of a Service pcrform'd
for him, which he himiclfvalucd at this Rate. Now
we k now th at when any thing is given, even Gratis^
all Right ofRecovery ceafcth. Nor wilr it alter
the Cafe to urge, That the thing was here cbtain'd
on an un'iuil Title, and by Ways and Mearis ex-
prefly forbidden by the Laws. For this Alleviation
cannot with any colour be made by the Perfon who
gave the Reward ; in as much as he voluncarily
bargain'd for the wicked Service, and when that
was perform'd for him, thought himfelfto reci'ive
fomewhat equal in Value to the Price agreed upah
;
nor can he complain of a Villany, of which he
himfelf was the principal Author. Indeed the Tl-
kgality
of
the Meanshy which the Reward was re-
quired, if confider'd in regard to the publick Au-
thority, iTiall produce thisEffeft, That it fhail be
in the Magiftrate's Power, to take the thing from
the Receiver by way of Puniihment, and (if he
fees fit) to reftore it to its firft Owner. For In-
ftance, if a cunning Strumpet fhouldchoufe an un-
wary young Man out of a conliderable Sum of Mo-
ney, fhe may fairly be obliged to refund >
fince c-
ven in the moil vicious Bargains fome Shadow of
Juftice is kept up, and the Laws of Contrafts in
fome fort obferv'd.
But firther, fince it is accounted moft bale and
vile in a Man, to demand a Reward for doing a
thing which it is his Duty to perform Gratis, it is
made another QuelHon, whether what he have pro-
mis'd or given for a thing before juftly due to us,
may be with-held or recover'd. Some anfwerab-
folutely
',
That if we refpeft the Law of Nature,
Promifes of this kind are good and valid, fince
thofe likewife are fo, which wc make without any
particular Reafon or Profpect. Yet at the fame
ti me whatfoever Damage is fullain'd by violent Ex-
tortion, ought to be fully repair'd. Perhaps the
Bufinefs may be more clearly fettled, if we diftin-
guilli whether the thing which we fay was before
due to us, was due upon an imperfeft, or upon a
pcrteft Obligation. If the former, ourPromife of
a Reward for it fhall hold good, and wc cannot
fue for Recovery. Thus for Inilance, although the
Law of Humanity obliges me to fet a Traveller in
his Way, and though fuch a piece of Service may
perhaps coll me no Trouble,
yet if I bargain to re-
ceive fome Confideration
on that Account, I may
fiirly demand the Payment,
and the other Peifon
cannot recover what he thus parts with ; unlefs I
forced him to make a large and unreafonable Pro-
mife, by filling his Head with falfe Frights, or
any other Stratagem of Knavery. Thofe Promifes
are likewile valid, which we make to incite an-
other to the more ready, and the more cxad Per-
formance of his Duty. For thefe pafs formatters
of free Bounty and Gratuity. But if the thing was
before owing to us in z perfeci M-xnnex
^
and yet
the Perfon who is to perform it, refufes Compliance,
unlefs upon ourPromife of a new Reward, we take
this Cafe to be the fame, as in Engagements made
through Fearor Guile , and therefore to require the
fame way of Proceeding. If then, in a State of na-
tural Liberty, a man refufe to pay me my due, it
is plain he does it upon Prefumption of his own
Strength, and becaufe he believes it is not iii my
power to compel hinl. And confequently, if he
deny to fulfil a Covenant fairly made, without a
new fupplemental Condition, he immediately gives
me jult Caufe ofufing Hoilility to reduce him.
And if my prefent Affairs will not permit me to
engage in a Method of War, but incline me to a-
gree, though on hard Terms
%
I may afterwards
require Satisfaction for the Damage I now fufferj
irnlefsIendtheMatterbyan At of voluntary For-
givenefs. Yet it quite alters the Cafe, if his denial
did not proceed from meer Unfaithtulncls and
Wickednefsj but from his being able to fhew
that he was exceedingly injured in the former Co-
venant, to which he nowdemurs. As for the Mem-
bet:s of Commonwealths, if they refufe to anfwer
an old Bargain without ibme additional Reward,
they will be compell'd to be honell by a Courfe of
publick Juflice.
To this we may add the Diftinftion of the Ro-
man Lawyers
"^
in Cafes of vicious Service, whe-
ther the Fault or Wickednefs was on the part of
the Receiveronly, orof theGiveronly, or of both.
In the firft Inftance, they allow an Action of Re-
covery
J
not in the other two.
X. We are likewile wor^//}' unable or uncapablc
to perfoiTTi any thing ' , or to oblige ourfelvcs to
fuch PeribiTnance, about the Goods or Actions ofo-
ther Men} which are not fubjeft to our Pleafurc and
Difpolal. And being thus independent from us, we
cannot by any A61 of ours, whether of Promif'e or
ofBargain, give another a Right over them, by Vir-
tue ofwhich he fhould claim them as hisDue.Hence
'tis a Rule with the Civilians
%
"
That in cafe
"
one Man promife that another fhall give or fhdl
*'
do fuch or fuch a Thing, neither of them fhall
Mr. Barbeyrac'^t NOTES on . IX.
*
See wLit I have Gid.ibout this Matter in my large Note on . 6. And 1. 4. c. 13. . 16.
Mr. Hcrtius affirms the contrar)-, and his Reafon is, that by fubmitting to a new Treaty, tho' upon hard Conditions, he
deprives himfelf of his Right. And if one fuch Agreement, adds he, made after War be valid, why ftlould it not be fo when
Men thini: by that Means to avoid it ? But fee 1. 8 . c. x. . i
.
Mr. B A R B EY R A c '^ A^O r
5"
<J $. X.
'
Add alfo the things which are not in our Difpofal, altho' otherwife they really belong to us. See what I
have f<rid in
my Treatife oiGames, 1. 2. c. 4. . 4. Js'f.
2. The Words are. Si qiiii alium daturnmfaBurumve quid promiferit, non obligalitur; velut'i JifponJenty Titium quir.^ut aitrti:
iaturum. Inftitut.l.
3. tit. 20. De inutil. Stipulat. . 3. See Cujas, Obferv. 12. 36.
See Grotius, 1. 2. c. 1 1 . f. i o.
^
Add. 1. 1 2. tit. 5. D.de Condia. ob turp. caiif.
'
Liban. Oral. 5.
I receive only thofe
Advantages which the Law allows me ; and where is the Favour in this Cafe ? He that hath been obliged with Kindnefs,
ought to make Requital to his Benefaftor. But wc can Qwe 00 fuch return to * Jude, who doth BOt aft out of Favour to us,
but as the Necellicy of the Law direfts hira.
aq
ftand
Q.^6 Of
the Matter
of Promifes and Covenants. Book
III.
"
ftand obliged.
'
" Which is very juft and true, But if the third Peifon be one placed under
my
if we ftick to the bare Words of fuch a Promife: Governance and Command, his Things
orAftions
But becaufe it feems inconvenient, that an Act fe- are not accounted another's, but my own
> lb
far
rioufly undertaken fhould produce no EfFe<5b, we as my Authority over him extends. And thus
farl
are apt commonly to interpret Promifes of that can bv Promife or other Engagements cffeftually
kind in this Senie, that the Perfon promifing will difpole of them, fo as not only to bind myfelf
to
take the Care to bring the ether Party to perfor- fee the Agreement made good, but to caufe that
the
m.mce% in whofe Name he now feems to make Perfon in whofe behalf 1 tranfact, fliali as foon as
the Engagement : But if I make a Promife to a he is acquainted with my Plcafure, be obliged by
Man in fo exprefs and du'ect Terms as thefe, that virtue of myPower over him, to perform the Con-
I will endeavour to prevail on a third Perfon, to dition. Tho' the common and regular Way
of
do for him fo or fo > I am then obhged to labour proceeding in thefe Cafes, is to apply to the prin-
by all means morally pojfible^ to move that Perfon cipal Promifer, and to require him to force the
to a Compliance. We fay by all means morally Perfon under his Care and Direction to aCompli-
podihle^xhxt is, lb far as the other Man can honellly ancej and upon the Obllinacy and Default of the
defire me, and fo fir as is confiftent with the Na- govem'd Party, the Action at Law iTiall lie againll
tuie and Method of civil Life. And if in this his Governor, unlefs he has rcfign'd his Charge,
Cale, I omit nothing on my part', and yet the and left him wholly to his own Difpofil.
third Perfon refufe to grant theRequeft, I am not XL
Lafily^
I am morally incapacitated to make
bound to make good the Default
>
unlefs this was a Promife with any Effet, to a third Perfon, about
an exprefs Part of my Promife, or was imply'd in fuch Things or Aftions of mine, to which another
the Nature of the Bufmefs^ But if I promife in has already acquired a Right
>
unlefs perhaps this
this manner, Unlefs a third Perfon do
fo
or
fo^ I other Party be content to wave his Claim '. For
iviUforfeit
thus much^'ix. is manifell that if the third he who by a former Engagement has made over
Perfon fail, my Engagement will fland good againft his Right, can have no Power left to difpofe of it
me. Somewhat like this we meet with in the anew. And all Pacts and Promifes might be can-
Roman Conllitutions '', which decree that in cafe a cell'd and eluded with very little Trouble, were
Peifon difpofes in way of Legacy, a thing which we allow'd to enter into new ones, either directly
belong'd to another Man, and which he knew fo contrar)' to the former, or any way inconfiftent
to belong, the Heir fhall be obhged to redeem, with them, as to the PerfoiTnance. In this Cafe
and to rellore it, or if it cannot be redeemed, to therefore, the latter Contradl: is difonnuU'd and rcn-
give the Value of it to the Owner. Yet certain der'd ineffectual by the former, or aswelhould ra-
it is, that a Promife of what kind foever, cannot ther fpeak,the former fhews that the latter can be
lay an Obhgation on the third Perlbn, nor give ofno Force or Ufe. Hence, for inftance, are all thole
the other Man a Right of requiring any thing Covenants void, which Subjcfts make either a-
immediatcly from him. mongthemfelves, or with others, in prejudice ofthe
3 So alfo the Digejls direft, ^itcunque gerimus, cum ex
noflro eontrailu originem trahunt,
nifi
ex noflra perfona obligatlonis
initium fumar.t, inanem aflumefficiunt, l^ ideo, nequejiipulari, neque emere, vendere, contrahere, ut alter fuo
nomine relle agat,
foffumus.
Digeft. Dc Obligat. & Aclion. /.
44.
tit.
7. leg. 11. Certijpmum enim
eft
ex alterius contraSti neminem obligari.
Cod. 1. 4. tit. 12. AV Uxor pro Marito, &c. lep;.
3.
In this latter Cafe the Roman Lawyers themfelves affirm, that the Promife obliges, ^od
fi
effeBurum fe,
ut Titius daret,
ffoponderit,
cbligatur, i. e. If he promifed to procure that Tttius fhould give, he is obliged, Inftitut. iibi fupra. See Mr. Her-
tiui'i Differtation, DeOblig. aliumdatur. faBurumve in Tom. III. of his Commentaries and fmall Trafts, printed in 1700.
5
So L/fv, 1. 2. c. 31. He feeni'd to have fatisfied his Obligation, inafmuch as he contributed nothing on his fide to hin-
der the Bufinefs from being perform'd. See Grotius, Book II. c. \\.
f.
22. and Book III. r. 21 .
y"
30.
6
This hath place only in fuch Engagements where both Parties are concern'd, and not in fuch as are the pure Effedl of the
Liberality of one of the Parties. See the Examples cited by Mr. Hertius in the Difcourfe laft mention'd, Scfi. i . ^.8.
' Thefe are the Words, Non filum autem Teftateris vel Hirredi: res,
fed
etiam aliena legari
poteft ; ita ut Ha^res cogatur rcdi-
mere earn, & pro-
ft
are ; vel
fi
non
poteft
earn redimere, aftimationem ejus dare ^ad ita intelligendum
eft,
ft.
dtfundusfcie-
batalienamremeffe,nonfiignorabat. Inftit. I. 2. tit. 20. De Legalis,
.4. Idemque Juris
eft,fi
potuiffes emere,ik non emeres.
Dig. /. 32. leg. 30- 6. The Reafon of this Law, which appears at firfl Sight very harfh and rigid, is. That the Teftator is
prefumed unwilling to do a thing fo ridiculous as to give away what he had nothing to do with. So that he is accounted to
have bought the thing bequeathed, if it can be, if not, the Legatee mull have an equivalent. See Mr. Daumat's Laws in their
Natural Order, Parti. Lib. 4. tit. 2. Sea. 3. .
3,
Ufc.
Mr. BarbeyracV NOTES on .XL
'
This Author in his Abridgment of the Duties of a Man and Citizen exprefles himfelf after a more general way, /. i. e.
9.
f.
19.
Unlefs the other waves his Claim of Right
{Nifi forte in eum eafum quo alterius jus expiravcrit) which may fitly be
added here. Mr. Thojnafius in his Inftit. Jurifprud. Divin. 1.2. c. 7. .
95, 96, 97.
adds another Reflriftion to the Words re-
cited : Unlefs he that hath promifed may fairly hope that the Cafe may happen. So a Servant may fafely engage himfelf to
ferve another Mailer, when the time which he is hired to ferve his prefent Mailer is expired. And the Owner of .m Houfemay
promife to let an Apartment of his Houfe to another, when the time which the prefent Occupier is to enjoy it is expired. But
it is an unlawful Promife, and confequently null, to engage himfelf to become a Subjefl of another Prince or State, upon Con-
dition that the State of which he is a Member be ruin'd by a Civil War, or dellroy'd after fome other manner. By the Roman
Laws no Man can promife faithfully to give a Man a Freeman, when he is made a Slave, nor a publick Thing, upon fuppofi-
tion that it may become our private Pofieffion. AVr in pendenti erit ftifulatio ob id, quod publica res in privatum aednci,
fS" ex
libero ftrvus fieri poteft Scd protinus inutilis
eft.
Inllit. 1. 3. tit. 20. De Inutil. Stipulat.
J.
2. And 'tis not with-
out Reafon, adds Mr. Thomafius, that Chriftian Princes declare a Promife of Marriage made by a Perfon married, in cafe his Wife
or her Husband die, to be null, and punifli both Parties that have made fuch a Promife. Neverthelefs, the Ume Author in his
Fundatn. Jur.
Nat. & Gent, and his Notes upon Huber. de Jur. Civ. fays, that the Punifliment inflifted in this Cafe feems to
be very rigorous, and favours of Popilh Principles about Marriage as a Sacrament. But Grotius thinks fuch a Promife invalid
in its own Nature, 1.2. c. u. . 8. n.
3.
Dutv
Chap.
VIII.
Of
the Conditions
of Promifes,
297
Ducv
and Allegiance they owe to their lawful So- gatio}7^ even with his own
Mafler
befide- the ge
^T^"^"'"" R 1 T^I ./ / / .in
"'^'''^/f^'^:'''^rPVdi"
that
State
and Condi-
It IS a common Rule, i hat he ivbo has the Pre- tion of Servitude}
and the
Realbn
of ths
ccdciuy in Timc^ has the Ad-vantage in Right
:
Not becaiifc his Mafter had before a full
Rieht
oveTall
that Time confider'd barely in itlelf can make any that he poflefs'd, and all that he could
do to
fuch Difference; but becaufc the whole Power advantageous Purpole. '
^
over a tiling being formerly fecur'd to onePerfon, If a Man, contrary to thefe
Duties^
fhall
have
bars all others from obtaining a Title to it after- deceived and prejudiced
another by
momifinc
a
wards. And hence too it comes to pafs, that a thing, which either was not his own,
or was be-
Servant cannot difpofe of his Labour', otherwife fore otherwife beftow'd and fecur'd-
he fhall be
than his Maltcr plcafes, to whom by virtue of a oblig'd to make good the Damage
; and in many
former Contraft it entirely belongs. By the Ro- Cafes llrall be liable farther to fuffer the
Penalrv
man Laws, a Slave could not enter iiito any OUi- of Cozenage*.
'
See Mr. H-r//w's Parirmue
Jur. Germa?:. 1. I. c.
49,
;o. The fsme Author in his Notes upoh this Place of our Tei-
obferves, th.it the Mnxim takes place chiefly in conditional Bargains, which by the Roman Law are contradcd
bv a finple
Agreement; but as to other Eng.igements, 'tis not .always true. Whereupon he alledges an E.xample of a thin? fold to two
Buyers, but delner'd to the laft
: But fee what our Author further Ihys, /.
5. c. 5.
f
j. againft Groths,
whofe
Principles
Mr. Hertius follows, tho here he fiys nothing m defence of them.
-^
3 Our Author obferves here, that according to the /?ot^ Laws a Servant can't oblige himfelf to his Mafter Bed Sevms aiti
demnon Jolurn Domino
fuo
obiigari non
poteft, fed ne quidem ull't alteri. Inftitut. 1. 3. tit. 20. De iimtil Slipulat i6
And
the Reafon is, .idds he, that the M.ifler has a Right to all the Goods, and profitable Aftions, or Labour and Service of his
Slave, as he is fo. So that a Slave can't oblige himfelf to his Mafter, but by the general Eng.igement he is under as his Slave
Thus Cheats and Tricidng is call'd in the Ro?nan Law, which have not a Proper Name; but chiefly that fort which our
Author IS fpeaking of, as when one engages for a thing that belongs to another, or one thing for another
; efpeciallv if the
fiift be of more value th.in the laft. As for example. If one gives Copper gilt for Silver eilt. See ZJm-/? I
>-,
' ut -.r^
Ztellmatin. And Mr. Daumat\ Civil Laws, i^c. Part L 1. 1. tit. 18 Seft.
3.
^^
^^'
-
Gramond. Hift. Gall. /. 5.
He that is born under a Prince, doth originally engage his Faith and Allegiance to hi.m
and
whofoevcr attemjjts to draw them away, is a moft unjuft Invader of another's Rights ; nor will any fuch
Covenant hold good'
being made contrary to the La^vs and Conftitution of the Kingdom. He that gives his Promife
.againft his Prince is bv the
very Ail releas'd from the Obligation.
'
'
CHAP. viir.
Of
the Conditions
of
fromiCes.
The Contents of every Pai-agraph of the eighth
Chapter.
I. How many ways is a Promife made?
n. What is a Condition?
III. yf Condition refers to the time
p'refent, or the
time to come.
IV. A Condition is either cafiial^ arbitrary., or mixt.
OnccrningEngagement.s by Promife, this is fometimes we fufpend our Oblio-ation
till cer-
hirthcr to be oblerv'd,that fome are made tain Claufes or Provilb's are made'^i^ood.'
purely or
fmply., and fome under Condi-
'^
tion\ or that fometimes we oblige ourfelves ^/^-
II. A Condition is an Appendage
'
added t(
fohtely to luch or fuch a Performance, and fuch A6ts, as are produftive of Rights and Obli
Mr. Barbeyrac'.? NOTE S on Chap. VIIL
. I.
The /?WM Lawyers add to this Divifion, the Determination of the Thne and Place of their Performance
Vid InHit
Book III. ///. 16.
/
2,
&
5.
Our Author himfelf alfo fpeaks of thefe two Circumftances a little farther. The Words in the
Injtitutcs arc, Omnii ftiptdatio aut pure, aut in diem, aut
fnb conditione
fit loca etiam inferiftipulationi I'oUnt P.ri
vduti ^IK^E JVREOS DARE SPONDES ? Idque confeftim peti potejf.
'onijoLent
tur.,
Mr. BarbeyracV
NO TE S on . IL
'Sub conditione ftipidatio
fit,
cmn in aliquem
cafim differtnr oi>ligatio%ut
ft aliquid
fiaaum fuerit, velnon fiierit eontmittatur
PpuUtio, vehni, SITITIUS CONSUL FUERITFJCTUS,
Z^IN^E JUREOS DARE SPONDES
^/niUtuh^ZTt 7
We ought alio to oblcrve that there are tacit Conditions included in an Agreement, which are not exprelTed
As if I'Perfon
felling his Eftate makes a Relerve ot the Year's Profits, this Refcrvc fuppofcs a Condition that there Ihall be fome Fruits on its
J'^'f^
puraftipHlatioex reipja dilationem eapit, leluti
fi
id quod in utero
fit,
autfruausfuturos, aut domum
^dificari flipulaio Pt
Digeft. 1.
45
tit. I
.
DeVerbor. Obhgat. leg.
73.
/;, Princp. See ^vhat is faid above c. 6. . 2. Further, Mr. Hertius obli.-rves hi
-
that wemuft dillingu.fti Conditions n.operly fo call'd, viz. what the Lawyers call a Modus, and what we call a Condition For ex-
ample, J have L.md engaged, and I Icll it upon Condition of i'reeing of it at fuch a time. In this Cafe the Roman L.w sllovvi
the Buyer to have an Aflion agavnft the Seller to force him to free his Land at the time appointed, or let him into PofTediou
mmfi
Id aaum
eft,
ut omni modo intra Kalendasjulias venditor func'.um liberaret, ex empto erit aaio, ut liheret ; nee fvh cmduione
mptiojaaa
inteUigctur,veluttfi hoc ,nodo emptor interrogaverit, Erit mihifundus emptus, ita ut intra
Kalendas Julias /ikre>
"
v'
Ua,ut intra Kalendas a Titio redtmas
? Si vcrofub conditione emptiofaaa
eft,
no;: poterit agi,ut conditio inpleatur Die'-O.. 1 r 8 tit i
Decontrahend. empt. kc leg. 4.
.
init So that fuch a Claufe does not fulpend the Obligation, nor difannul it, that it has no Ef-
!'
wi, T
^
prevents the Exaftion of the Engagement till it takes place. This fort of Agreement may be referred to the Liws
which the L.nvyers call Sub Mcio, on condition that the Legatee ftiall do this or that thing, or with a Profped of it. See the
Interpreters upon
x\,^Digefts, 1.
3;.
tit, i . De Conditionibus
^Demonfirat. &c. Hence it is, 'that Mr. Hertius calls the like ClaUfe
conliderd in mutual Fromilcs and Engagements,
Caujafinalis, propter quam aliquid
fit
vel pra:fiatur, which implies, that it is
not altogether juft, lince m the Example that I have alkdged after him, we may clearly fe Uut there is no fiwl Gi.ufe or Mo-
gationsjj
V. An impojfible and
unlawful Condition.
VI. ne Addition
of
Place.
VII. the Addition
of
Time.
VIII. The
Difference between Bargains and conditio'
nal Promifes.
C
to
298
Of
the
Conditions of
Promifes.
Book 111.
nations, by
virtue of which
their whole Force and
Efficacy
is made to depend
on fome
particular
Event,
proceeding
either from
Fortune,
or trom
human
Plearure\ So that to the true
Nature of a
Condition,
thcfe two things
are requilite,
firit that
it have the Power of deferring
and
iufpending
the
Force of the
Obligation,
and fecondly
that the
Event
cxprefs'd in it do not as yet
appear
j
at lealt
that it be at
prefent
uncertain,
as to our
Under-
bill"
Hence we may
conclude,
that
thofe addi-
tional Claufes arc not ^wf
crly
Conditions
{tho they
feemto be fuch in a
Grammatical
Senfe) which re-
ferto the Time
prefent, or paft. For
Futurities only
are dark and
obfcure
tomortal
Apprehenfions,but
3S for things
which
are now
before
us or have ai-
re idv gone over our
Heads, we have
ufually a clear
Knowledge
of them >
and
therefore
they can in-
clude no Power
capable of fufpending
our Affent.
And
therefore it is given as a Rule in the Inptii-
tions ', that
Conditions which
regard the time pre-
fent, or the time paft, as
fuppofe I ftiould ky, I
will give fuch or fuch a Thing,
?/Titius has been
Conful,
orifMarvius
be ftill
alive; do either im-
mediately
cancel and
annul the
Obligation, or elfe
do not put it oft' at all, nor hinder it from being
pure and
abfolute. For if the things
annex'd for
Conditions, are not as they are fuppos'd to be, the
Engagement is to no
purpofe-, but if they are io,
the Promife is valid as foon as it is made, and be-
gins abfoltiteJ) to oblige. Yet here it muft be obferv'd,
that a Condition
regarding
the time prelcnt or
paft, may be added to an
Obligation, in cafe both
or either of the Parties
tranfafting
be uncertain of
the Thing.
And Promifes of this kind feemto im-
ply a convenient Space of Delay.
Inafmuch as no-
thing can be demanded by
virtue of them,until it
fhall be made clearly apparent to the Promifer, that
the Matter inferted as a Condition has really hap-
pcn'd-, and the Proof of this muft neceflarily take
up fome time. For mftance, a Man unskill'd in
Hiftory may be drawn in to
promife another Per-
fon ten Pounds, if Ca;far
ever pafs'd the Rhine.
Now
here before the Sum can be
claim'd,it muft
be made evident from the Authority of creditable
Hiftorians%
that iuch an Adventure was actually
perform'd.
Again, if I promife in this manner,
'
1 will give fo much Money, in cafe Mavins,
"
who is travelling abroad, be ftill alive;" the
other Perfon can then only require the Money,
when I have receiv'd certain AlTurance of M<e-
vius's Life. But if we take a clofer \'icvv of
thefe Matters, we ftiall find that the above-mcn-
tion'd Promiies, and the reit of the lame Nature,
ought to be interpreted in this Senfc, I will give
you fo much
if
you prove to me that defar pafs'd
the Rhine, or that M^vius the Traveller is now
living j
and thus they become truly conditional
y
but then the Condition is not the Truth and Cer-
tainty of the prefent,
or pajl Aft,^ confider'd in
themfelves, but the future Proof of it to the pro-
mifing P;uty. It is certain therefore, that if the
Truth of the Matter inferted was known on both
fides, and the Perfons were in eaineft,thc Promife
is not conditional, but abfolute. Again, if both knew
the Matter to be falfc,thc Promife ftiall pafs for a
Jeft,and
confequently
produce no Obligation. If a
futureThing
be. added which they knew muft in-
fallibly come to pafs, as fuppofe,
if
the Sun rife to
morroTV, 'tis generally agreed that fuch a Claufc
ought not to be reckon'd a Condition; inafmuch
as the future
Event being already known to be
moft certain and neceflary, docs not delay the Obli-
gation, nor hinder it from taking place this very
Inftant. Yet becaufe we ought not eailly to
prefume that the Claufc is added for no realbn, it
is worth while to confider, whether in fuch a
Promiie, the Paiticlc //
be not put for the other
Particle when^; fo that the Engagement ftiall not
be
conditional, but only made for a Day hence
;
as fuppofe thus, Iivill give fuch
or fuch a thing to
morrow, when the Sun rifeth.
And thus we find that every Condition, properly
fo call'd, includes
fomcwhat which is at prefent
uncertain, at leaft to one of the Parties, between
whomthe Bufinefs is traniaftcd , and the Obligation
remains in Sufpence^
till the thing lliall hereafter
come to pafs, or ftiall be demonftrated, by good
live but only a Stipulation, by which the Seller puts ofF the Delivery of the thing fold, till he can redeem .t u h,ch he eng ge
Io do at a c min Le. Thele forts of Promifes may be referred to thofe which .re made for a certam Day beoufc the tunc ...
lavs
prefix'd or which will come fooner or later, tho' it be not appointed. Mr H.rnus mamtams w>th Re., on as fome
o^slo that where there is a doubt, a Promife ought to be thought purely cod>nonal
"f" f^'^^^f '-V but
--
Our Author here include., fully the Effeft of Conditions, for they not only fufpend the Eftcft of an
J-n.'^g^'^^^^
'
"^
dihnnid or change them where thev are already. Mr. Daim^t in his C,v,t Lam, &c. Parti. I. ''"
-^ r ^u^7;
'^
Jc r hat Condftions are of three forts, according to the different EfFetts which they produce. The firft ,s fuch as accom-
pli the Engagements that depend on them, as wfen 'ti, faid the Sale Jhall take place if the Goods be d^hver d -/u^^^^;
The fecond is
fuch as diflblve a Bargain, as when 'tis faid, in cafe fuch a Perfon comes at iuch a time, the Hire oi the Houle
fti d The third is, fuch as^neither accomplilh nor difrolve an Agreement only mak.ng fome
'-'"f,'"
' '
^^'^""/^
See that in cafe an Houfe that is Lett be refign'd to the Tenant without certain Moveables
which are prom.lcd hmi,the Hirer
Ihall have it fo much the cheaper. Read the fore-quoted Seftion of Mr.Daumat.
Mr. Barbeyrac'5 A/"02^5'
o .
III.
^._
^
'
Gondiihr^es gu^ ad pr^fe.s vel prateritum tempus referuntur, aut ftatim
i.firmantobligatknem,
aut ommmnon
dfr<j
veluTsimWS
CONSUL FUIffvcl SI MJiVIUS VlVIf, DJRE SFONDES ? NamJ
ca ^'.'
"""A"';
^'[r^Jf:
Sol fin
autem i,a Jehabcnt, ftatim
valet, Inftit. 1. 3.
tit. .6. DeVerb.r.
Obllgat. . 6.
See Mr. B^'kcrpoek
.
Obj.rvat.
^'"'ATow
notion
^^hat our Author grounds himfelf here, fince in the Moment which Men
;;-;/
/^'j^Jf/^/J^l^^P,^^^^^^^^^^^^
future, on which the EfFeft of a Promife depends, is pofuively true or ialle the Obligation
trom '^^^.
"f,'";;"^ f or^ fSh a
u elv null or valid, and confequently no Condition properly fo call'd can fufpend the
Eng..gement. Ad that refults from fuch a
ChuVel. hat the Promiie can't be claim'd till the Truth of the Faft be proved ; for as the Ron:an Law).ers Ipeak
^
e.y well i^.^
tnZu;,^atura.Juntcnta,non,noranturobngatU^^^
Thele forts of Promifes pafs for conditional only, when we treat about
aMatterof
Faft of which tficre b no <_ertaint) u nan
it will be true or no. For then the Uncertainty produces the fame EfFeft as if the Claufc depended upon a I i.ture Accident.
3 The Coniunftion, Si, which can't be exprefFed in our Language, is elegant m the /.<?//.
OpintillmDe-
''SiaqHJc,mquefi,bconduionctrduntur,^Ldernumfier^f.Jjunttronin^^^^^
clam^^6 Mr Hertim, whoquotes this PafFage, obferi-esat the flime time that the D.ihnaion made by iV^R'jman Lau abo t tnis
MaTte?Srees not with the Natural Law. The Lawyers lay, that there isa
Difference between
Engagements upon c""dfo
.
a d
fuch a depend ^a Promife at acertain time. In the'hrfl nothing isdue before the thing rEPO
^"d -...
->;---,
^^
^,
is a due from the Moment the Promife is made, tho' the Perlon can't demand any thing till tue time .5
come.
LtJ.t^aiemuj.i
F.vKlcncc,
Chap.
VltJ.
Of
the Conditions
ofPromlfes
299
Evidence,
to have already happen'd. Whenthe and
Efficacy
of
the
Promife lies in
fufpenfe; for it
Condition
appears true, the Obligation begins to ha\'e
mnfi then
befuppofedto have been mack conditionally^
aj-o/<r^ and ablblute Force} if the Condition fail, the that is, in cafe the Promifcr
fimdd have it in his
Obligation
expires with it. Pozver. Now this Rule we allow to hold good, pro-
IV.
Conditionsare commonly divided into /;(?^- vidcdthat the other Party knew the thmg not to
ble and impoffible.
The former are llich as make an be at preient in the power of the Promifcr. For o-
Obligation depend on fome Event, which may na- therwife it looks like Knavery, when a Manexpefts
turally or morally happen. And are again fubdivid- an abfolute Promife, which /hall begin to bind im-
ed into cafual,
arbitrary^ and mixt \ A Cafiial mediately, to put him off with a conditional one.
Condition is fuch as depends, either on the plea- which cannot take place till hereafter. He adds, i/"
fare of a third Perfon, not obnoxious to our Power the Condition ivhereby the thing is promife
d,
may be
and Authority, or elfe on mere Chance and I'^ortune brought into our Poiver, be itfelfin our Pcwer^, we are
in refpeft of us, as fuppofe in fuch a Promife ixs obligedto do whatever is morally
fit
andjufl,
for
the
this, / will give yoii "Ten Pounds,
if
Caius 'marries
Performance
of
it : That is, if I promife you any
Titia) orif it don't rain within thefe
three Days,&Cc. thing, which at prefent is impoffible to me, but
iin arbitrary Condition is fuch as depends, as to its may by my Pains and Care be hereafter rendred
being or not being, on the Will and Power of him,
poffible, I am bound to ufe all my Endeavours, that
to whom a Promife is made under that Limitati- I may become able to difcharge my Engagement
4.
on-. But fhould a Cowf/zV/ow be annexed, de- For Inilance, a young Student in the Law promifes
pending on the Pleafure of the Promifer ', the a Man to plead all his Caufcs in the Court, if he
Engagement would be infignificant
;
as if one arrive at any good Skill in his Profeffion. Here
fhould fiy, I will give you 'Ten Pounds,
if
I think according to Grotius's Rule, the Student is under
fit.
FortheSenfeof fuch a Speech amounts to no an Obligation to ply his Bufinefs with hisutmoft
more than this: I make you an abfolute Promife Strength and Diligence, that he may make himfelf
that at prefent, and hereafter too, it fhall be my fit for the Bar. But this will not hold, unlefs the
Choice to promife abfolutely, or not. And therefore Perfon promifing has exprefly declared, or given
the other Party can hence acquire no Right, unlefs fliir Prefumption, that he will fet himfelf in earnclt
tlie Offer be afterwards improved to a full and per- to the acquiring ftrength for the Performance. O-
feft Engagement }
fince the Condition here men- therwife the Condition may be delay'd /;/ infinitum.
tion'd may be perpetually llopt, or eluded by the Wc may obferve too, that Grotius here ufeth the
Pi'omifer.
Sothatwemayreafonablyfay,ThatW?fl? Term, Conditio Poteftativa, quite contrary to that
is perfcBly in our Power, ought not to be confounded Scnfe in which we have above defined it
>
he makes
with,or thrown amongf.
Matters
of
Chance or Acci- it to be in the power of the Promifer, we in the
dent. Ifthc Condition be indeed in the power ofthe power of him to whom the Promife is dircfted.
Promifer, and yet fuch as he is not able, or is not wil-
Laftly, A ?/a'/ Condition is that the fulfilling
ling always to elude, it mull be enforced by fuppo- of which depends partly on the power ofhim who
fing a particular Time, beyond which it cannot be receives the Promife, and partly on Chance
j
as
deferr'd} 2.%iil^\\y ,Iwillgiveyoufuch a SumofMo- thus for Inftance, I will give you a Sum
of
Mo-
ney, if
I marry, thuLtis, when Imarry. ney,
if
you marry fuch a Gentlewoman. Now this
From what has been hitherto offer'd, we iriiy be is not purely at your Pleafure; for the Gcntlc-
ableto explain more accurately the AlTertions of woman may refute your Suit, or may die before
Grom^i^ upon the fame Head. He fiys. That// the Match is finiiTi'd.
the thing promifed be not at prefent in the Power
of
Wehave only this to add. That a Condition is
the Promifer, but may be hereafter, then the Strength then look'd upon as perform'd, when the other Par-
ficat, incipere deheripecuniam. Venire diemjigntficat, eum diem venijfe, quo pecunia petipofftt. Vbi pure quis Jlipulatm fuerit,
&cefftt,
3" venit dies ; ubi in diem, ceffit
dies, fed
ntmdum venit, ubiJub conditione, nequecejjit, neque venit dies, pendente adhue
ctiiditione, Digeft. 1. 50. tit. 16. De verbor. fignif.\tg.2i'i,. Hence they infer, that what Men pay through Mift.ike, before
the Condition is fulfilled, may be recovered, as if it were not due ; but 'tis not fo in Payments made before the time. /// diem
Debitor, adeo Debitor
eft,
ut ante diem folutum repetere nonpojfit jub conditione debitum, per errorem folutum, pen^hntequidtm
cmditione repetitur, conditione autem exiftente,
repeti nonpoteft, 1. iz.tit. 6. De Conditione indeb. \tg. 10. 16. See Laws 17,18.
But Mr. Hertius thinks, that if wejudge by the Light of Reafon only, we may require our Due as well in the l;>ft as finl Cafe.
For (fays he) in both, according to the Roman Law, neither of the Parties can recant without the Confent of the other, before
the Exiftence of the fuppofed Faft, or the Term agreed on. In both the Obligation defcends upon the Heirs, in both Cafes
there can be no Aftion at Law. All the difference then that can be is this. That the Condition may fail fometimes, whereas
the Term, either fixed or uncertain, will come certainly. Hence Mr. Hertius concludes, contrary to the Opinion of m -7
Doftors, that when we promife a thing which is not in Nature, and which can't take place, but on the account ofa future En-
gagement regulated by the Laws, the Promife is really conditional, tho' there be a time fixed; as if a Man prom! 'cs any one the
Fruits of a Year, and to give fuch a Portion with his Daughter. For it fuppofes that there will be Fruit, and that the Mar-
riage will be compleated. Fid. Digeft. I. 23. tit. 3. De Jure Dotium, leg. 21. & 1.
45.
tit. i. DeFerb. Obligat. leg.
73.
Mr. B.-vRBEYRAcV NOTES on %.\Y
.
'
We find this Divifion in the Coi/f, 1.6. tit. 51. DcCaducis to/lend. . 7. Sin antem aliquid fub conditione reUnquatur,
vet cafuali, vel poteftativa, vel mixta, quarum eventus exfortuna, vel ex honorat/e perjona voluntate, vel ex utroque pendeat. Sec.
*
Thefe forts of Conditions, as our Author obferves here, are alfo called promifcuous in the
Digefts,
1.
3;.
tit. i. De Gon-
dii ionibus iff Dcmonflrat. &:c. leg. 11. .1,
3
Stipulatio novvalet, in rei promittendi arbitrium collata conditione, Digeft. 1.
45.
tit. I. De Ferb. Obligat. \eg. ij.
Illam
autemftiputationem, S IFOWERIS DJRI? inutilem ejfeconftat. Ibid. leg.
46.5.3.
See alio, the 108 Law, . i. & 1. t8.
tit. 1. De eontrahenda Emptione, &c. leg. -j.priticip. &c. & 1. 44.
tit.
7. De Obligat. & Aaion. leg. 8.
+
Probably {hy^M^.Thomafius in his Inftit. Jurifpr.
Divin. I. 2. c. 7. . 112.) Grotius had fome Example in his Mind, as
this,
/'// marry you,
if
I commence DoBor. From whence Mr. Thomafius infers, that as he had not a flock of Learning great enough
to commence Doftor in an Univerfity, a young Man who promifes Marriage on that Condition may eafily
difengage himfelt.
Loca etiaminferifliplationi folent, veluti CARTHJGINI DARE SPONDES ? ^i^ ftipulatio licet pure
fieri
videtur,
tamen reitfa habct tempus adjeaum, quo promiffor utattir ad pccuniam Carthagini dandam, Inftit. 1. 3.
tit. 16. De Verbor. Ohligat.
\. 5.
See Digeft.
1.
45.
tit. i. leg.
73.
in Princip. & leg. 137.
S-
2- As alfo Mr. Daumat'% Civil Laws, Is'c. Part I. 1. i.
tit I. Seft. 3. .6. hx^di Digefi.
Tit. Deeo quod ccrto loco darioportet, 1. 13.
tit.
4.
Mr. BarbeyracV NOTES on
?
VII.
i . Note
3 . and are only the Confequenccs applied to divers Objefts which are
prefented to us in a Civil Life ; Confequenccs from whence refult fuch M.i.xims, which have a Place either without fuppofing
any other thing than the Quality of a Man, or fuppofing fome Deed or human Eftablifhment. So that the Elbblifhments of
which our Author fpeaks make the Matter of the Duties of natural Right as well abfolute as conditioad. 2. All the Eftablilh-
Hients of which our Author treats arc not founded upon an Agreement. The Introduflion and Ufage of the Word in general
depends not upon any Agreement, either exprefs or tacit, if by Agreement we mean an obligatory Confent. See what is faid,
Chap. I . of the following Book,
5,
Note i . The Property of Goods is not originally founded upon any Agreement, as Ihall
befliewn, c. 4. of the fime Book,
4,
Note 2.
^
Vid. Gnt.X. 2. c. ii. f. 19.
O F
3o^
O F T H E
LAW
of
NATURE
AND
NATIONS.
BOOK IV.
CHAP. I.
0/
S p E E c H
5
and the Obligation rvhich attends it.
The Contents of every Paragraph of the firft Chapter.
I. Of the
Ufe of
Speech.
II. Of
the Diverfity
of
Signs.
III. Of
tlx Origin
of
Speech.
IV. Words
fignify
according to Impofition.
V. Impofition is attended with a Compaf.
VI. 'this CompaSi is either general, or particular.
VII. Whence the Obligation
of
difcovering our Mind
to another.
VIII. Woat 7'ruth is., and what a Lye.
IX. E-vefj Untruth is not a Lye j and therefore not
criminal.
X.
Of
the Right which is "violated by Lying, and
whence ^tis deri'Sd.
XI. How
far
Part
of
the Truth may be honejlly con-
ceafd.
XII. Simulation in Things, how
far lawful.
^,
HA T Man was defign'd b)^ Na-
ture for a Life of Society, this
alone might be a fufficient Argu-
ment, that he only of all living
Creatures is endued with the pow-
er of exprelling his Mind to others
by articulate Sounds : A Faculty,
which, abftrafting from this focial Condition,
we cannot conceive to be of any Ufe or Advan-
tage to Mankind. 'Tis well obferv'd by Jri-
Jlotlc ', Nature doth nothing in vain
; and Man
is the only Animal whom fhe hath
invefted with
the Privilege of
Speech : Not fuch as confifts
in the bare Repetition of boiTow'd Sounds, like
the Talk of Parrots, but fuch as is join'd with a
xui.
Of
ambiguous Speech.
XIV.
Of
mental Refcrvatioris.
XV. How
far
wc may be allowed in fpcaking faljly
to Infants.
XVI. It is lawful to fpeak what is
falfe, for line
Prefervation
of
others.
XVII. Howfar
the Governors of States may be in-
dulged
in giving out falfe Reports.
XVIII. In what manner it is lawful to deceive an ilf-
de/igning Curiofity.
XIX. // is lawful to fpeak filfe
to a profefs^d E-
nemy.
Whether a guilty Perfon arraign'd may deny
the Charge.
Wloat the Advocates or Council may, in this
refpeSl, do
for
their Client.
XX.
XXI.
Senfe and Underftanding of what the Words
import. Ry neans of which one may be able
to teach another
j
one may in the moll con-
venient manner command anoth.er , and the o-
ther apprehend his Commands
;
without which
Afliftance, there would fcarcc be any Shadow
of Society, Peace, or Difcipline among Men;
or at bcif, fuch only as would be in the high-
eft degree rude and unpoHfh'd. For (as the Phi-
lofophcr goes on) Voice (or a certain Kind of
inarticulate Sound) is no more than an Indication
of
Pleafure or Pain, and is therefore to be found
in other Animals. Nature having in them pro-
ceeded
fo far, as to give them a Senfe of what is agree-
able or dijlafeful, andan Ability
of fignifying infome
Mr.^ Barbeyrac'x NO TE S on Chap. L . i
.
vunA mifi (iw'ew ;^ otA/f,
Ariftot. Politic. 1. 1. c. 2
fort
Chap.
f.
Of
Speech, and the Ohligatkn
which attends it.
307
fort thefe
JffeSlions amongft themfelves. (Whence it reported to have ^nvtn the Grecians^ inaTem-
nppears, that the Sounds utter'd by Brutes,of what- pcft, upon the Rock of Caphareus, to revenge the
foever kind, are dctcrmin'd by Nature, not by Cu- Death of his Son Palamedes
^.
As hkewife thofe
Horn and Inltitution, like human Difcourfe). But other Marks fet up to guide Ships by Day, and to
Speech wasgiven
tofignify farther luhat ivas ufeful^
or point out the Rocks and Quickfands, together with
prejudicial; jujt^ or unjujl : It being the Prerogative the Mercuries^ pointing Hands, and other Conve-
and Property
of
Men^ above their Fellow-Creatures^ nicnces for Information of Land-travcUcrs. And
to have a Senfe of
Good and Evil^ ofjujlice and In- thus heretofore the Perfans by Hghting Fires all
jujlicc, and the like -yjincefrom their Society and Com- along on the tops of their Hills, ufed in a very lit-
vmnication proceed the united Bodies
of
Families and tie time to fpread fome Reports or Alarms thro'
every part of the Kingdom '. An infinite Variety
ofthcfe Signs are met with in Commonwealths, em-
ploy'd for the acquainting theSubjcfts with fome
particular Matters. To which Head belong Clocks,
Bells, Spears fet up at Auctions, Buflies, Signs be-
fore Houfes, and the like. In War, the Sound of
Trumpet, Beat of Drum, Difchargc of Cannons,
Waving of Colours, i3c. And fo too, certain Ge-
ftures and Motions have been taken up amongH
moft People to denote fuch or fuch Intentions of
the Mind : To go out of the way, to rife up, to
bow, to kiis the Hand, are Signs of Honour and
Refpeft with the grcateft part of the World. To
ly thofe Signs
^
which have been injiituted to exprefs uncover the Head in the Ceremony of faluting, or
mr Meaning and our "Thoughts. to pluck ofFtheShooes in ibme Places is interpret-
II. Now to trace this Point from its firft Head, ed as a Markof Honour, in others ofContempt. It
we muft underftand, that the Nature and Ability is in fome Countries look'd on as reproachful to
of thofe Objefts which afFc6t our Senfes, is fuch point with the Finger, to bend the Nofe, to bid
Commonwealths''. And fince that Want and ^Veak-
nefs, which particular Men lye under, may by the
Aflilhnce of others be conveniently remov'd, and
yet another cannot applyhimfelf tomy Aid,unlcfs
he firfl: underftand what I defire
; which he may
do moft readily by means of fome Signs and To-
kens, and efpeciaily by articulate Words ; there-
fore, that the moft ufcful Inftrument of human
Life may duly obtain its End, in uniting Men in
Society >
and left by the Abufe of Speech Man
fhould be render'd lefs ibciable, than if he were
dumb or filcnt , it muft be fuppos'd a Precept of
the Law of Nature, nat no Man deceive another
as not only gives us notice of their own Prefence
or Approach, but likewife affords our Reafon an
Opportunity of attaining the Knowledge of other
Things. And this cither becaufe there is a natural
Alliance and Connexion between thofe Objefts
and the Things with which they thus bring us
acquainted
;
or becaufe Beings endued with Senfe
and Underrtanding have
,
without this natural
Relation, fix'd iiich Notions upon them, as to
make them capable of reprcfenting continually the
Images of certain Things to the Mind. Hence
arifcth the Diftinftion of Signs into thofe which
are natural, and thofe which owe their Force
and Validity to Cuftom and Compact. Of the
former kind, we are on eveiy fide fupplied with
Inftances from the Frame of Nature
j
as the Day- flretching our Hand or Finger towards it, this per-
break is the Sign of the Sun's rifing quickly af- haps ought to be reckon'd amongft the natural,
ter
; Smoak is the Sign of Fire
5
and the like, rather than amongft the arbitrary Signs. What
By Compaft, Men have impofed the Ufe and Pow- Difcoveries may be made by Nods, Winks, Moti-=
er of Signifying^ on certain Things, Aftions, and ons of the Fingers, or of the Feet, when particular
Motions, and above all, on Words., or articulate Men have once agreed on thofe ways of Intelli-
Sounds form'd by the Tongue, and afterwards re- gence, is vulgarly known, and need not be farther
duced into Letters : And all thefe are found to infifted upon in our preient Defign'. Lucian^
be in ufe cither with fome certain" Perfons, or
a Fig for one {fare k
fica^
,as the Italians call it)
with many the like Motions. To take by the
Beard is in fome Nations the higheft Affront, with
others it pafles for a Token of Veneration
>
as with
the "Tartars., with fome of the htdians^ and, as fome
think, with the antient Gauls
^.
'Tis likwilc a com-*
mon Practice to exprefs by fome Gefture our de--
fire of performing fuch an Action as would require
that particular Motion of the Body, by which in
ftrange Countries we, after a fort, fupply our Ig-
norance of the Language. To affirm a thing by
gently bending our Head} to deny by throwing
it on our Shoulders
J
to refufe by turning our Back,
are Cuiloms almoft univerfally receiv'd. As for
our pointing out a certain Thing or Place by
with the greateft Part of Mankind, or in gene-
ral, with all the World. Under the firft of thcfe
Claffes may be rank'd the Light-houfes and
nightly Fires on the Coafts, for the Direction of
Veflels : By the Abuie of which Nauplius of old is
tells us of a famous Artift in Nero's Court, who
exprefs'd the Amourof A/i??7 imd^yenus as well by
dancing, as he could have done by Narration
j
whom for this reafon a certain barbarous Prince
begg'd ofthe Emperor for an Interpreter. And the
Sieur De Sancy, the French Ambaffador at the Otto-
^_hAA. Ifocrat. ad Nicocl. paulo
poft
prbicip. P/in. 'NH. 1. xi. c. 51. That Power of explaining our Mind, which hath
dilUnguifh'd us from the Beafls, hath caufed another Diftinftion between Man and Man, no lefs confiderable than that betweeii
M.in and Bead, ^itifti/ian is large on this Subjeft, -._ Inftitut.Orat. 1, 2. c. 16.
Sophocl. Oedip. Colon, p. 310. Edk.H.Siepb. The wife Inventions which our Mind conceive
Our Speech declares .^
.
Ptiny
( N. H. 1. 7. c. i
.
) exprefleth the Neceffity of Speech in a very fmart Sentence, when he obferves that, Exteraui aliexc
nos
eft
hominis vice ; one Foreigner is not a Man to another. Add. Garcilas de la Vega, Comm. Reg. 1. 7. c. i
.
^ Add. 1. 10. D. de inrend. ruin, naufrag. ^ Lib.
47.
tit.
9.
^ Which Cuftom is defcribed hy Bardat in hhjrgenis, 1. i. Add. Polyb. 1. 10. c.
39,
(sfc. TXiel
-mj^aeieLf 3 s^vy.-mexdc,
Cfl/jaio;?. Epift. 812. 'Edat-Gr^v.
Jul. African. -/Acdv, 1. 2. c. penult. See \ikew\k Fcrdimnd Pinto, c.6l.
where he fpeaks
of the Horn, which amongft the Japoneze every Man keeps in his Houfe for a Signal upon occafion.
''
From that Place m Livy, 1.
5. c.41.
^fcbyl. Agamem.
Barbarian, let your Hand
, ^
Su
"'
dv-Ti ttiavwi aeiti Kopffct'iai %te}. Supply your want of Speech
.
. i n
Dt Saltatione, Tom. I.
p. So^. Edit, ^mjlcrd.
2oB Of
Speech,
and the
Ohligatm
which attends it. Boo k 1V.
man
Court,
gives an account of twoAf/<?;
whom
he faw there, one by Nation a Tz/rX-, the other a
Perfmn^
who by reafon of their ufmg
different
Signs and Motions, could not
undcrlland
each
other >
till at length a third Mute was found out,
who was able to perform an
Interpreter's
Part be-
tween the two former.
III. But that which we are chiefly
concern d
about in our prefent Enquiries, is
Speech or Dif-
courfe,the moft common
and the moft
ufeful Sign
among11 Men, and introduc'd
for the fake of com-
municating Notions and
Thoughts.
Ofthe Rife ot
which Z)/Wom^/V/?,
Lib.i. p.
8.
Edit.
Rhodom
thro' his Ignorance of the true
Origin of Mankind,
gives this fobulous
Account:
^he
firfl
Men -who
%jere born into thePP^'Id^ led afavageLife,
ivithout
Culture or Refinement ;
going oat in Herds to thePa-
fiures.and
feeding on the
mofi
juicy
Plants, and thofe
Fruits 'Which plain Nature produced.
Being tnfefled
-with the Wild Beafis, Ufe
taught them to
ajjifi
each
other, and Fear compeird them into Society; by means
of
which they grew acquainted, by degrees,
ivith the
Refemhlance of
their Shapes and
Features. And
having from confus'd
Voice, and without Signification,
arrived by
flow
Attempts to pronounce
articulate
Words, fliewing
every thing by Signs, that they had
occafion
to obferve,
and to communicate
, they at
length
gained ability to inform one another
of
all Mat-
ters by Difcourfe.
But, inafmuch as there were many
ofthefe
Communities eflabliflfd
in different
Parts
of
the World, and every'Man
joined his Maoris together
meerly as it
happened, all did not [peak in the fame
manner. And hence arofe the Number and the Variety
of
all forts of
Languages. Lucretius's
Dcfcription is
exactly of a piece with this, /.v. v. 1027,
t^c.
At varies lingua fonitus natura fubegif
Mittere, 6? titilitas exprefpt nomina rerum
j
Non alia longe ratione, atque ipfa
videtur
Protrahere ad gefium
pueros infantia
lingua.
Cum facit ut digito, qua
fint
pnefentia, monfirent.
Proinde putare aliquem turn nomina difiribuiffe
Rebus, y inde homines didiciffe
vocabula prima.,
Defipere
eft
: nam cur hie pojfet
cunSla notare
Vocihus, 13
varies fonitus emittere lingua,
Tempore eodem alii facere id non
poffe
putentur ?
Praterea,
ft
non alii quoque vocibus uft
Inter fe
fuerant, unde
infita
notities
eft
Utilitatis ? 5? unde data
eft
huic prima poteftas,
^id vellet, facere ut fcirent, animoque viderent ?
Cogere item plures unus, viSlofque domare
Non poterat, rerum ut perdifcere nomina vellent
}
Nee ratione docere ulla fuadereque furdis,
^id
fit
opus faElo: faciles neque enim paterentur
-j
Nee ratione ulla
fibi
ferrent amplius aures
Vocis inaudito fonitus obtundere fruftra.
Kind Nature Power of framing Sounds affords
To Man, and then Convenience taught us Words
;
As Infants now, for want o^ Words devife
p
Expreffive
Signs,they fpeak with Hands and Eyes,>
Their fpeaking
hand the want of Words fupplies .
j
That One the various Names
of
'Things contriv'd,
And that from him their Knowledge all deriv'd,
'Tis fond to think : For how could that Mantell F^
The Names of Things, or hfp a Syllable, S
And not another Man perform't as well?
^
Befides, if others us'd not Words as foon.
How was their t//^, and how their Profit known?
Or how could he infhua
the other's Mind,
How
make them underftand
what was defign'd ?
For bis, he'mg
finglc,
neither Force nor \Vk,
p
Could conquer many Men, nor would they fubmit >
To learn his Words, and practife what was fit.
J
How he perfuade thofe
fo unfit to hear? Tj
Or how could favage
they with patience bear v
Strange5'oaW^
and Words ftill rattling in theirEar
?y
Mr. Creech.
He concludes, that fince brute Sreatures could
by different Sounds exprefs different Motions of
their Mind,
. ^iid in hac mirabile tantopere
eft
re.
Si genus humanum, cui vox fcf
lingua vigeret.
Pro variofenfu
varias res voce mtarent"?
Since Or|;^^ fit, fince /^V(? and Tongue,
By Nature's Gift beftow'd to them belong
;
Whatwonder is it then, that iV/c fhould fiame.
And give each different
Thingz different
l^^zmt'i
Mr. Creech.
The chief Defign of Lucretius, in thefe Argu-
ments, feems to have been to oppofe Cratylus in
Plato, who celebrates the firft Inventor of Words,
and the firft Author of the Names of Things, as a
Perfon of the higheft Wifdom : An Opinion which
we fhall examine by and by. And indeed thofe
who believ'd the firft Mortals to havecrawl'd out
of the Earth,
Mutum 6? turpe pecus^
A Dumb and Dirty Herd,
could not eafily hit on any other Account. For'tis
manifeft, that no Languages are bom with a Man,
but all are learnt by Ufe and Experience.
Whence
it comes to pais, that Perfons born deaf, are like-
wife dumb. And 'tis
look'donalmoftasaProdigy,
when fuch an one is taught to fpeak
j
as hath been
in the prefent Age perform'd on the Brother of
Felafco,
Conftable of Caftile
; who having been deaf
from his Cradle, was made to fpeak, to write, to
read, and to underftand Authors. And aninftance
of the like wonderful Operation was not long fince
given by Dr. WalUs at Oxford.
Nor doth it look
probable, that fome one Man in the Beginning
fhould have fram'd a whole Language, with an
exaft Contexture of Words, and a juft Agreement
and Conformity to the Things which they were to
reprefent. But 'tis the general Opinion of Chrifti-
ans, founded on the Authority of the Holy Scrip-
tures, that the firft Languagewas by Almighty
God
immediately infus'd '' into the Original Pair, which
their Children eafily learnt, by the Ufe and Cuftom
of hearing. And that, as for the Diverfity
of
Tongues, this was
miraculoufly produced by
the
Confufion Tit Babel. Yet fome have doubted,
whe-
ther even the Language which Adam fpokc,
was
at firft
compleatly full and perfed, and rich e-
nough to exprefs all manner of Conceptions)
in-
afmuch as the Scripture direfbly mentions
only
Add. Diog.Laert. 1. 10. p. 754.
Edit. Steph. Vitruv. Architeft. 1
/lUU. Ui(Jir- UUCrt. 1. l^. y. /^if..
*-.wJv. ^^.^y"^. ' .,..,-.
and his Remarks upon the Critical Hiftorjr of Father Simon, p. 422.
by Mr. Dupin,
p.
122. Edit. Uoll.
2. c. I.
>
See Mr. Le Chrc upon Gen. ii. 23-
See likewife the Preliminary Diflertation upon tlie Bible,
the
C HA
p. I.
Of
Speech, and the Ohligation
ijohkh attends it.
309
the
Names
which he fet on hVing Creatures. As nius and Difpofition, or their principal Affe6tion
it is
certainly
true of moll Tongues, that they yet thofe vciy P;7z//;^w whence
thefe
Names wer^
were at firft very poor, and very plain, but were deriv'd, fignify merely at Pleafure.
For Inftance*,
enrich'd
in time with Copioufnefs and Elegance
:
though Jdam gave this Reaibn
for
the Name o^'
As
Ukewife that they have, in a long Courfe of w, Becaufe Jloe 'was the Mother
of all Livinjr;
yet
Years,
undergone very fignal Alterations) and that the Word ^^^fhould import
/o //w, is abfo-
that from their CoiTuption and Confufion many lutely owing to Impofition : And though in all
new
ones have, withintheCompafsof a few Ages, Languages, Things allied by Nature are ufually
fprung up in the World
*.
allied in Name, there being obferved in moft Words
IV. But this is moll clear and evident, That the of this kind, fome Conformity of
Stmfture, and
Power of fignifying determinately^ thus or thus, which the Grammarians term
y/^/(?^jj yet this is
that is, of railing fuch certain Ideas in our Mind, by no means conftant and regular, many Words
doth not belong to Words by Nature, but arifcth having very particular Ways and Methods of Va-
purely from the Pleafure and the Impofition of nation; and even this y/^^/o^j it lelf, inafmuchas
Men
'i
for otherwife no Reafon could be given, it confills in a certain Inflexion and Combination
why
different Words lliould, in different Langua- of Words, is it felf eliablilh'd by human Appoint-
ges, be applied to exprefs the fame thing. Which ment. This is the Judgment of ^intiUan him-
is hkewife true concerning the different Forms felf^i IVe
muft
remember
~\
fays he, that the Rule
and Charafters of Letters. St. Aiiftin {de DoBrin. andMethod o/Analogy cannot
tmiverfally be drawrij
Cbriftian.
1. ii. c.
24.)
hath made this Obfervation fince in many Places it is apparently
inconftflent ivith
on the Point
;
"
That one Letter fafliion'd like a //
felf:
For Analogy was not^ at the
firfl ProduRion
"
Crofs (X) imports one Thing amongft the
of
Mankind,
fent dcwn iminediately
from Heaven^
"
Greeks, and another amongll the Latiyis; not to teach them the due Form
of
Speech; but was in-
*'
by the Appointment of Nature ,
but by the 'vented after they had accnflom'd
themfelves to
Dif-
'"
Pleafure and Confcnt of Men, in fixing fuch courfe, and had ohferv'd the particular
Cadences of
"
different Significations; and a Perfon who un- every Word. It is not therefore built upon
Reafon^
"
derllands both Languages, when he would ex- but Example; nor is it the Laiv, but the Experiment
"
prefs his Mind in Writing to -x Grecian, ufeth and Remark of Speaking; An^ogy being indeed the
"this Character differently from what he doth
Effeti of
nothing but Cuflom.
"when he writes to a Roman. Thus too the In Ptoo'sCra/jM*, the Opinion of the Perlbn
"
Word Beta, under one and the fame Sound, in whofe Name the Dialogue bears, is to this pur-
''
Greek is the Name of a Letter, in Latin the pofe; thzt every individual Being includes in its Na~
*'
Name of a Pot-herb : And when I fiy. Lege, tare the true Reafon
of
its Name; which is vain and
*'
thefe two Syllables are by thofe different People abfurd
: And that that is not properly the Name
of a
"
underllood in different Senfes. See the Art
of
'thing,by which Men agree to call it, by uttering
fuch
"
Speaking, by Father Zrtw/,B. I.e. 14. Y.dii.Amfl. orfuch a Portion
of
their Voice ; which in onefenfe
169P.
Nor is it any Prcfumption to the contraiy, may be admitted for true; that is, when fome par-
that we believe Adam
*
to have given Names to ticular Men, contrary to common ufe, impofeodd
the Creatures, not -as. it fell out by Chance, but Names on Things for the Deception of others : As
with the highell Reafon and Defign
;
fuch as were in the Cafe of
Jugglers, Strowlers, and
Gyplies
j
taken from the peculiar Nature of the Things, and with regard to which, feigned
Names are oppos'd to
fully and accurately exprefs'd their dillinguilhing true; being fix'd on Perfons, or Things, contrary
to
Properties, fo as that upon the firft Sound of the the pubhck Impofition; but there is one and the
Words, theNatureofeachThingmightbeunder- fame true Reafon
of
Names, innate alike to the Greeks
flood ; as Philo the Jeiv
reports
''.
For although and Barbarians ; which Affertion is likewife
falfe.
we iTnould grant that the Names fet on Animals, Hermogencs in the fame Dialogue thus delivers his
and fome other Things (for no Man can eafily Opinion on the other fide; I can never be
perfua-
prove this of all) were fuch as denoted their Ge- ded that there is any other Rule or Standard
for the
Mr. BarbeyracV NOTES on . IV.
'
See the Art of Speaking by P. de Lami, Lib. i . c 14.
*
This is the Opinion of Philo the Jew in the Creation of the World. For Mr. Hertius quotes another Paffage here very
unfitly, where he treats of the Suitablenefs of the Seventy's rendring the Original Hebrew into Greek, its Philo affirms, who
fays, that they have found proper Words to e.xprefs the Senfe of the 'Lx\wo( Mofes, Ka/ vtoi irimTfi'^vTa. -mi T^^yuctrnv oco-
{ict-m e^sti'. From \vhich laft Word Mr. Hertius might have obferved, that he fpeaks ofmore than one Perfon, and that it
ought not io be tranflated adinvenit, he found owt, hntthey, feeing the Sequel of the Difcourfe can't otherwife be clear. The
Paflage is in the Life oi Mofes, Lib. 2. Several of the Rabbins, and moll of the Chriftian Interpreters follow Phild's
Judgment
i
but nothing is worfe grounded. See Mr. Lc Clerc on Gen. ii. 19. and F. Malhranche in his Enquiries after Truth,
p. 387.
3 The Latin of ^intilian is this, Sed meminerimus, nonfer omnia dtici analogia
poffe
rationem, cum
13fibi ipfa plurimis in lo-
eis reptignet Non enim cum primum fingerentur homines, Analogia demijfa coeloformam loquendi dedit,fed iitventa
eft, poftguam
loquebantur, fcf notatum in fcrmoni, quid quoque modo caderet, itaque non ration^ utitur,
fed exemplo ; nee lex
eft
loquendi,
fed ob-
feri'atitt\ ut ipfam Analogiam nulla alia res fecerit, quatn confuetudo. But here
demiffa is falfly printed for dimijfa, which it
doubtlels a Fault in the Printing, though it is not fet down among t\ie Errata.
*
Our Author gives himfelf liberty in thefe four firft Paragraphs of this Chapter to enlarge upon Things very evident in
themfelves, and well known ; and therefore ought rather to be fuppofed than proved in a Work of this Nature; and here is
particularly in this Place a long Confutation of fome Reafonings which are met with in one of Plato's Dialogues. I would
willingly have left it quite out, but not daring to aflume that Power, have thought it fuiEcient to let the Reader know that it
is an ufelefs Digreflion.
751
>
Vn(pvKhi'<f.l OfOf/.a. ij^v ij'ipi, aA^oi vcfx^
^
eltt TUV i^KravruVy
^
>l.<L\!svruv.
Comp. Hobbes's
Leviathan, c, 4.
''
This Opinion is iH founded, as Mr. Le Clerc makes appear in his Notes upon
Cen. ii.
19.
See Ualbrnch$'&
Ssargh after Truth, p. 387. ''
Inftit.
Orat. 1. 1. c. 6.
S f Names
Q
I o Of
speech, and the Ohligation "which attends it. Bo o k I V.
Names of
fhin^s, than Compact or Confent
: 'Tis ftions or Anfwers, about Re<afons^ Derivations,
\m
ludmenu that the Name which a Man fixeth
when we are once avnv d at the jirjl Element
of
on
anything,
whate'ver it be, is true and proper-, both.
Though he afterwards is very ingenious
and that
if
he afterwards
alter that Name for
an- to no
purpofe, m uacing out the Rcaions even of
other,
thelaji is no lefs
true and right than the for-
primitive
Words: And yet after all, when he hat>
mer- as 'tiiufual with us to change
the Names of
argued fo long, in all Appearance, for Cratylus',
cur Servants (which will hold good,
provided
no Opinion, he at laft tairly doubts on the whole
Prejudice be hence done to the
common
Agree- Matter.
^,
.. . , . , ...
ment) for
nothingnaturally
hath fuch or
ftich anAp- Sofipater
Charifus
*
"
the Grammanan, thusdif-
fellation, but derives it purely from
the Law
and courfeth
ontoiFarro^nel.^tmT'ongue ts made up
Cudorn of
Speaking
What Socrates
difputes on the
of
Nature, Jnalogy, Cuftorn,
and Authority. The Na-
fide of Cratylus doth by no means turn the Caufe
j
ture
of
Verbs and Nouns is immutable, and delivers
thus for Inftance-
when he fcouts it as an Abfur- to us neither lefs nor more than what is received.
ditv If I fljould
give the Name
of
a Horfe
to what Thus
if
a Manflmild fay fcnmbo infiead
of
fcnbo,
we commonly
call a Man, it would follow,
that the he would be convinced, not by the Power and Virtue
fame thinz
might be truly ftiled,
A Horfe
anda Man.
of
Analogy, but by the very Conjlitution
of
Nature \
it may be anlwer'd, in fhort, that Words of pub- But we muftconfefs ourfelves at a lofs to find out
lick Ufe derive all their Force from publick Im- this Neceflity of Nature, unlels it be faid, that the
pofition, which private
Perfons ought not, to its LatinTongue having in it an extraordinary Sweet-
Preiudice,
to contradidj as we fliall fhew more nefs, wonderfully agreeable to the Ear, it muft
at large
hereafter. Again, that Argument of his is hence come to pafs, that we rejea, at the firft
no
better than a Fallacy > If
a whole Propofition hearing, any harih and untunable Conjunaion of
way be falfe,
therefore a part
of
it, as fuppofe,
the Letters in that Language \
Armbius
f
'
fpeab
Noun or Name
'of
a thing, may be likewife falfe.
excellently to this Point
j
No way
of
Speaking, fays
For aVingle Word is not capable of that Falfity, he, is by Nature either true and right, or
falfe and
which we fometimes difcover in entire Propofiti- improper : For what natural Rcafon can be given, or
6ns The long Difcourfe he afterwards
makes what Law, in the general Conflitutlon
of
thefVorld,
about the Propriety of Terms, will only hold in that weflmild fay,
hie paries, and hsec fella? Since
fome
Derivatives, but not in Primitives. And fince neither do thofe things admit
of
different Sexes, fo as
thefamethings are in different
Countries exprefs'd to be dijlinguifhed by the Mafculine and Feminine
bv
different Words, it likewife
frequently hap- Genders
y
nor can the mojl learned Critick inform
pens that Words which fignify the fime' thing, me of
the OrigindReafonandMeaningofthefeTerms,
have'an Etymology utterly diftinft. Thus Qili the hie and hxc
j
or why the
firft
fliould be applied to
Greek Name for God, is deriv'd from eiv to run j
the Male, and the fecond to the Female Sex. All this
becaufe the Stars which are perpetually running proceeds from
the arbitrary Appointment
of
Man-
their Courfe, were look'd on as Gods by the An- kind.
,.,, -o,^-- r,r
tients: But what Affinity is there in the L^/;
Go/;;
^
rightly reicas the Opinion of thofe
Tongue
between Deus and Curro ? So Man is in who make this to be the difference between Things
Gr^fterm'd i?yf-,
qua/t dr*^{Sv
oraTi, from and fVords, that the latter are naturally the Signs
cottfidering
or contemplating the Obje6fs which he be- of our Thoughts, the former not. Indeed if the
holds But muft we therefore fay, that homo in Meaning of the Affertion be no more than this,
Latin comes from contemplatio? The Soul in Gr^'e^ that Words were inftituted for no other end, but
is named 4i/>
from im-^v^ir, to cool or refreflr.
to be the Signs of our Conceptions, and that there-
out is refrigeratio in Latin for this Reafon, the fore their whole Nature and Effence confifts
Thcmt oi Anima? And the fame may be fliewn in their Power of fignifyingj whereas when
in any other InlHnces. In Ihort, however dili- 1'hings are ufed for Signs, this is merely cxtrinfical
eent any Perfon may be in tracing Etymologies, and accidental to them
>
weought then by all means
^d affigning
the Reafons of Words, yet when he to admit it as true. But if it be intended in this
hath gone as high as he can, to the primitive and Senfe, that the Power of fignifying luch or fuch a
fimple Terms, he will be forc'd to acknowledge,
particular Matter inheres naturally in Words, but
that they are purely owing to Impofition*. What not in Things, thePofition is falfe and groundlefs.
can be more ridiculous, than that oSocrates, when, And on the contrary it is true, that Words natu-
in the Difputation of which we have been fpeak- rally, and without refped to human Impofition,
ing, he is required to give a Reafon for the Words fignify nothing at all, unlefs it be fome fuch con-
,p
and SM-,
he can fay nothing elfe, but that they fufed and inarticulate Sound as we make ufe ofin
owe their Original to the Barbarians ? Indeed he Sorrow, or in Laughter, which ought rather to be
himfelfconfeffeth, that there can be no farther Que- czWdNoife, \.h7in Speech. If the laid Notion be
^
.- -
iS
between Menwho
fpeak the
fame
Language
by
the Cuftom
ofthe Place where the Bufinels is
enAsing
them to
exprels
particular
Things,
and
t^nC.aed ;
unlefs it ftiall
appear that the Stranger
engaging
UH.I 1
^
r
,i.,;w Inter- i..u ^r ^ orrr^-^rl m mi t hisown nativcPhi-afe,
pruicipally
thofe
which
belong
to
daily
Inter-
courfc and
Commerce,
by fuch
cej-tain
Words as
the Ufe of the prefent
Times
wiU
approve
and
authorize : For 'tis this Ufe,
^tem
penes arbitrium
ejl
i^
jus 13
norma
loquendi.
And at the Will of which,
Multa
remfcentur
qu jam
cecidere,
cadentque
^
nunc funt
in honors
vocabula
hath not yet agreed to quit his own native I hi-ale,
to
conform to the Idiom of the other Party,
^nd thus too there are feveral Words which ia
fome Places and Times are look'd on as fcandalous
and
reproachful, in others not. Of this the Name
ofTyrant is a known Inftance.
In the fame manner,
the Term of Barbarian,
which theGjw^^
andRo-
manshdd
tobefodifgraceful,
the Go?^/V King r/^f-
odoric
frequently
applies to his own Nation. And
in the Law
o/^:eBurgundians,
Barbari is veiyot-
1
The Greek is. He/^^o.
(.ly
'
rh .Wto? ,.^iyUr.,
..t.\ -.9^
..-
^
..^^V.
^9
--- -* - -
^'-
iT/T^AiJtl.
common
Talk, and to have their Sales
proclaim d m it,
a=V" " "
-i.: t ... without beine ioUcited to thit
purpofe.
Vid. r.ter. Ma.. 1. ..
c^.
f--^
^^^^^^c^s
NOTES
on . VI.
.
His
Words are. K.' ^'..7.
A=--
?^^->
.--f=-'
^
-^ ^
^^"^''^
^
"^"'^"'^ '""'''"'"
"^^^''"
^^3
The Greek is. "a.-n.f jb c* ^cA .o^-cr^^l-^
^''^-^fr^MiZ&^^>-
6
^'^^-^ ^t^^^'^
*'''-'^''
^ '^^
T
-
'
- -^
^faw^Slx^(
'^^^S'iyJn'i<f^,r&.^^r'i^"^i^"^'>^"''"f^ ^^
j[3.-jttMA
%
The Author's
Words are,
Sed abolita atque abrogata reti-
Tiere infolentite
cujiifdam eft,
isf
frivtla
in farvh
jaUantitf.
PuinBHu'i
c to.
^
Adverf.
Mathmat. 1. :. c. 3. p. 17
Edit. <^enev.
Ibid. c. 10.
i-ijc
<,
J
1. 5. c. 40,
'Trift.
S.
El- o- V.
37-
ten
C HA p. I. Of
Speech, and the Ohligation
vjhich
attends it.
3
1
3
ten the Style which thofe People bcftow on them-
felves. It is here likewife worthy to be confider'd,
that moft Terms of Speech, befides their principal,
have a kind of acceflbry
*
or additional Significa-
tion, by which we at the fime time exprefs our
Judgment,
Paffion, or Efteem. And this is the
reafon, that of many Words which as to their
main Importance exatly fall in with each other,
Ibme are opprobrious and injurious, others not
j
becaufe this additional Signification is found in
fome, and not in the reft. Thus if I give a Man
the Lyc^ I not only fignify that his Speech is dif-
agreeable to his Thought, but farther denote, that
he did this with an ill Intention, and on account
of procuring my Prejudice or Hurt. And 'tis on the
fcore of this latter Indication that the Words are
look'd upon as contumelious and injurious. So if I
call any Perfon an Impojior^ or an Ignoramus^ I af-
front him
; becaufe thofe Names, befides their
proper meaning, include, by the bye,fomewhat of
Contempt and Reproach : Whereas there arc many
other Words, by which I may, without any fuch
Affront or Abufe, fignify myfelf to have been hurt
by another, or fhew that another is ignorant of
fome things
j and which confequently fhall only
'declare the direct Senfe, without any fuch Indica-
tion of Dilgrace. Sometimes this additional Mark
arifcth, not from the general Impofition of Men,
but from the Tone of the Voice (which is diffe-
rent according as we either teach and admonifh,
or flatter and court, or chide and reprove) from
the Lines of the Face, from particular Geftures,
and other natural Signs, which are wont veiycon-
fiderably to alter, diminifh, or increafe, the prin-
cipal Signification of Words. And thus too a figu-
rative Speech very often denotes fome Paffion in
the Speaker, whereas a plain Expreffion barely im'
ports the thing aflcrted : Ufque adeone niori mife-
rum eji
^
? denotes no more than if we fliould fay
barely, non
efl
ufque adeo miferiim mori ; becaufe it
includes a Contempt of Death. From the fame
acceJJ'ory Meaning it comes to pafs, that fome Words
are accounted obfcene, others not ; tho' as to the
main they fignify the fame thing
j
nay, tho' the
thing be not really in itfelf foul or indecent. The
reafon of which Difference fcems in part to be this
j
that fince fome Words exprefs a Thing or an A6t
more loofly and generally, others in a more di-
ftinft manner, and with particular Circumflancesj
therefore he who makes ufe of the latter fort, at
the fame time betrays his Luft, with regard to fuch
a Thing or Aft, and difcovers a Satisfliftion and
Approbation which a Man of Virtue and Breed-
ing would be afham'd of Sometimes too the Ob-
fcenity of Words proceeds from hence, that they
either denote a Contempt of the Thing fignified,
or elfe are ufed only among the bafcr People, or
towards fuch to whom we owe no Reverence or
Refpcft*".
Cafauhon^'m. his Comment on Pcrfius",
hath
difputed at large, whether it be allowable to
apply obfcene Words even to the Reproof and
Correftion of Vice, which is the ordinary Praftice
of fatyrical Writers.
Thofe Words are
grounded
on/pedal Compa5ly
which either
have been inverted
with a peculiar
Signification,
different from
what they bear in
common Ufe, or which are utterly
unknown to
the ordinaiy
Methods of Speech.
Of which kind
arc all thofe ferms
of
Jrt, ufed by
Mechanicks
and others
i
which on account of either
the Mul-
tiplicity and Confufion of Things, or the meet
Pleafure of the Authors, have either been
invented
a-new, or apply'd to another Meaning than what
they obtain'd in vulgar Difcourfe.
Now that no
Man may be deceiv'd by thefe Terms, amongft
Perfons who underftand the particular Art, the
very Nature of theBufinefs in hand will be a liif-
ficient Caution and Security. And amongft the
unskilful they ought to be explain'd and limited
by common Words. Which Explication and Set-
tlement is likewife necefltiry,
when either Artifi-
cers differ about the ufe of their Terms
j
or when
any Perfon for fome particular Reafons thinks fit
either to coin new Words, or to fix a new Senfc
on old ones'^. Some few Perfons in Confederacy
may, and often do frame to themfelves peculiar
Words and Marks of Things, or put a different
Signification on vulgar Terms, fo as to be under-
ftood by each other, and by none befides. (And
how far this Praftice is lawful, will appear from
the Sequel of our Enquiry.
) In which Point it
is enough, if thofe Words or Marks rightly dis-
cover my Mind to thofe, with whom I have thus
enter'd into a particular Covenant about their ufe:
And this holds too in other Signs, determin'd by
the peculiar Impofition of certain Men. Amongft
thefe the principal are the military Tokens and
Signals of War; of which Silence itfelf hath been
fometimes ufed for one. Thus in Polycenus
"
the
Arcadian General undertaking
by Night to fur-
prize the Spartans at the Tog^a^ gave his Soldiers
no other Sign but this. That they fhould kill ail
who ask'd for any Sign. The Arcadians there-
fore were filent ; but the Spartans not knowing
their Fellows in the dark, and fo demanding
the
M^ord^ were flaughter'd by the Enemy. And fo
Pammenes, in the fame Author
f,
put a Cheat
upon his Enemies by altering the Signal of the
Trumpet, and quite inverting the ordinary Me-
thod and Ufe; commanding his Men to fall on
when a Trumpet founded a Retreat, and to re-
tire when it feem'd to call them to a clofe
En-
gagement.
VII. But we mufl carefully obferve, that altho'
by this general and fpecial Compaft wcare bound
to ufe our Words and other Signs in the manner
that hath been agreed upon; yet we are not here-
by in the leaft oblig'd to open and difcover our
Minds to all Perfons. To which may be apply'd
the Saying of Apollonius Tyan<eus (in
Philofirat.
l.iv. c. 1 1,
p.
ipi. 'Edit. Par. MorelAn.
1608.) Pa-
lamedes invented Letters^ not only
for the fake
of
writing, but likewife that Men might come to the
Knowledge
of
thofe things which were not to be writ-
ten. But to effeft this, it is neceffary that another
Obligation be added, arifing either from fome
Our Author hath t.iken all this from The Jrt
of
Thinking, Prt I. c. 14. where we may find the Refleftion better ma-
naged. I do not know why he did not quote the Book, fince he is not fparing of Citation?.
' Firgi/.
JEn.i2.v.
646.
'
Fid. Ciceron. Epijl. ad Famil. IX. 22.
'
Sat. 4. p.
342
Advancement of Learning, /. 3.
<-.
4. in the beginning.
Stratagem. 1. i. c. 1 1. b"
1. j. c 16.
16.
""
Add BacorCi
f
Lib.
5.
particular
g
r4 Of
Speechy and the Ohligatkn ^Uchattends it. Book IV.
pirticul'r
Covenant, or from the general Com- prefent to be tranfiifted by Speech'. Thus, for in-
mand of the Law of Nature : Or lalHy, from the llance, if I undertake to be an Inftruftor to any
Quality
and Condition of theBufmefs which is at Perfon, I am engag'd (by the Contract
of
Letting
Mr.
BarbeyracV
NOTES on .
VII.
'
To explain this Matter diftinftly, we are to obferve, that Speech as all other Aftions of an mditFerent Nature, is to be
governs by three great Principles of Duty, of which we have fpoken before, but muft now repeat them r.z.Rehg^on Self-
W, and Society. I. Wnen we fpeak to God, w, muft ..Uvays fpeak the Truth freely. This .s evident of it elf tho; our
Author proves it bricEy in the beginning of . lo. Nor may we ever abufe our Speech, when we fp^k to Men, to the Dilho-
rour of God. See what I have^ald after our Author in Note 2. upon Ltb. 2. Chap
4. i 3.
11. When we make ufe of
Speech in behalf of ourfelves, either to fecure or defend
ourfelves. or to procure ourfelves fome innocent Advantage, which
neither entrenches upon the Glory of God,
or the Rights of our Neighbour. In this Cafe 'tis not only permitted but ex-
pr flv ordain'd by the Law of Nature, either to fpeak the Truth, or be filent; or to feign and dilTemble as a lawful Defence
^f mfrfelves, or L innocent Advantage
requires. III. The Dut.es of Society oblige us alfo, either to fpeak the Truth plainly,
or be filent or feign and difTemble, if by that Means we can either do good to others, or avert the Danger which threatens
them, without doing any thing contrary to the Glory of God, or to the Damage of any Man. Thus, as our Author ipeaks,
inem ^":n"^
^.-^ mxl^ give Counfel faithfully to them that defire it, and fhew them the right w.iy, who are out of it.
But'on the contrary,
we muft be filent in things which may be prejudicial to any Perfon when fpoken either as to their Per-
Tnn Goods or
Reputation.
Thus if a mad Man running after another with a Sword in his Hand to flay him, asks us which
Tv-v he went we may not only, but we ought to fhew him another way than that which the Perfon purlued took to fave him-
felf And I can't think that any Man will dare to maintain the contrary. By the fame Reafon the wile Midwives of Egypt
did'vervwellto find out fo good an Excufe to Pharaoh, as we may fee by the Revvard God gave them. In fhort, the
gr-ateit Abufe of Speech is, without Contradiftion, this, To make it an Inftrument of Damage to another
_
See
15. fol-
io\vine Hence it follows, that Men ought above all things to aft fincerely in Bargains, and keep their Word inviolably ^vhen
ihey have made a fcrious Engagement. Moreover, %ve ought to remember what I have elfewhere obferv d, that when the
Duties of Society and Self-love are equally
concerned, thefe laft ought to be follow d and lo we may lawfully ufe our Speech
for our own Advantage rather than any others. This is grounded upon Mr. 7itius\ Obferv.^^%
fcfr.tho his Opinion is not a
whir the lefs fin^ular! It is certain, that, as Grotius has obferv'd, Lib. 3. c i. .
9;
moft of the Heathen Philofophers and
Antient
Chriftians
believed with St. Auguftin,
That whatever may be caJl'd a Lye is always unlawful, altho that Matter be
r,nt well cxplain'd, as our Author has done after Grotius. And fince thefe two famous Works have appear d m the World,
verv fe^v, who have been converfant in the Study of Natural Right, but have embraced their Notions. See, for example.
^PcrZLau. -yurilh-ud Divin. Lib. 2. c. 8. \ir. Buddeus, Elem. Phil. PraSl. Part. II. Seft. 6. . J,
{^r. Mi: Fabncus
^\ No^f
;
'n ?hT;C
Which makes a part of the Apocrypha of the New Teftament Ur.Noodt De For.a emeni.
llifrali &c c 3. and feveral other famous
Writers. I might alfo alledge a great Philofopher of our Time who had not oc-
""'
'
;
'
II- d_:_. : 1,;, Wr;i-;,yc Knf hedne..! not treat of it with Authority, wherefore I fhall come to examine
ipture. I. As
to lUedoe good Proofs for it, taken eitliertrom tne l^ature 01 me 1 nin^ or i,o,u ,ux,.. v....v,....u.5 . .....>5^ ., ^.,.j......
.. .
to the Nature of the Thing, I have not yet feen any thing fatisfadory produced. Our Author proves it well
;
and I will exa-
mine in^a few Words the new Hypothefis of a modern Author in A'./. 2. on .
.0^
All that has hitherto been fa.d with any
Cv of
Reafon, may be reduced to thele two or three Difhci.kie., which are not hard to be relolved^ The firft is this. If
theOpnion,
fay they, that allows Men to feign and diffemble upon certamOccaf.ons, either in Deed or Word be once
re'eh-ed
all Confidence in one another muft be banifh'd from the Earth, and by confequence all Society deftroy d. For a
Mar^ can't
open his Mouth, or do the leaft Thing ; but it will be firft demanded of him. Whether he does not believe, that he
ay in
that cafe do otherwife than he thinks ? But this Argument feems to be built on a Suppofition entirely falfe, ''Z- That
The
Confidence by which our Dealings in this Life arc maintain'd, is grounded only on this Perfuafion, that they who fpeak.
nnlht to fay or do nothing but what anfwers exaftly to their Thoughts, their own Confcience being Judge. For Experience
and the
Knowledge of the World prove the contrary evidently. I own, that Profeffed Liars, Natui-al DilTemblers, Falfe
Dealers or Slaves to vile Intereft, in a word, all thofe whoie Honeftyi, dubious, are not proper Objedh of our Confi-
dence
and we ought not to truft them, but with very great Caution, if they fhew that they believe tha one nuy lawfully
foretimes
fpeak contrary to Truth, or profefs, that they believe it always allowable. But when we have to do with honeil
Sen we put nat the lefs Confidence in them becaufe we know they may ufe an innocentFemt or DifTimulation, and be-
e we have feen them ufed ourfelves in certain Cafes with good Reafon for their own particul.ir Advantage or that of their
P.ren and
Friends. As every one is willing to have that Liberty, fo he read,
y
grants it to others
;
and he can t refufe it
them
or impute it to them as a Crime, without being accounted, and that juftly too, unrealoiuble and fooliilj
y
nice. But.
[avThey
the Benefit which may be cbtain'd by a Lye will vanilh into nothing, if we once teach that a Lye is allowable. For
iLe <?^n be of no Advantage but upon this Suppofition, that they to whom we Lye, believe that we do not Lye, and
tha Jmake
Confcience of fpeaking the Truth. If there be an Occaf.on ofFer'd wherem 'tis lawful to Lye, 't s to admi-
nifter a
Medicine to a fick Perfon that may fave his Life. But fuppofmg that we are taught that Phyftcians are exempted
?rom
fpeaking
Truth upon that Occafion, it will happen that they will not be believed tho' they fpeak Truth
j
and fo we
ihKlntoInconveniencies
infinitely greater than thofe which we endeavour to avoid, by allowing them fometimes to
f ve EiUier
the fick Perfon believes that the Pliyfician will not Lye, or at leaft that he may as well fpeak the Truth
;
but
hovv can he believe the firft, if he knows that upon fuch Occafions he may Lye ?
And wiU not the Doubt keep him from
Jakrhethe
Medicine prefented to him ? To this I anfwer. that all this is made evidently falle by Exper^nce Whatever rigui
divine and CafuiJls may fiy, 'tis certain, that there are a thoufand little Lyes, which almoft all the World believe allow'd,
nnd which
neverthelefs fiil i^ot to produce their Effeft. When one is in general perfuaded that others are innocent, he is not
^hvavs upon his guard to examine upon every Occafion particularly, whether the Perfon we have heard may not have reafon
'0
perfuidc us J a Thing is falfe, which is not. We are not fo ready to d,ftruft one another when we have no Caufe of
SuEon ; and there is fcafce any Man, who, tho' he has been innocently deceived by his Phyfician or Friend, w, notneyer-
theSbcl
ere them again upon the like Occafion, if they know how to take him aright, and behave themfelvesweU He may
r^f^nnbt a while after but the firft Impreifions, and the innocent Artifice, when it has had effea, is foon forgotten!
Eut'f'
omettc i^i n:!r.^'ccrfkl, it only proves tha't there were not good Meafures taken, or that fome C.rcumftances ren-
der'd the Thing
unprofitable, but that proves not that it was unlawful and criminal in itfelf Some objed farther that if to
fpetkcontr.uyfo
a Man's Thought is an Aftion of like Nature with local Motion, and other outward Aftions, which having
?oThing
unlawful in themfclves, may become good or evil, according to the different
Intentions by which they are done, there
wi 1 be^o
evil to make ufe of that Means fc^r our moft vile and trifling Interefts, as if I defire a Pin when it is neceilary. or
ftoop to tke it up when I fee it lie upon the Boards of my Chamber, nothing hinders but that I may tell a Lye to get it, pro-
vided I do no Man any wrong by it.'^ But this Confequence does not feen. to be well drawn. For the ufe of Speech is not
. AoAhv luftice' Humanity, artd Charity, but alfo by Maxims of
Prudence. For no wife Man will have recourfe to
T^f^f^ffiife
but in C^fes of Neceffity.
^
Let us hear a pleaiant antient
Writer upon this Subjed, whom neither G/m
Tl m.V Author
have quoted. OvSi msi riw. hd>f^.hjJ.
i^oi,/ i
XPsi<
*>"-':#
4^0^,70^, oyyfcof^^f ;t. i / >* jf^^^ov x,
iZ-ZTivif
,t67w^ <??''. 0^^'
-^'^ff
i iJlnmro^v, Wiaz.T>,el<)i rv
v^/ir^
wf^**,*- ^XP';"",":"
^ ^'*
.'A/.o,,,^=.^.M,
}ahr,l.
Me'dac. ^d Incredul. h PrMf.
"
I fpcak not, fays the Difcoarfer in the Dialogue, of them who Lye for their Profi
"
theva"etobeexcufed,and
fome
commended; as for example, fuch as Lye to deceive their Enemy or them who make ufe
"
If ii^asa Remedy to elcape fome great Danger, as Ulyjfes often did to fave his Life, or to procure the return of his Compa-
A and
Chap.
I.
Of
Speech, and the Ohligation
which attends it.
3
1
5
and Hiring)
to explain and communicate to him a Perfon with a Commiffion to fearch into the
all that
belongs tothatArtorProfeffion. If I fend State of fuch or fuch an AfFair,
he is bound by
"
nions, lut that which furprizes me moft, is to fee fome Men, without any Advantage to themfelves,
to delight more in
<'
Lying than fpeaking the Truth, and continue in it all their Days without Neceffity. Indeed, when
Men lye in Bravery,
and
make a Trade of it, they lofe all Credit with the Wife. Otherwife, though an honeft Man believes he ni,iy
innocently^
for fome good Reafon, by his Difcourfe and Aftions, make another underftand him of a thing he thinks not, yet he does not
therefore ncgleft a Correfpondence between his Words, and Aftions, and Thoughts, as the moll natural Ufe of the Tongue,
and other outward Motions, fo that this Agreement is difturbed againft his Will, being forced to it by the Conilitution
of hu-
mane Affairs, and by the Indifcretion, Imprudence, and Malice of the greateft part of Mankind; at leaft, if he be not engaged
in a thing that brings Trouble, his Candour and Freedom, which are the Charafters of a truly good Man, will hinder him
from fpeaking or doing any thing which may make his Sincerity and Fidelity be fufpefted in the leaft. But there is another
thing which ought to keep us from ufmg any Equivocation, but with much Referve and Circumfpeftion, which is, that we
ought not only to avoid all Evil, but every thing that tends to it. For it is certain, that 1^'Lying, Feigning, and Diffcmbling
upon flight Occafions, Men get a Habit of Diffimulation and Counterfeiting, which degenerates into a Vice, bccaufe it will
incline us to be infincere with thofe to whom we ought faithfully to difcover our Thoughts. For this Reafon it is, that wc
ought to take very great Care to keep Children from Lying (See Montagnis, Eflays upon this Subjeft, 1. i.e.
9. and the Trea-
tife of Educating Children,by Mr. ior^f, . 134,
iffi^.) becaufe this Artifice can ferve only to hide their Faults, and they arc
not of Age fufficicnt to difcover the Occafions, when Diflimulation and Counterfeiting is innocent, and fo they'll come in
time not to fpeak one Word of Truth, but always have a Lye ready for the leaft thing. But as to fuch as are become Men of
Underftanding, 'tis not to be feared but that they'll be able to fet due Bounds to this Permiffion of Feigning and Dilfimulation,
provided they ferioufly labour to regulate their Conduft by the Light of right Reafon, without which they may abufc the leaft
difputable and commonly received Moral Principles, and by which they'll be full of Reverence toward God, Lovers of Juftice,
careful to give every Man his Due, averfe to all fraudulent Dealing, and in a word, a truly good Man ; and I dare anfvver for
him, will never be guilty of any unlawful Diffimulation, and as far as is poffible, he will fo order himfelf, that his Words and
Aflions (hall exaflly agree with his Thoughts. I fay, as far as is poffible, for as the famous Englifi Chancellor, the Lord Bncon,
judicioufly obferves,
"
Serm. fdel. c. 6. Diffimulation is a neceffary Confequence of Silence and Secrecy {Taciturnitatis) info-
*'
much, that whofoever will conceal a thing, muft diffemble, do what he can. In truth, Men are too cunning to fuffer us
"
to remain in a perfeft Indifference, without fliewing any Inclination to one or other of the things which they defire to
"
know. They'll attack you, examine and pump you with a thoufand Queftioiis, fo cunning, th.it unlefs you maintain an
"
obftinate and ridiculous Silence, you muft difcover fomething of your Sentiments ; and if you do nothing to difcover them,
*'
they'll make fuch Conjeflures upon your Silence, that it will be all one as if you had fpoken. You may guard your felf 3.
"
long time by Equivocation, and dark Expreffions, but, in a word, there can be no perfeft Concealment, if fome Degree of
"
Diffimulation be not allow'd ; and fo Diffimulation is nothing elfe but a neceffary Dependent upon Silence. To keep a
"
juft Temper, every Man muft get himfelf a Reputation for Sincerity and Veracity, an Habit of Silence and Secrecy, and an
"
Ability to feign and diffemble, when it is neceffary. It is eafy to anfwer all the other Difficulties railed againft the Opinion
cfour Author, and to oppofe greater to the contrary. It fhall content me to obferve, that if this laft be true, thoulands of
Aftions which the World accounts innocent, muft be condemned, and are praftlfed every Day with Deliberation. I do not
fay, by moft of them who are zealous Defenders of this Opinion, but by all Men generally, we may fay, that the Que'llom
comes to this. Whether (for Example) a Man may fay, that fuch a one is not at Home, or find out fome Trick to free our
felves from an indifcrect and importunate Perfon ? I do not believe that any Man of Senfe will deny himfelf to have commit-
ted fuch Faults, tho' he is forry for them. Neverthelefs, there is no Medium; either we muft condemn our felves for it, or
refign our felves to the Indilcretion, Imprudence, and often to the Malice of another, by a general Sincerity, and without
Referve, oi^ we muft allow a Permiffion to fpeak and aft contrary to our Thoughts. Further, to ihew the Weaknefs of the
Opinion I am now oppofing, I defire it may be confider'd, what Abfurdities they engage themfelves in, who maintain the con-
trary Opinion : For thefe are three Maxims of St. Auguflin, which Mr. La Flacette approves in Pi^rt i . Moral
Effays, \ . That
if all Mankind were at the Point of Dellruftion, and 'twere poffible to fave them all by a Lye, the Lye muft be avoided, and
all Mankind perifh. 2. That if by telling a Lye we could prevent one or more of our Neighbours from finning, we ought
rather to fuffer our Neighbour to fin, than tell a Lye. 3. If by Lying we could keep our Neighbour from eternal Damnation,
we ftiould rather leave him to periih, than fave him by the lofs of Truth. In fine, it is in no wife neceffary to determine,
when and how many times we are permitted to lye ; that depends upon Circumftances, which are infinite, and every Man's
Judgment. Here, as in many other moral Subjefts, we can give general Rules only. As often as they to whom we fpeak have
no Right to require of us to fpeak freely what we think, we do them no Injury if we conceal the Truth from them. And fo
the difguifing of the Truth has not the principal Property of a true Lye, which is to give them with whom we treat reafon to
complain, that we have not dealt fincerely with them. But it does not follow, that we may always fpeak or aft in a manner dif-
ferent from our Thoughts, when a Perfon hath a Right to require the contrary of us. I have alledged the Reafons that con-
cern our felves above, or the Confequenccs of taking too large a Liberty. I own that this Permiffion may be eafily abufcd, and
therefore the fureft way is to ule it as little as poffible ; but a good ufe may be made of it ; and in what a bad Cafe fhall we be,
if we muft condemn and difufe all thofe things, by which Men take an Occafion to excufe or juftify their Irregularities ? But,
II. If it be true, as we have Ihewed, that the Principles of natural Right afford nothing to prove, that all Difcourfe, and in ge-
neral, every exterior Sign differing from our Intentions and Knowledge, is criminal ot it felf There is no Evidence to prove
that the Holy Scriptures condemns it abfolutely, at leaft, if we may fay (what indeed I don't believe) that the Law which forbids
Lying and Diffimulation, is a pofitive Law only. Thus we can't alledge any Text, either in the Old or New Teftament,
where Lying or Diffimulation is mention'd, but it is accompanied with fome Fraud or Cheat, and by which at leaft fome Du-
ty of Charity is broken. Nothing is more common in the Writings of the Hebrews and Hellenijls, than to underftand by-
Truth, Fidelity in keeping our Engagements; and by Lying, Perfidioufnefs, Deceit, and Injury done our Neighbour, after
fome manner or other. The Realon that St. Paul gives for his Exhortation, 7 avoid Lying, and fpeak the Truth every Man
to his Neighl/our, infinuatcs plainly enough, that he did not extend his Prohibition to Lyes profitable, and altogether innocent.
fiseVelthuyjen De Prim.
Ji/Jli is" Decon, where we may find Refieftions which I have omitted. Farther, we may obferve in
the.Scripture feveral Ex.amples of good Men, who are not blamed for having ufed Diffimulation, and an innocent Lye. Sec
Mr. Le Clerc on Gen. xii. 13. Moreover, there is one that proves plainly, that it is fometimes commendable to fpeak contrary
to what we think, and that is, of the Egyptian Midwives mentioned before by the Bye. See Exod. i. zo, 2 1 . As to my felf,
I think an unanfwerable Argument for my Opinion may be drawn from it. 'Tis evident, thefe Women did not Ipeak the Truth
to Pharaoh ; and if any one doubt of it, he will be convinced, if he reads what Mr. Le Clerc fays about it in his Remarks upon
the 17th Queilion of his Uncle; and moft of our Interpreters and Divines agree with him. Neverthelefs, God hath greatly re-
warded that Lye, and confequently not only excufes it, but .ipproves it. For it is an empty metaphyfical Snbtilty to fay. That
God rewarded not the Lye, but the Aft of Mercy, which thofe wife Women fhewed ; as if one and the fame Aftion could be
good and evil in divers Relpcfts, or as if a good Intention could render an Aftion, in its own Nature evil, good. But if this
Example do not iatisfy, behold another, which will make It plain, that God permits, yea, requires fometimes, that Men ufe
an innocent Delufion. 'Tis of the Prophet who is ipoken of, 1 Kings xx.
35,
(Jc. This Holy Man, by God's Order, h.aving
caufed himfelf to be beaten, fet himfelf in the way where King Ahab \va3 to pafs, and cover'd himfelf with a Veil, that it might
not be known that he waited for him; when ;ie perceived him coming, he cried out, and implored hi? Help; and he tells
him how he came in that Condition by an Accident, which he had feigned. He fays, That being in the middle of the Battel, a
certain Man brought a Prifoner to him, and charged him to keep him fafe upon pain of Life, or paying a Talent
;
but while he
was bufy up and down, his Prifoner got away. Hereupon the King fends to the Prophet that he had condemned himfelf; and
then the Prophet unveiled himfelf, declared to him why God had ordered him to ufe fuch an
Artifice, viz. That Ahab might
condemn himfelfby judging in the like Cafe. See Mr. Le Ckrc'i Notes upon the Place.
A Covenant
$
1 6
Of
Speech^ and tie OMigation whici attends it. Book
IV.
Covenant to acquaint me with all the Difcoveries which confifts in a Conformity between
Words
and Informations he hath gain'd about that Matter, and Things, this Ethical or Moral Truth^ of
which
If I am to exercife towards another ;my Duty of we are now treating, fuperadds the Intention and
Humanity, which muft be perfomi'd by Speech, Obligation of the Speaker: On which Score, he
it is manifeil my Words mult be agreeable to my who declares the Truth out of Error, or Impru-
Thoughts and Intentions. If a Man undertake to dence, hath barely recited the Logical Truth, but
write an Hiiloiy^ he is to dehver nothing which hath not exercis'd the Moral. And he who blubs
he knows to be filfc, by virtue of that general out any Matter without any Obligation in him-
Obligation by which we are bound to promote felf, or any Right in the other Party, ought to
the Ule and Benefit of others. As we are like- be efteem'd rather 'an idle Prattler, than a Speaker
wife by a common Engagement
tied to exprefs of Truth. And hence 'tis eafy to gather, what
our Minds by the clearelt and plainelt Signs, in muft be the Nature of a Lye; namely that it is,
all fuch Cafes, when if we do othervvife, we may when our Signs or Words bear a different Senfe
bring fomeHurt or Prejudice on innocent Perfons. from our real Conceptions; whereas the Peifonto
So, laftly, in ill Commerce and Bufinefs between whom the Signs were direfted, had a Right to
Men, in which, by the Confent of the Parties, underftand, and to judge of thofe Conceptions
>
fome Right or Obligation is to be produc'd, we
are to declare our Meaning openly and clearly to
the Perfons with wliom we deal. For otherwife
there could be no polfible way of rightly adjufting
thofe Concerns. But fince it doth not always fo
happen, that I am bound by any of thefe Rules
to open my Thoughts to another about any Af-
fair, efpecially fuch as is private and particular, it
is evident from hence, that I am not under an
Engagement to unfold all my Opinions and In-
tentions to Men alike, but thofe only which they
have a Right (either perfcft or imperfeft) to un-
derftand >
which Right fuppofethacorrefpondcnt
Obligation on my part : And that therefore I may
and we on our part lay under an Obligation to
make him apprehend our Meaning. I take this
to be a more clear and diilinft way of fliewing
the Neceflity we fland iinder to declare oui- real
and undiiguifed Intentions, than if I ftiould derive
the Sin and the Bafcnefs of
Lyings barely from
that general Rule of natiiyal Laiv^ that No Ma
is to be hurt
; as if the whole Nature of a Lye con-
fifted in its Power oi hurting. For ilriftlyfpcak-
ing, we do not hurt anotherby with-holdingfrom
him what he hath only an imj)crfetl Right to re-
ceive
j
and yet the Violation of fuch an imperfeS
Right is fufficient to conftitute a Lye. For the fime
Reafon Philojirafus's Notion of a Lye is confus'd
fairly conceal and dillemble thofe Things, which and unaccurate, when he reports"', Thatamongft
another hath no Right to know, and which I my fome of the Indians, any Student in Philofophy
felf have no Obligation to difclofe': Nay, in fuch who was found guilty of this "Vice, was rendered
Cafes, where no body elfc is injur'd in his Right, incapable of bearing any Magiilracy or Honour,
and where the Advantage or the Safety of myfelf,
or of fome other Perfon, cannot otherwife be pro-
cur'd, it lliall be allowable for me apply the com-
mon Signs in fuch a manner, as to exprefs what
is really contrary to myJudgment. For fince the
Compaft about applying Signs in fuch a certain
way, bears a regard to other Obligations, which
arc by the means of thefe Signs to be fulfilled
;
therefore when thofe Obligations ceafe, there ap
Becanfc he had by Lying cheated the common Society
of
Mankind. But, as in all Afts by which we re-
cede from Law, Error, Imprudence, andRalhnefs
are diftinguilTi'd from Malice., or wicked Dclign,
fo neither is any Man properly faid to lye, but he
who with evil Intention, and pre-conceiv'd Ma-
lice, tells another what is really different from his
Sentiments or Refolutions, either to prejudice or
to delude him. And hence, he who having been
pears no redbn why I may not make a different deceiv'd by another Man, delivers things which
Ufe of the Signs, if I injure no Man, and at the he himfelf takes to be true, reports a .)?, but is
fame time have no greater Convenience of bene-
not himfelf the Lyar. Yet a Perfon, who catch-
fitting my felf or others.
ing up Things with too hafty a Credulity, after-
"VIII. From thefe Principles and fundamental
wards difperlcth them amongft others, expofes
Rules, it is eafy to underftand both the Nature
himfelf to the Cenfure of Railinefsand Folly.
o? Truth, which Men are obliged to fpeak and
profefs ; and the Nature of a Lye, which is fo ab-
horr'd by all the good and honeft, and the impu-
tation of which every Man looks on as the fouleft
Difgrace
'
'. The former then confifts in this,
That the Signs which we make ufe of, and efpe-
cially our Words, do in a proper and convenient
manner reprefent our Thoughts to another, who
hath a Right to underftand them
>
and to whom
we are bound, either by a perfect, or an imperfeft
Obligation to difcover them: And this to the
Nay, the fpreading of another Man's Lye, or of a
Matter not certainly known, may in fome Cafes
bring an Obligation on thePubliftier to repair the
Damage occafion'd by the Report
j
efpecially
when fuch a Publication approacheth near to
that Trefpafs which the Civilians term culpa la-
ta
''\
IX. Having thus dil'covfer''d the true Source, and
the genuine Foundation ofTruth and ofLyes, we
may alTure our felves, that thofe Authors are mi-
ftaken, who aftert. That a Lye and an Untruth are
end, that he, by apprehending our Meaning, may really the fame thing, and that he deferves to be
obtain fome Benefit, or may efcape fome unde- branded with the Name of a Lyar, who fays any
ferv'd Evil, which would have foUow'd upon our thing differing from hisJudgment; and that con-
deceiving him. So that befides that LogicalTruth, fequently to ipeak otherwife than wc think, is in
'
See what our Author has faid in his Difcourfe, De Obligatlone erga Patriam, . 23.
Mr. Barbeyrac'.? NOTES on . VIIL
'
See . 10. following.
See Lib. 3. c. 1.
4.
Note 2. before-going.
Genef.
iv.
9.
in fuch a manner, as to be able hence to make a
Judgment of the Perfon's Sentiments, with whom
they fhould confer
-
: Becaufe, without fi.ch an
Obligation, and if every Perfon were aliow'd to
apply Words how he pleas'd, and to hinder others
from apprehending his Meaning, this Invention of
Signs had been altogether vain and fruitlefs. This
is the Opinion of Grotitu
S
on which we may
make this Remark, That there is not fufficient
Lib. iii. c. I . f. 1 1
.
''
Antigone, p. 234.
init. Edit. H. Sleph.
Mr. Barb. NOTES on . x.
*
Our Author (in . viii. before-going) recites the Words oi Phi/oftratus, DeVit. Apoll. Tyan. Lib. ii. c. 12. That among the
Indiam, if a Student in Philolophy was taken in a Lye, he was condemned not to be capable of any Office or Dignity, becaufe
by Lying he would deftroy the univerfal Society of all Mankind, <5 tafcim^ii^savra /J'ov avS^wTS- The Reafon which our Au-
thor makes ule of upon this Occafion is very improper to difcover dillinftly the Foulnefs of Lying ; but he had done better, if
he h.ad laid, that Phihflrntiu fpeaks nothing of it : For this is one of the Places where our Author miftakes the Senfe of the
Writer he quotes. For thefe are his Words,
"
When any Indian is dead, there is a Magillrate appointed to go to the dead Per-
" fon's Houfe, and enquire how he hath liv'd. If that Alagiftrate lye, or fuifer himfelf to be deceived for want of making an
" e.xafi: Enquiry, the Laws put him out of his Office, and render him incapable of all Offices. Becaufe he has reprefented
"
the Man's Lifeotherwile than it was. This is all Fhilojlratus fays, 1. ii. c.
30.
*
Mr. Placette in hit Treatife of Lying, c. 6. affirms,
"
Th.it that which makes a Lye evil, is the Sin committed, and not the
" Original Compaft, which is much eafier to imagine than prove ; but a New .-md Particular Compaft, which is made with them
"
to whom we Ipeak, ever}- time \ve fpeak to them. For indeed, adds he, when I fpeak to any .Man, I do two things ; I oblige
"
my felf to fpeak what I think, and require that he fliould believe me. If he to whom I fpeak believes what I fay, the Bargain
"
is rot only made but executed on the part of him to whom I fpake. If I lye on my part, I break the Treaty' I am making
" with him, and confequently I fm againll the Law of Nature, which requires, that all Agreements be faithfully executed. Whea
" he to whom I fpeak refufes to believe what I fay, and fo accepts not the Agreement I propound, he ftill appears to difcredit my
"
Proceedings, as if I defigned to make an Agreement which I would not keep. So that whether a Man believes what I lay, or
"
not, I am always obliged to fpeak Truth. But I fear that this New and Particular Compaft of Mr. Placette will be more hard
to prove than the Original Compaft, which he rejefts. For in both thefe forts of Agreements the Confent is implied only.
There ought to be fomething to fecure it by a clear Confequence. And fo it lies upon Mr. Placette to prove that this New and
Particular Compaft refults from the very Nature of the Aftion, which we always do when we fpeak to any other, (i. e.) from
the Nature of Speech, confider'd barely as fuch. I own, that the Natural Intention of Speech is to communicate our Thoughts
one to another; but it is fufficient that we do it on all occafions when any one hath right to require it. The eftablifh'd Cullom
and Good of Society require no more. Farther, as I have already faid in Note i . Men never pretend to engage to fpeak always,
and to all the World, whatever they have in their Minds, fo that they never referve to themfelves a Liberty of (hewing a
contrary Intention by their Adlions or Words, and a Mn may not reafonabiy require the like of others.
Care
Chap.
I. Obligation ixhich
attends
it.
32.?
Care
taken in ir to diftinguifh between thofe two
Obligations, one ot which regards the applying
Signs in general in fuch a due manner, that ano-
ther
may underftand our Thoughts ; and the other
engageth us to difcover by thofe Signs our real
Meaning to fuch or inch a particularPerfon ; which
two are very different, and proceed from dillinft
Principles : For in as much as \Vords borrow their
Signihcation trom the Force of Impofition, we
muft
fuppofe fome '
Agreement to have pafled be-
tween Men who fpeak the fame Language, that
in common ufe they would apply fuch Signs to ex-
prefs fuch things. But the Obligation which ties
me adually to addrefs thofe Signs to another, or
to open my Mind to him about fuch a certain Affair,
arifeth either from fome general Command of the
Law of Nature, or trom a particular Covenant, as
has been above explain'd. Hence it appears what
Judgment we fhould make of their Notion, who
deny the Nature of a Lye to confift in the Viola-
tion of a Pad, on this Principle,
"
That whatever
*'
is confticuted, not by Nature, but by the Com-
"
pad ot Men (efpecially tacit) is to be derived
"
and to be valued from the point of
Pnfity and
"
from that alone. Whereas that Men jhould under-
fiand
all that others
fay,
doth not ftem to be a thing
fo
very
profit
able and beneficial. On the contrary, it is much
for
our Literefi,
that we Jhould have a full Liberty
of
covering either with Silence or proper Coloun, Juch
Mitten as may be kept fecret withvut the Prejudice
of
other Men, and with our own Advantage. Here
thofe Points are confounded, which ought to have
been with Accuracy diftinguifh'd. For in this, that
a Man Ihould underfland the Thoughts of all o-
thers ; or that all others fliould underfland his,
there is indeed no Profit ; nor did Men, by intro-
ducing of Speech, lay any fuch mutual Obligation
on themfelves. But we have already fliewn how
far any Perfon is bound to declare himfJf to ano-
ther, and how far the other hath a Right to under-
fland him. Suppofing then an Obligation in us to
communicate our Thoughts to f-.ch or fuch a Man,
upon this the other Obligation which attended the
Introdudion of Sj eech falls in, and exerts its Force,
engaging us fo to apply our Words, that the Party
may apprehend our Meaning. And of this the Pro-
fit or Advantage is fo very great, that without it
there would be no manner ot ufe in Speech.
XL Thus much being premifed, it will not be
difficult to judge how rightly thofe feveral Cafes, in
which the Truth is not precilely fpoken, are yet,
in common Ellimation, exempted from the Chara-
ftet ot Lyes. And here firfl of all fome diftinguifh
between fpeaking what is Falje, and not fpeaking
or difiembling fome part of what is Tiue; affirm-
ing the former to be unlawful, but the latter to be
often innocent. On which point we are to know,
that although to hold our Tongue cannot properly
be term'd a Lye, efpecially if we ufed no other
Sign equivalent to Speech
;
yet our Silence
may on
(c
their Medicines to the Patient's Strength and Con-
ftitution. Since then no Perfon can be faid to have
had a Right of hearing Words under fuch a Form
as would have prov'd fatal to him, it cannot be
properly affiim'd, that there is any waving ot re-
mitting of Right in the prefent Cafe. And then
for the Speaker, (ince he was in liis part obliged to
perform this Office thro' the mediation of Speech,
either by the Law of Humanity, or by fome ftrict-
er Engagement, 'tis manifeft, that he cannot be
bound to apply his Speech in fuch a manner as
ftiall make it lofe its End and Effect. Therefore
all fuch feign'd Speeches, as either fave and ptotect
Innocence, appeafe Rage, alfwage Grief, or pro-
cure any Benefit or Convenience to otheis, which
could not have been obtain'd by dired: and open
Expreflions.are not only to be exempted from the
number of Lyes, but to be applauded as fo many
Inftances of VVifdom. Vid. Exud. i. 17, 19. iSam.
xix. 12, <7c.\\. 5,28,
29. -^S^im. xiv.
4,
ciTc. 2 Cor,
ix.
2, 3,
4.
Pliy- 1- iii- Epift. 16. Of Arria, Hor.
Od. 1. iii. II. v.
35,
3
<5. Of Hyper7finefi,a,
Spkndide me-iidaxy
& in omnc virgo
Nt. tilts avum;
Gallantly falfe, and prais'd in Endlefs FameJ
Euripid. Phcenifl'. v.
998, &c. Sadi Rofar. Peific.
c. I. ^ beneficial FaJfity
is better than a deftriiBive
Truth. Heliodor. vEthiop. 1. 1. c.
3. p. 52. Edit.
Ludg. Bat. Feigned Speeches are then good andcnm~
mendable, -when they turn to the advantage
of
the Hear-
er, and do not prejudice the Speaker
',
We have i
famous Example of this proceeding in the Story
of
^
Rahiib the Harlot,
JoJ/j.
ii. 4. And though
Gm/w obferves on this place, thut before the Go^
fpel,
a Lye uhich contributed to the prefervation of
good Men, was not efieein'd faulty ; and that therefore
this AH IS commended by the Apofiles, Hebr. xi. 31.
and fames ii. 25. as agreeable to the Times inwhich it
was performed
; yet 'tis our J^.dgmcnr, that the fame
thing may even now be lawfully done, ptovided
no civil Obligation be prejudiced by it
'^.
To
the fame Head belongs the Cafe of thofe Command-
ers, who in tJie heat of an Engagement raife the
drooping Spirits of their Men by fome falfe Infinu-
ation or Report, on the flrength of which Encou-
ragement they may force their way to Viftory and.
Safety : Or thofe, who before a Battle lefTen and
undeivalue the Number of the Enemy. Vid. Cor~
nel. Nep. Eumen. c. 3. The like Inffances are fre-
quent in allHiftories, Xenoph.Apomn. l.iv.p.4(52,
463.
Edit. Gra;c. H. Steph. If
a General vbjerving
his Men to be in a Conflernation, falfly
tells them that
there are frejh Succours ready at hand for their Re-
She knew that God by an extraordinary Judgment would deliver tlie CnnatimKs to the Ifraelites, otherwife fhe did not aft
the part of a good Citizen in hiding the Spyes of a People who came to invade their Country. See Mr. he Qkrc'i Note upon that
place.
Chap.
I. Obligation 'which attends it.
527
lief,
and by this Stratagem compofeth their Fears, and Erafjflratus, Phyfkian to King Seleucus, in making
keeps
them tn hea<t
;
under what Species
of
Aiiions him believe that his Son Ayiticchtis was in Love
Jhiiii
we reckm it ? In all appearanc-^ under thofe that with his Wife, may be admitted into this Nuni-
areju/i
and good. In Sophocles (Philotiet.v. 108,109.) ber. Vid. Lucian, De Dca Syra.
The Conduft
when
Neoptulemus asks Ulyjjes,
*
Dont you think it oi Jofeph is juftifiable on the like account, who, to
bafe
to affirm
a Riljity ? His Anfwer is, Nd, in cafe work his Brothers to a fcrious
Repentance for theic
theFalfnybeameans of Safety. Add Rontin. Stratag. Crime in felling him, and to judge how they
flood
l.i.
c.ii.
l.ii.c. 7.
Polym. 1. i. c.35. Scratag. Of affected towards his Father and towards .B^^/ja-
Leotychydes,
Maxifn. Tyrius, Dilfert. iii. p- 29, Edit, niin, held them a long time in Conflernation
and
Lugd.
The bare telling the Truth is no fuch brave and Sufpence by feigned Acciifations''. Laftly, thac
comely
thing-, unlefs it bs done to the Benefit of thofe the Fables of the Poets, by which they infiauated
ive are to infiruci. Thus a
Phyfician often deceives Truth under a taking Difguife, arc not to be con-
his
Patients, a General his Soldiers, a Mnfler of
a demn'd for criminal Falfities, every one will eafily
Ship his Crev:, and ive ceufure neither
of
them upon admif^. And thus far the Saying of Sophocles
this
account. For in fonte Cafes, a feigned Story doth will hold good,
Mengood, when the plain Truth would do them harm 3.
Though I know not whether Agefdaus's Strata-
^oxw j^fv aSfV pvjixa aw '/.i^uu Aiv.6v''-.
gem of this kind deferves Commendation
;
who,
j jujgg no Speech amifs that is of Ufe^.
when he faw his Soldiers in fome Fright and Con-
cern at their being like to be ovcr-power'd by XVlI.TheGovernoursof States may fomctimes
the oppofite Forces, wrote in his Hand the Word too very lawfully ufe a manner of Speaking not
VICTORT; and taking the Bead's Liver out ftridily true^; in as much as their Counfcls and
from the Sacrificer, prii'teJ thofe Letters upon it, Refolutions, if divulg'd, frequently come to nc-
and then fliew'd it to the Troops, as a Divine Pro- thing, or perhaps turn to the prejudice of the Com-
mife of Succefs^ For the fame Reafon Phyfici- monwealth. And therefore when bare Silence is
ans are not to be accounted Lyars, when they per- not a fufficienc Covering, they may veil their De-
fuade a nice or a froward Patient of the Sweetnefs figns with feigned Speeches, to divert the Curioliry
or Mildnefs of what they apply for his Cure. Lf^rtw. of inquifitive Men. Lying, (ays Plata
'
^, is
ufe-
Declam. 29. p. 664. D. Edit. Parif Morell. We fee ful to Mankind only in the way
of Phyfick ; andthere-
the Phyficians beguiling their Patients Appetite with
forefhould
be alloiued to publick Phyficians, but ought
harmlefs Deceits. The fame we ought to praBife to- not to be touch''d by private Patients. P; inces and
wards thofe that are in Health,
fo often as 'twould be Governours (
if
any Perfons elfe ) may be permitted
tetter for
them to be deceivd, than to be truly in- to ufe the fame Stratagem ^, either
for the Ruin
of
formed. * Yet I queftion whether the Artifice of the Enemy, the Prefervation of
the Subjelis, or any
"
Plutarch- Apophth- Liictn- p. 214. E. T. 2. Edit. Wech.
=
Gen. xlii, &c.
Jofeph-
Antiq. Jud. 1. ii. c.
3.
<^
Vid.
Piu-
tarch.'Des.M'iif^nd.Poet.
"^
EUSlra, v. 61. Vid, Gro/. I. iii. c. i. . 15.
^
De Republ. 1. iii.
p. 6ii. ^&:t.Wech.
Mr. Barb. NOTES on . xvi, xvii.
*
The Greek is, Ne^pt. Oux Si^xpo" iiv>f Siira ra -IfjJ-.^ hiytiv ; Ulyfles, Gun e' rh o-o)6>)va' y t3 ^tCJo? Cpipei.
^
The Greek is, 0''5sv yap cffxvov to t aAiifli? ^I'ytiv, ti ftii yiyvoiTO It' u-yaSiu rafiafiovTo?, b'tb xaj I'aTpo? foaeuvra
HairaTa, iia\
t;farttyhi [jpaTOTsSov, xai Ku/3pv>)TV)? vaura^ nal Jtivov a'Ssi/. a^Aa yjSi) ^tCSo? avyjatv avSpciTra?, ku) r'a/i>iBit; t^iia-i'iv-
*
The Greek is, Kai fJ-iv xai tbs icnysi 6p(xv TXq xiiv KcejxvovTwv iiiBvy-ia^ a-xuran ava^aAfiovraf . vjSe tou xa! orpo? C-yiaivovrai
toCto toioSfitv, tSrav ij xpsi'TTov, toC t' <iA>)6sc ixowai, ri itapaHfun^^vai- But our Author, who quotes this PafTage, alio oblerves,
that it may be doubted, whether we may ufe th.it as an innocent Cheat, which Era/iflratus made ufe of to cure the Prince Antio-
thus, who was in Love with his Mother-in-law Stratonice- We may find the Story in Lucian^i, Work, De Dea Syriaca, and Mr.
Fontinel/e'n Dialogues of the De.id, both Antient and Modern, Din!. 5. Our Author a little higher alfo difallows a piece of
Craft which Agefilain made ufe of to encourage his Soldiers : Without doubt, becaufe it contain'd an Affront to the Deity.
'
But thefe Words do not fignify what our Author fuppofes, following the Latin Tranflation (not excepting the Oxford Edi-
tion in
1705. of the two Tragedies of this Poet.) There is nothing that one may not ipeak innocently, if it tends to our Advan-
tage. Mr. Dncier tranflates them differently, but perhaps to no better Purpofe. He gives us the whole train of the Difcourfe,
to Ihew us that theie Words ought to have a different Senfe. At length, faith
Oreftes,
"
What evil is it to me if I pafs for Dead, if
"
I ^he^v by my Aftions that I am full of Life, and I have gain'd an immortal Name >. As for me, I am perfuadcd there can be no
"
fad Prefage, where there is fo much Proiit. " But there may be, as I believe, a better Tranflation given, more agreeable to Ore-
Jles's Thoughts, and to the Greek, thus :
"
I am perfu.aded that no Report can tend to our Dilhonour, and hurt our Reputation,
"
when fo much Profit may arife from it." This appears from what follows.
"
How many of the Sages, who were for a long time
"
taken for Dead, have returned to Life again, and were the more honoured by all the World ? I hope I /hall have the fame good
"
Luck, and after the Report of my Death is difperfed every where, I fhall of a fudden appear again to my Enemies,
Jj-V. In.
thefe laft Words the Original thus imports, t>i? St ri;? flJtifAii? aio,
iffe. From whence it appears, that ^ijpia is the fame as (pij/xj.
In fine. We may compare this Expreffion, ^fj/xa icaxJv, with a like one in the New Teftament, Happy are ye, when Men Jhall
fpeak all manner
of
evil (irSi' Toi/^ipov Jfjfia) againfi you fiiljly, Matth. v. 1 1
.
'
The Greek is, 'AvBpwToi; Si \['eCSo? xpij<n/xov, i5; Iv fljappiana srSti, SijAov, oti to yt toib'tov larpoU Sorhv, l^idraii; Ss n'y, arrrUv
Toi? apxBi?' S^ t' Tr^stiig, ti-rtf rwh a/iAoic ifocifKit \it\iiia6ai, vj ToAtfxi'mv ^
xoAiTalu svSku, Ii' (i(fe!ic!ai; rt^q nrihstag, tok St aAAotf
xaeiv
u'x a-zriou toC ronsra. We ought to obferve, that Plato treats here of I'uch Lyes only as concern a State, as appears by what
follows, and does by no means condemn fuch innocent Lyes as private Men uie one with another. This Philofopher at the End
of the foregoing Dialogue owns, that there is a profitable Lye, which is not to be hated. As for Example, when one fpea.k.s a
falfe thing to one's Enemy, as well as to thofe Friends who agree not, to hinder fome Mifchief. This is a Medicine which we ought
to ufe.^ Here Plato keeps to the Notion of a Medicine, and reprefents the Sovereign and his inferior Magiilrates as fo many Publick
Phyficians, who alone confequently may make ufe of a Lye for the Benefit of the State. But he always fuppofes, that in Mat-
ters that do not concern the Government, whoever can procure an Advantage to another by a Lye, or fome other innocent Fal-
lacy*, he is really a Phyfician to whom it belongs to adminifter that Medicine. Ti Ss S11 , t6 Iv to?? Ao'yo/; -i^iCSog, rc-re xa] t)
x?>i-
IH.OV, u/crt ft^ aiiov iivai fiiVa.;' a/J a' Tpo? ri Ta"? ToAJfAi'a?, xu) riov xaMsiJ.iv(iiv (fUmv, Zrav Sia iiavlav, vir/va: avo^av, xaxiv t< lT/x"pw(rj
TpaTTtiy. to't
a-xoTfoiiiq svexa., o( (papfiaxov. xpyisifim yiy/trat.
See alfo Lib. ii.
isf de Legiius, Lib. ii. & Lib. xi. So that Grotius
had not throughly
examined the Senfe of Plato, when he fays. That that Philofopher feems fometimes to allow, and lometimes
to deny Phyficians,
properly fo called, a Liberty to fpeak contrary to their Thoughts ; and Gronovius,
who criticizes on Grotius,
does not much mend the Matter, affirming, that Plato allows it only to Magiilrates and
Phyficians.
See what our Author fays in his Difcourfe, De Conordia Vera Politico cum Relig.
Chrijiiana, .
10.
tuay
328
Of
Speech, and the Book
IV.
way for
the advantage
of
the Communiiy : But all others
ought ftritily
to abftain fiom
this Praiiice. A famous
Inftance
we have in S'jlutnon's Judgment,
i Kings
iii. 15.
And fo Claudius m Sueto,i\ brought a Wo-
man to own her Son, whom flie firft, on probable
Arguments, dcnyM, by commanding her to mar-
ry him. Thus a Father and a Son being
arraigned
together for Murther of a Pricft, when it could
not be made out which of the two had committed
the Faft,
each refuling to accufe the other
;
Charle-
magne, as we are told, gave Sentence of Death up-
on them both ;
upon which the Father
conlef!>'d
himfclf the
Murtherer. So, it being a Law in
Spain, that in cafe a Female-flave be with Child
by her
Mailer, flie (hail be
immediately reftor'd to
Liberty
: Once it happen'd, that a Nobleman's
Maid
was difcover'd to be in this Condition
;
the
Nobleman
denied the thing, and the Proofs z\-
ledg'd
not being evident, King Alphonfo order'd
the^Chiid
to be publickly fold into Servitude; the
News of which Sentence mov'd the Father to dif-
cover
him.felf. So when Ndeus, being about to
lead abroad a Colony, was commanded
by the
Soothfayers to purge his Aimy of all polluted Per-
fons ; he pretended that he himfclf had muraer'd
a Child, and fo flood in need of Expiation ;
and
by this means perfuading others to confcfs them-
fclves
guilty, he left all thole behind him, whom
he had thus conviftcd of \m ui ity ^
'Tis a^Pro-
verb
with the
Spaniards, tell a Lye, and yoiiil get
cut the Truth. To the fame Head belongs the Dil-
fimulation and Concealment about the Sicknefsor
Death of Princes, for the prevention of Tumults.
Though we are not willing to extend
this Liber-
ty fo far as to jtiffify the politick Devices ot Nn-
nta'^. Nor will the fame Privilege hold at all in
the cafe of Promifes and Engagements''.
XVin. But farther,
Grotius^ having thus afiert-
ed,
"
That every Lye arifeth from the impairing
"
of feme Right which one Man may have to
"
iinderi^and the Mind of another
;
concludes
"
from
hence, That we cannot be charg'd with
"
this Fault
', when we dirta: a feigned Difcourfe
"
to one who is not deceiv'd by it, tho' a third
*'
Petfon fliould thence happen to entertain a wrong
"
Opinion. For 'tis to be fuppos'd, that I and he,
to
whom I addrefs'd my felf, are tranfafting fome
private
Bufinefs, which doth not at all belong to
the
Perlon who overhears us. Therefore the Man
with whom I am dealing is certainly not de-
ceiv'd with my manner of Speech, becaufe he well
apprehends my Meaning by it, jufl as if I fhould
relate a Fable, or ufe an Irony or Hyperbole to one
who knew how to put the right Conltruftion up-
on the Words. And as for the third Man, I do
not contraft the Guilt of Lying in refpeft of him,
becaufe I have no bufintfs with him, and confc-
quently he hath no Right to underfland my Senti-
ments. So that if he take up a falfe Notion, from
ExpreiTions applied to another Perfon, not to him-
felf, he is to lay all the blame on his own Curiofity
and Impertinence. But left this Pofition fhould be
abufed to ill purpofe, we are to add, as a necef-
fary Caution, that 'tis by no means allowable foe
two Pevfons to make ufe of fuch Occafions as chefe
by way of Stratagem to delude or expofe a thitd.
For altho' it be never fo true, that this third Man
hath nor a perfeft Right to know my Judgment,
}et the Law of Humanity and Charity requires
that my Speech do not occafion hiS undeiewed
Prejudice. Tiierefore we ouglit on all accounts to
make this Dillindion, whether the third Party o-
vcrhears our Difcourfe without his own Fault, or
whether out of a bufy, or a malicious Humour,
he purpofely intrudes into our Secrets. And there-
fore this AiVertion chiefly holds good againfl; thcfe
inquilitive gofTiping Knaves, who make it their
employment treacheroully to catch up what other
Perfons drop in private Company. Now when we
apprehend our felves to be watch'd by Lxh fly
Defigners, and yet are not inclin'd to be altoge-
ther (ilent, we are wont to diLppri't their bufy
Curiofity, by throwing in a fete of Talk quite
impertinent to the Artjir w.ich we were before de-
buting of ; or by agreeing to tc!l fomc Story,
which our politick Eves-aroppcr hi.ggirg as a
mighty Difcovery, may, upon his communicating ic
to others, be fufKciently laugh'd at for his Pains
;
provided neither he nor any Perfon elfc f ,rfer any
farther damage by this Contrivance. We know
very well 'cis a general Duty, not to kflen the Ho-
nour and Reputation of others, nor to ridicule and
expofe them. Yet, as we do not think oi.rfelves
guilty of any Sin, when we difcover the Miilake
of another, fuppofing it to be done wuhout ei-
ther Bitternefs or Infolence (things fo
unworthy
of Men of Senfe and Breeding) although we fhould
hereby rather diminifh, in fome refpeft, than im-
prove his Credit : So what fliould hinder us from
correfting a Fault in a Man's Morals, when it
proves troublcfome to us, even by Sport and Ri-
dicule, that we may incline him to leave cti the
Habit ? For to amend and reform others can-
not therefore be Jiidg'd unlawfil, becaufe it tends
to the Difparagement of their Worth and Excel-
lency. Thus, fince 'tis the common
Interefl of
Mankind, that each Man fliould not
undcrfland
the
Secrets of all, it is eflab:ifh'd as
'twere by the
general Confent of Nations, that
-
feal'd Letters
ihould be open'd by him only to whom they are
di reded
^
Cap. 15.
''
^limi. Vnr. Hijf. 1. viii. c.
5.
xvi. c. 1 1.
''
Add Bii(c/i's, EfT. vi.
"
Add Po/y^ii. Stratagem. 1. ii. in Efaminond. n. 6, & 12. ?olyb.
Lib. iii. c. I.
i-
13. n. I.
Mr. Bare.
NOTES en .
xvin.
Some of the Fathers of the Church, as Gro/i;/! obferves, recite here the Cenfure ivhich St. Par/l pafs'd on St. Peter,
viha
being at Jntioch, withdrew himfelf from the Company of the new converted Gentiles, becaufe he would not ofiend the Jem,
Gal. ii. II, Uc.
For fay St. ChnMome and St. Jerome, St. Peter knew very well that St. Paul did not ceniure him m
carnelt,
but did it feemingly only to comply with the Weaknefs of the Brethren prefent. But 'tis plain, that St. Paul ipoke very lenoufly,
and blames St. Peter'^ Carriage, as attended with inexcufable Hypocrify, becaufe by withdrawing trom the Gentiles, he
gave
an occafioft to believe that the Obfervation of the Ceremonies of Mofes''%
Law was abfolutely necefary to render them
acceptable
to God ; and this is contrary to the End and Defign of the Gofpel. See the Interpreters on the place.
In Verrem, 1. v. c. i . clntt
Jinem.
Mr. Barb. NoTES on
. xxr:
This Ajnilm being accufed of cruel Extortion and Oppreffion, M. Antony the Or:tor open'd h:s Breail to flicw the lud-M
the horrible Wounds he had received in the Defence of the Commonwealth.
J"^6s
CHAP.
II.
Of
an
OATH.
I. The SanElity
of
an Oath.
II. IVbat an Oath is.
III. It
rnuft
be taken only by the Name
if
God.
IV.
And according to the Religion
of
him that fiuears.
V. Of
the Intention
of
him that fwears.
VI. An Oath is an additional Bond
of
an Obligation.
VII. Of
Oaths obtained by Deceit.
VIII. of
Oaths obtained by Fear.
IX.
Oaths to perform things unlawful bind not.
X.
Nor thofe, which hinder a greater good.
XI. An Oath doth not alter the Nature
of thcfe
Anions to "which they are joined.
XII. An Oath excludes all Cavils.
XIII. But is not always
to be interpreted
flriclly.
XIV. Or without
f
me tacit Conditions and
Limitationsl
XV. An Oath is to be explained by the intention
of
the
Impffer.
XVI.
Of
an Oath made in another's/lead to oblige him.
XVII. H^w an Heir is obliged by the Gaih
of the Dead.
xvni. A Divifton
of Oaths
; as, i. For
Confirmation.
a. In bearing
fVitnefs.
5. Decijive
of a
Contrcverfy.
4.
Suppletory or Clearing.
xix. Whether every breach
of an Oath is
Perjury.
XX.
Of the ways
of difpenfmg with
Oaths.
ports of the Egyptians, That by their Laws Perfons
who had
forfworn them/elves, were adjiidgd to capital
Ptinifljment, as guilty
of the two
greateft Crimes
; in
violating that Piety which they ovId to God
; and in
deflroying Faith
from
amongfi Men, the
firongeft Pillar
of
human Society.
II. An Oath then is at religious Afleveration, by
which we either renounce
the Mercy, or imprecate
the Vengeance of Heaven,
if we (peak not the
Truth. That this is the Senfe and Purport of Oaths^
appears from thofe Forms of Words in which they
are commonly exprefs'd
; as, So help me God, God
be my Witnefs, God be my Avenger, and other equi-
v.-ilent Terms, which
amount to much the fame.
For when a Superior, who hath a right of Punifli-
ing, is appeal'd to as a Witnefs, his Vengeance is
likewife invoked in cafe of Breach of Faith
,
and
God who knows all things,
being ever a Witnefs,
is ever an Avenger. Plutarch,
Qiixft. Ro7mn.
44.
obferves '
,
that every Oath ter-miuates iri the Ctirfe
of
Perjury
;
or, tiiat is the Ground and Bottom
upon which all Swearing
depends. In the fame
place enquiring into the
Reafons why the Flamen
Dialis amongll the Romans
was not allow'd to
fwear, he delivers himfelf to this pnrpofe : IVas it
Vid. Grot, in Levit. v.
4. Numer. xxx.
3. Deut. xxiii.
23.
Lib. i. c.
77. p. 69. A. Edit. RhJom.
Mr. Bakb. NOTES on Chap.
II.
. i, n.
,.,11^
AT
'^'^'',
{
^'"'c^^^ ^u'-"'
-^.^'^^
T^"^'J?''
"5"^"'
'^'P^^'
"-^^ difference between Oaths made hy God, and fuch as ara
Sn , V w' 'J V
'"''1'
^"
'*"'' ^''''
'"
^'''^ "^^' '' ^'''"'
' "' ^^^'' ^^'^^" God-5 Oatli takes all its Force from his Word.
r,V,W,l !^ d'-
,
'
""^^f^"'''
'.^'', '^^''Jj^^rifa.yvo^^.v cpkc., row ii 5'pv ivrh xiT.^lcBa..
I am miftaken, if our Author did
Imnrnnrl
^^l
f
1''"'^^'^'
'
i"'
'"^
^r^'' P'-
!''' ^'"'
'-^
^"'^'^ ""'^'
^
Men proceeds
from the Fear the, h.ve of God. The
impropriety of the Latm Tr.inllation, confider'd with the foUowing part of the Difcourfe, was apparently the Caufe he fo un-
dentood It, otherwne he could not have quoted this Paffige, which had been nothing to his purpofe.
Uiodoru! s Words are, npiaro.- fisv t^v ^utu. tv ET/ipxBv S^varo? ;.>ip'atTcr [A/ytTT.'o,?] rh Tpi^'^ov, <J< lia ri v'tyi^a. t<,:iv-
tm ovonHfiaT"'
"i-STtaff.^BvT-av, xal rijv
ngy<V^
riv Tap'
iv6p<iT0s i,':j,v ivaTpETovTioy. See feveral other Authorities in Grotius,
J. 1. C- I 5' 3- I .
' The Greek is,
ns 5'p; (.';
xaTapav TtAtur*
rJJs fTiopxra;.
See alfo Cntlus, lib. ii. c 1
3. . i c.
hecavft
WE
proceed to examine and flate the Nature
of an Oath, which is judg'd to add great
ftrength and confirmation to our Difcourfe, and
to all our Afts which have any dependence upon
Speech : which though we might have treated of
very properly and conveniently hereafter, when we
come to explain the enforcements of Pafts and Co-
venants
;
yet we chofe to affign it this particular
Place rather than any other, becaufe the Cuftom
of Swearing is us'd for the Eftablifhment and Secu-
rity not only of Covenants, but of bare Aflertions.
(To which purpofe it may not impertinently beob-
ferved, that amongft the 'Jews no Oaths or Vows
were elleem'd obligatory, but fuch as were openly
deliver'd in
*
Words.)
An Oath the very Heathens look'd on as a thing
of fo great Force, and of fo facred Authority, that
they believ'd the Sin of Perjury to be purfued with
the fcvereft Vengeance ; fuch as extended itfclf to
the Pofterity of the Orfender,
and fuch as might be
incurr'd by the bare Thought and Inclination, with-
out the A(ft. Vid. Grot. 1. ii. c.
13. f. i. Vhilo
fud. de Sacrificiis Abel & Cain.
p. 115. E. Edit.
Genev. Our AJfertion derives its Force
from the Oath,
the Oath
from God
'
. Thus Diodorus Siculus
- ^
re-
334
Of
mi OATH.
Book
IV.
becattfe
^" Oath is n kind
of
Torture, or the only Thnfe ivho ejcape your
'Juflke,
leave to the
Vengeance
Force that may be applied to the Souls
offree SubjeCis
; of
the Gods
;
but thofe on -whom you can lay hands,
ne-
nkereas the Priefi mght to be exempt frotn all Via- ver
confign
over to Pro"jide>ice, without
punifiing them
liuce, as zuell m Mind as in Body : Or beaiufe every your
f
elves. And tor tiiis reafon we fhould
judge
Oath terminates in the Curfe
of
Perjury
;
whereas all it to be an Abfurdicy in the Civil Law^,
when,
on
Cmfuig is ominous and unlucky
; which is the Reafn the contrary, it allows a Woman to {wear that (he
that the Priefis
are forbidden by the Laws to life Im- is not with Child. This Caution will appear to
precisions towards others ? And indeed the Conduct of
have the more Weight, ii we confider that the too
the Athenian Priefi wa< co?nmended, who being or- frequent life o{ Oaths doth in many Perfons much
der'd by the People to devote Alcibiades with the ufual impair the Reverence due to them. It was an ex-
Ceremonies, refus'd ;
alledging, That his Bujinefs was cellent Leffon which Pythagoras '
gave his Scholars
j
to preftde in gi od Wifies,
not in bad. Or, was it, be- Very rarely and very hardly to be brought to an Oath,
caufe the Guilt
of
Perjury might turn to the Dan- but if
they had once fvorn, mifi invivLibly to obfrve it.
ger of
the Publick, if
an impious forfvorn PVretch Nor is //ooafei's Precept on the fame Subject to be
were to
tffer Vows and Prayers in behalf of
the State, defpis d ; Never jwear, fays he, on the account
of
and to pefcrm the
Offices of
religious IVorjhip ? Nor Money, though you could da it with the
greateft Safety
can a more grievous Punifhmenc light upon Man- and Ajfurunce
; left
you draw upon your
f
If a double
kind, than their lofing all Title to the Proteftion Imputation,
of Perjury with fome, and
of Avarice with
and Affiftance of Providence. Yet when we fay, others
f.
that God is invok'd as a Witnefs in Swearing, it But as 'tis jnfl: and right to pay the niofl: reli-
ought on no account to be hence inferr'd, that an gious Reverence to Oaths, fo is it vain Prefumption
Oath fliould belook'd on as the Teftimony of God
;
to expeft or defire that their Truth or
Fa.ihood
or as if Gcd himfelf gave Atteftaticn to the Ve- fhould be evinced by an immediate Miracle
; as if
racity of the Swearer
^
; which ftems to be the God were obliged to excrcife his judicia. Office,
Opinion of Bifhop Sanderfn
^
. But when an at the pleafure and humour of Men. And yet
Omnifcient and Omnipotent Being is call'd to be this was a Superftition which very much obtain'd
both a Witnefs or Guarantee, and likewife an of old, not only amongfl the Heathens, but in the
Avenger, we therefore prefume upon the Truth of ignorant and barbarous Ages amongft Chriftians
what is deliver'd, becaufe we cannot conceive any themfelves. Sgphocles^
^
plainly fpeaks
of the Fierj
Perfon to be arriv'd at fuch a pitch of Impiety, as Ordeal
i
lightly to ftir up the Divine Vengeance againft
K< :Tvp SiepTTEiv, aai Qsoug
opyiuixoreTv.
Prepar'd we flood to life the burning Steel,
hirnfelf And hence Perjury appears to be a mod
monftrous Sin, in as much as by it the forfworu
Wretch fliews, that he at the fame time contemns
the Divine, and yet is afraid of human Punifh-
ment ; that he is a daring Villain towards God, To tread the Flames, and by all Heaven to fwear.
and a fneaking Coward towards Men
^.
The
fcope and meaning of Oaths is likewife fuggefted by
'Tis remarkable what Pl.il. Baldaus in his Trez-
the End for which they have been introduc'd : and
tife of the Idolatry of the Indians
'
reports of the
that is, that Perfons might be the more firmly en- Malabar
s.
That
amongft them, the Pttfn who i< to
gag'd to declare the Truth, or to perform their take a Purgative Oath, hath his three
fi-fi
F/ngers
Promifes, by the juft Awe and Dread of the Divi- dipt in melting Butter, and then wrapt up in Leaves^
nicy, infinite in Knowledge, and infinite in Pow
er ; whofe Wrath they thus invite down upon their
own Heads, if they knowingly deceive : Whereas
perhaps there would not have been Force and Se
which three Days
after are uncover'd, to fee the Ejfecl.
Others are order d to fnim over a River betzueen Lol-
chis and Cranganor, full of Crocaailes : Others to
reach an Apple out
of a Pot
fluft
with Seypents, and
curity enough in the Fear of Men, whofe Strength by the ftccefs of thefe Attempts a Judgment is made
of
they might fanfy themfelves able to baffle or to their Innocence
^.
decline; or whofe Difcovery they might hope to And indeed if we would confefs the Truth, Oaths
efcape
".
For in Cafes where the Party with whom either infer or prcfuppofe the Diffidence, Unfaith-
we tranfaft, if he deceive us after his bare Word fulnefs. Ignorance, and Imporency of Markind.
or Promife, cannot poflibly lie conceal'd, nor avoid For what need would there be of fuch Engagements,
human Punifhmcnt, it feems fuperfluous to put if we could fecurely rely on the Faith and Conftan-
him to his Oath. 'Tis the Advice of Demofthenes
'*,
cy of others ; or if there were no Examples exranc
^ DeObligat. Jttrnment. PraleSl. i. f. 6.
''
Vid. Charron. de la Sagejfe, 1. iii. c. 8. n.
7.
<^
Lucian. Phahr. i. p. 731.
Edit. y^w/?. It may perhaps be an
cnfy matter to deceive Men, bm'tis imp'jjfible to lie concenVd frmGod, Plin. 1. iv. EpiiL 25. 11.4.
Edit. Cellar. Men of
toicked Inclinations take Confidence and Encouragement
from that Reflexion, qais fciet ? Who zoill ever kno'.it
'xhat '.ve do ?
''
De falfa Icgat.
p. 209. Edit. Genev-
"
Vid. 1. iii. 1.
3. D. de jurejur.
^
Ad Demonic. Hobbes De
Cive. c. 2. r.
23.
Add. Valer. Max. 1. ii. c. 10. f. 2. ext. They arc the trued Men, qui colemlo
fidem
jurant, who have no
ther Oath than to keep their Word without S\vearing. Fid. Curt. 1. vii. c. 8- n. 29. Edit. Cellar.
In Sophocles, Oedip. Colon- Oedipus thus befpeaks
Thefeus, ver. 642.
I'll not require an Oath as from the Wicked.
Tliefeus replies. Oaths could not force more than my Word fliall pay.
Epift. Enchir. c.
44.
{3" Simplic. in loc. Fid. Not. Grot, in Matth. v.
34.
e
Antigon. V. 269.
''
See Dr. Potter's Graecian Antiq. 1. ii. c. 6.
'
See the Forms of Exorcifms in Marculph. Cap. ult.
=
See likewife Bern. Faren. Defcript.
'fapon. c. 18. fef Jcdoc. Schouten- in Defcript. Regn. Siam. where he gives an account of
their judicial Proceedings. Eufeb. in St,b. Serm. xxvii. It's the Advice
of
many Men, ^that
weJhouldftrialy make good what we
fzeear : But I think it no lefs a Duty
of
Religion to confider well before we fwear. Add. Grot, in Matth- v.
34.
Mr. Bare. NoTES on
. 11.
' See Mr. Placette'i Treatife about an Oath, lib. i. c 1.
* His Words are, Z:tw'ms ftiv sfxn/vm,
xf
i1i"'l'*e5 5
'"''?
5pk(s tvtb5 fiMiysivi
of
Chap.
H-
Of
an OATH.
33?
of
Perfidioufnefs ;
or if we had ftrength enough to
compel
Pcrfons to make good what they owe ?
Lallly,
what Occaiion would the Jndge have to en-
quire the Truth ot fworn WitneHcs, unlefs he were
ignorant of it himfelt ? And from this Principle I
fliould
draw the Reafon of that Speech of the Em-
peror
Frederick in the Poet ^
'Juramenta
petis ? Regem jurare mimri
I'urfe
reor. Nude jus
O'
reverentia verba
Regis inejfe fvlet, quovis juramine major.
Doft thou defire an Oath ? it is below
A
Prince to Subjefts fuch Refpeft to (how.
The Sacred Awe that guards a Prince's Word,
Hath (Ironger Tyes than flrijtcft Oaths afford.
Not only to have Faith and Honefiy kept up invi-
olably in the World, is in the highefl Manner the
Intcreft of Princes ; but likewife bccaufe 'tis unbe-
coming their Majelly, to feem liable to the lead
fufpicion of Perfidioufnefs, Falfliood, or Deceit.
Thus we are told, that amongfl the old Pe uvuins
Oaths were not at all in ufe; but the Perfons who
were to give their Tcftimony, barely promifcd they
would confefs
the Truth to the Ynca ^
III. Since GOD alone is of
'
infinite Know-
ledge, and of infinite Power, the Abfurdity is ma-
nifeft of Swearing by any thing which we do not
look upon as Divine ; in fuch a fenfe as to invoke
it for a Witnefs of our Speech, and for an Avenger
of out Perjury. Hence as it was ufual for the Hea-
thens to fwear by the Stars, becaufe they judg'd
them to be fo many Deities ; fo for a Chriflian to
imitate them in that Praftice, would be a Mixture
of Impiety and Folly. As for thofe Forms attri-
buted to fome of the Antients, as that of Socrates ^,
by a Dog, by a Goofe (whatever Porphyry
^
pretends
to the contrary) and by the Plane-Tree, that of
Zeno, by a Caper ; and that of others, by Crambe
'',
we are to efteem them mcerly jocular. They
fwore by thefe, as Apollonius
*
faith, not as by Gods,
but to avoid Swearing by the Gods ; when by the
praftice of the generality of Men it was grown into
an ill Cuftom, to apply
Oaths as the fupplemeiital
Ornament of Speech.
But that which was moft in ufe by the Antiants,
was to fwear by thofe things
which each Perfon
held moft dear, or fet upperniioft in his Veneration
and Efteem. So Afcanitis in Virgil^
Per caput hoc jitro, per quod pater ante fulebat
;
^n. IX. V. 300,'
By this my Head ;
my Father's Oatli before.
So we every where read of Perfons fwcaring by
their own Life and Soul, and by the Life and Soul
of thofe Friends who flood firft in their Afledtions.
And the Lovers thought tlicmfelves very Religious
in fwearing by tlie Bright Eyes, the Sweet Lipi, the
Golden Trt-jjes of their Miftrefs K All which
Speeches arc by no means to be interpreted in this
fenfe ; either that thofe things were invoked as
Witnefles and Avengers of FafHiood, as Apuhius
s
amongfl others believed ; nor that they were cited.
to give Teftimonv under the Notion of belonging
to God, and expreffing fomewhat of the Divinity,
namely, his Truth, Goodnefs, and Power, and which
the Perfon thus fwearing I'creby acknowledgeth,
that he enjoys by God's Mercy ; and that he is un-
willing to lofe by God's Juftice ; as if he fiiould
fay, / fivear by my Life, that is, by God to -whom I
owe my Life ; which is the Opinion of many, and
particularly of Bifhop Sanderfn
**.
But they only
thus invok'd GOD himfelf, defiring that if they
fwore falfly, he would be pleas'd to punifh theic
Crime in thofe things efpecially, for which they
were moft nearly and tenderly concern'd
'.
Thus
it was the ordinary Cufiom of the Athenians, in
their folemn Oaths to devote themfelves and theic
Family to Deftrudion, if they deceiv'd; and on the
contrary to beg all Happinefs from the Gods on
themfelves and Friends, if they fwore truly ; as is
evident from frequent inftances in Demoflhenes
^.
And they firmly believ'd, that the Violation of
fuch Engagements would draw down the Anger of
Heaven upon the Heads of others, as well as upon
their own. Pliny
'
tells a Story of one Regulus,
^
Gunther. Ligurin. I- iii. v.
510, bfe.
^ De la Ve^a, Comment. Reg. 1. ii. c.
3.
fiteum Dcipnofoph. 1. ix. c. 2.
In fhiloflrat. 1. vi. c.
9.
r
. . ..
Perqiie fuos illam nuper jurajfe recordor,
Perque tneos ocuki ; i^ doluere mei.
e
De Deo Socmt.
^
De Jurament- QbVigat. PrakB. i
.
'
Ovid. Trill. 1. V. E].
4, 45,
46.
Per caput ipfe fuum folittis jurare, tuumjue
^od fcio, tion illi vilius
ejfe fuo.
^
Add. Antiphon. Orat. 15.
'
Lib. ii. Epift. 20. n. 5,6.
^
Lib. iii. Ttpl TO)c^?-
^
Ovid Amor. 1. iii. El. 3. 13, 14.
On her own Eyes and mine a Curfe (he laid;
And mine have fraarted for the perjur'd Maid.
Scdl.
4.
^
Vid. Ath!'
By his own Head how often would he fwear.
And yours, not lefs the Darling of his Care ?
Mr. Barb. iVOTE^ ow . m.
'
What Confufions, Abfurdities, and Contradiftions the Notions of the Heathens were ! Thefe tvvo Attributes of the Deitv,
which are the Foundation of an Oath, were fo well known to them, as to give a great Force to that ht\ of Religion. They bc-
liev'd that God was prefent in all places, and faw all things, the moft fecret Thoughts of the Heart not being excepted. This
appears, for Example, bv this Fragment of the Comedian Philemon, who takes the Air for Jupiter.
'Eyu S' Gtou 'qtv tf-yov, slfj.) xavTaxou. I'm ev'ry where as a God ought to be,
;
;
Ltfias
Orat. adverf. Diagitcn.
"
I am ready with a -^vel] afTured Mind, whenever you pleafe to require it, to fwear by the
"
Lives of thefe my Children, and of thofe which I have fincc had by a fecond Bid. And I am not yet arriv'd at fo defperate a
" degree of Mifery, nor am fo unreafonably covetous of Money, as that I fhould be willing to devote my Family to a Curfe, only
"
that I may leave them a Maintenance ; or by an unnatural Wickednefs to rob my Father of his Eflate.
And here likevvife it may be remarked by the Bye, that the Banjuns in Intiia, who fet the highcft Value and Refpeft on their
Cow s, eftecm it a moft iacred Oath to hold a Knife near the Cow, and fay,
If
what I
affirm
be
falfe,
or
if
I do uot perform my
Bargain, may the Cow he ftruck through with this Knife, Pietr. del/a Valle Itin. Part ii. Epift. i.
^
Citat. a Grolio in
Flor. Sparf. ad 1. xxxiii. D. de Jiirejur.
'
De fpecial. Icgib.
^
De re militar- 1. ii. c.
5.
Mr. Barb. iVO T'5' OK , III.
'
Hence it appears, faith our Author, that fuch Perfons were with Reafon punifhed very rigoroully, who were perjur'd, after
they had fworn by the Head, Throne, or Health of the Prince, becaufe they believed, that by fuch an Oath they expofed that
facred Perfon, upon whofe Safety the whole Kingdom depended, to Divine Vengeance. See what Herodotus fays of the Scythians,
Lib. iv. and Zofimus, Lib. v. In the Capitularies of Charles the Great, Men are forbid to fwear by the Life of the King or his
Children, Lib. iii. c. 42. See the
Digefts, lib. xii. tit. 2. De Jurejtir- &c. leg. xiii. . 6.
*
Philo'i Words arc, 'Aliov itamlv xa! r^i. 6tot( fiiccahlev dfivOvai ria /XfA;iiw xa) fiiiiSuvciv xa) aToMvtTv cftTOi^vrac Sioi H (iovo
T7 ofwciv, aAAci HCii ToTi
TpoxaAoufisvo/^ t/? To"y Sfnov, iuli6aci ycip ava$6ty5a(Hvoj tououtov, vij Tov,
>) iia, to'u, fiviliv rrpoffAaf.i^ivovTi?.
tit^xati Tij? axoHOTiii, rpaviv ojimv h' ytvcixtvov' A^a xai xpoff^a/SfTu t1?, t! /3ouAoit fii) (Xin to ccvaTaTta naJ ntpic^CTaTav i36i/5 aiViov,
aAAa jijv, y)Mov, dqipai, vfavov, rh cvfj-tavza Kiau-ov. See the Interpreters upon St. Matthew, v.
34.
and Arijhphanes''^ Rana,
vcr. 1422. where Mr. Spanhcmius quotes this Paifage of Philo, De SpeSlaciilo, for De Legibus Special.
' The Hillorian'i Words are, Jtirant autem per Deiim, yper Chriftum, (^ per Spiriturn Sanlltim, iff per Majeflatem Imperatoris,
qtiie jecundum Deum generi humano diligenda
eft
l^ colenda. Nam Imperatori, cum Augufli nomen accepit, tanquam prafenti
&' cor-
porali Deo,
fidelis
eft
praftanda devotio, ^ impendendus pervigilfamtilattis. Deo enim vel privatus, vel militmsJervit,
cumfdelitef
turn diligit, qui Deo regnal authore.
from
c
HAP.
II.
Of
an OATH.
w
from
Eufehiui's Ecclefiaftical Hiftory
^
S
that to
fwear
by the Fortune of the Emperor was account-
ed one of the Marks of abjuring Chriftianity ; which
therefore
St. Polycarp refolutely refusM to the laft.
And fo too it may be juftly queftion'd, whether we
ought
to approve of that Oath prefcrib'd by Charles
Gonz^nga.
to his new Order of Knights, in the Form
following ; If
linear by the Immortal Gad, and by the
j^ntient
Nobility zvHch I
profefs \ Hence h'kewife
it
appears,
That the Antieuts had good reafon for
punifliing
with the utmofl fcverity Perfons whohad
forfwovn
themfelves by their Prince's Life or Safety;
inafmuch
as they were tliought hereby to make him
obnoxious to the Divine Punifhment, whofe Succefs
and
Prefervation is yet fo clofely conncded to the
publick Security''. Thus we find the Scythians in
Herodotus'^, as often as their King happen'd to be
fick,
making ftrid enquiry whether any of the Sub-
jefts had fworn falfly by the Royal Throne ; and
if fuch a Perfon was difcover'd, he fufter'd Death
for his Perjury. In Zoz^hnus
*
the Roman Magi-
ftrates
declar'd they could not accept of the Propo-
fals oi Alaric, though fair and juft, becaufe they
had fworn by the Life of their Prince, that they
would never confent to a Peace with the Invader.
If
their Oath had been dheBed to God, they fay, tky
might p'ffbly
haije wav'd it in this necejjity, relying
on the Divine Mercy for the pardon
of Jo
impious a
Crime ; bin Jince
they had bound
themfelves by the Life
of
the Emperor, they thought it abflutely unlaxvful for
them to break through
fo
folemn an Engagement. In
the Capitulary of Charles the Great
\ we find a Pro-
hibition againft fwearing by the
Life of
the King,
cr
of
his Sons. As to the Civil Law, Ulpiau doth
not deny it to be an Oath, when a Man fwears by
his oim Safety'^ ; but fays, it is not valid, unlefs
it were exprefly propos'd to him in thofe particular
Terms 5. Becaufe Oaths being taken for the Be-
nefit and Security of him that requires them; there-
fore Cuflom makes it necefl'arytheyfhould beform'd
in the Words which he prcpofeth, fo that they may
fully bear his Meaning, and anfwer his Delign
*.
Whereas, if the Party who is to fwear might choofe
his ownVVords, he would have an opportunity, by
infidiousor equivocal Exirreflions, to evade the force
of his Obligation. Another Reafon for Ulpian's Af-
fertion may be, becaufe fuch Speeches and Prote-
ftations continually lofing fomcwhat of their Reve-
rence by daily Ufe, no Man can be bound to let the
trite Form of another Party (with which he often
lards his Difcourfe when he doth not think on't) pafs
for a ferious and folemn Oath. And Mr. Hbbes
'
is in the Right, when he cenfures thefe cuftoraary
Expreffions, as not
properly Oaths, but profane
Abufesof the Name of God, ariiing from an'il! Ha-
bit of being too pofitive
and vehement in Talk.
From what hath been r ffer'd it is ckar, that
Execrations, although flrictly taken, as when a
Man barely lays Curfe?;, or imprecates Mifchief
on himfclf or others, they are not Oariis
;
yet
are on all Accounts to be reckoned
part of an
Oath, as they refpeft any Aflertion or Prcmife,
which they are added to bind
''.
And this is to
be extended likewife to thofe Prayers or Wiflies...
by which a Man makes the performance of his
Oath the Condition of his obtaining fuch or fuch
a Blefling. As that of the Boy in JEUan^, So
may I crack Timefias'; Skull. Thus we find 'Julian,
to encourage his Army, conflantly fweanng (.as the
Hiflorian fpeaks") not by the Graces, but by the
Greatnefs of his commenced
Exploits ;
So may I
bring the Perfians under the Tuak
; fo
may I
relieve the
v:eak Condition
of
the Roman IForld : As Trajan is
reported fometimes to luve confirm'd his S;"ceches,
by adding. So may 1fee Dacia reduc'd ir.to theform
(f
a
Province ; So may Ilay Bridges over the Dani! be and Eu-
phrates". 'Tis remarkable in the Patanes, a Peo-
ple of Indoflan, that they ate fo extravagantly proud>
as to ufe for an Afieveran'nn, May I never come to be
a King in Dehli,
if I dent make good my Promife.
And hence too it appears what Interpretation we
ought to put on thofe Oaths which we meet with
in Scripture, when even good and pious Men
fwear by fome created Thing
.
That amongfl:
the j^etLv of the latter Ages, nothing was more com-
mon than Oaths ^,
By the Head, by the Heaven, by
the Earth, by the Temple, by the Gold
of
the Temple,
by the Altar, by the Gift upon the Alrar, is evident
from St. Matthew y.y.m. v. i6,&c. Where our Savi-
our reproves them feverely for their profane Abufes,
and impertinent Cavils in this Matter. The
vtci
fA
ToSc (TzvjTTpov in Homer
1",
Didymus thus ex-
pounds, M'^e are to knotv, fays he, that in fv:earing by
the Sceptre they fzaear by G.d himfelj, the great Gi
-
vermur and Controller
of
Kingdoms
'i.
Yet Ovid hath
given us another fort of an Explication :
Nam fibi quod nunquam taclam Erifida jurat
Per fceptrum
;
fceptrtim mn putat
cffe
Deos "^o
Who by his Sceptre fwore Brifeis free.
Ne'er took the Wood to be a Deity.
We learn from Procopitis
^, that the Pcrftans, in
the latter Times of that Nation, ufed to fwear by
Salt. And in one of the Byzantine Hiftorians, we
=
Lib. iv. c. 1 5.
'' Gramc/iJ. Hift. Gall. 1. v. <^ Vid. Grot, in Sprirf. F/or. ad leg. 23. D. de Jurcjur.
^ Melpomen. p. 1 54.
init. Edit. H. Steph. ' 1. v. in fine.
'
Lib. iii. c. 42.
s
Add. 1. iii. f. 4.
1. iv. 1. v. princ. d. t.
*'
Comp. Liv. 1. xxii. c. 38.
init.
'^
Leviath. c. \\.
^
Comp. Zitgler ^A Grot. \.\\. c. it,, i. \o.
'
V. H. I. xii. c. 9.
^
Amminn.Mnrcellin.\.y.fxv-
c.
3.
"
Add Grot, ad Gen. xxiv. 2.
"
Vid. Gen. xlii. 15. i Sam. xx\'. 26. 2 Sam- xiv. 19. 1 Kings ii.
23. 2 Kings ii.
4>
6.
i"
Iliad a, v.
234.
1 This place of Homer is thus imitated by Valerius Tlaccus,
Hanc ego, magnammi fpolium Didymaonis, hajltirn. This Spear the Spoils from ftout Didymaon woil,
^a neque jam frondes, vlrides nee proferet umbras. Which ne'er (hall bud, or form a {hady Crown,
Vt femel eft excujffa jugis 3" matre perempta. Since from its dying Mother rudely torn
Fida minifteria, y duras obit horrida pugnas ; On bloody Services it hath been horn,
Tejlor, id hoc omni duEior tibi mimineJirmo. 1. iii.
707.
(Faithful in rough Encounters
!)
here I call
Comp. Virgil. vEn. xii. v. 206. To bind niv Oath, whilfl I engage for all.
'
Ovid. De Remed. Amor.
783, 784.
Add Grot. 1. ii. c.
1
3. f n .
^
De Bdl. Perfu.
1. i. c.
3.
Mr. Barb. iV0T5 cK .iii.
^
I have recited the Paflages of Origen and TertuUian about this Matter in my Notes upon Dr. Tilktfou''s
22'' Sermon, which,
though a (hort one, contains a ftrong Confutation of fuch Chriftians who abfolutely condemn the ufe of all Oaths.
''
The Words of the Civil Law are, ^iper falutem fuam jurat, licet per Deum jiirare videtur [refpedu enim Dlvini Numinis ita
jurat) attamenfi mn ita
fpecialiter jusjurandum ei delatum ejl, jurajfe mn videtur :
6" ideo ex
integrofoknniterjurandum eji, Dieeft.
J. xii. tit. z. De Jurejiirando, &c. Leg.
33.
As the Heathens did. See Mr. Baron Spanhemius upon Arijlophancs's Flatus, v. j 29.
X X
fi'i'i
33S
Of
an
OATH, Book
IV.
find
Aliikmet theTmklJJj Emperor adjunng, by Bread
and Salt, his Vizier Bajaz^tt
",
IV. To proceed : Tlut part of the Form in Oaths,
under which God is
invoked
as a Witnefs, or as an
Avenger, is to be accommodated to the religious
Perfuafion
'
which the Swearer entertains of God:
It being vain and infignificant to compel a Man to
fwear by a God whom he doth not believe, and
therefore doth not reverence. And no one thinks
himfelf bound to the Divine Mnjefty in any other
Words, or under any other Titles, than what are
agreeable to the Doftrines of his own Religion ;
which in his Judgment is the only true way of
Worfhip. And hence likewife it is, that he who
fwears by falfe Gods, yet fuch as were by him
accounted true, Rands oblig'dj and if he deceives,
is really guilty of Peijury. Becaufe whatever his
peculiar Notions were, he certainly had fome fenfe
of the Deity before his Eyes; and therefore by wil-
fully forfwearing himfelf he violated, as far as he
was able, that Awe and Reverence which he ow'd
to Almighty God
''.
Yet when a Perfon requiring
an Oath from another, accepts it under a
^
Form
agreeable to that Worfliip which the Swearer
holds for true, and he himfelf for falfe, he can-
not in the leaR be faid hereby to approve of that
Worfliip. Thus a Chrijlian, when he admits of the
Oath of a Jeiv, doth on no account fubfcribe to
his Opinion, who denies the one only true God,
the Maker of Heaven and Earth, to be the Father
of our Lord ^efus Chrifl. Yet I doubt whether the
Example
' of Laban in this Cafe, alledg'd by Gro-
tius% from Gen.^xxi.
5:3. comes up to the Purpofe;
for the Gvd of
Abraham, and the God
of
Nahor,
and the God of
the Fathers, u'as the living and true
God^.
V. But farther, it is requifite to the Force and
Obligation of an Oath, that it be taken with deli-
berate Thought, and real Defign. And therefore
he fhall by no Means ftand bound, who not think-
ing himfelf to fwear, hath happen'd to utter Words
which imply an Oath ; or who hath barely
recited
the Form; or who, being by Virtue of fome Office
appointed to give other Perfons their Oath, tells
them how they Dull fpeak after him '.
In this
Cafe Lucians Saying will hold good, IVe are nut to
conjider his Mouth, but his Heart ^ It was vain
therefore in Cydippe to fanfy herfelf religioufly ob-
lig'd, by reading the Oath which Acontms had
wrote upon the Apple. And fo indeed Owis
hath
taught her to argue,
Qu jurat, mens
efi
; nil conjuravimus ilia.
Ilia
fidem
di^is addere
fola p/tcfl.
Confilium prudenfqtie anitni fententia
jurats
Et nifi judicii vincula nulla 'ualent.
Si tibi nil dedimus prater
fine peBwe vocem,
Verba fuis fruflra
viribus orb.i tenes.
Non ego juravi ; legi juramia verba, &c.
The Mind muft fwear; with that uv never fwore;
Yet that alone can add a binding Power.
Oaths are the Aft of VVifdom and of Tnought
;
Words give the Thread, but Judgment ties the
[Knot.
Since all we faid an empty Sound we prove,
Sound without Senfe hath loft its Force to move.
We did not take, we did but read the Form,6"c. '.
But 'twould be moft fenfelefs and abfurd, if a
Man defigr.ing to fwear, or at leaft pretending fuch
a Defign, fhould yet refufe to be ty'd by what he
fays
; and fiiould urge in Excufe, that when the
Oath was adminifter'd to him, his Intention was
barely to recite the formal Words, but not to lay
any Obligation on his Confcience ^ Not fo much
(if wc confider the immediate Reafon) becaufe Ob-
ligation is the necefl'ary Etfeft of an Oaib, and in-
feparable from it ; as becaufe otherwife the whole
ufe of Oaths, nay and the whole Method of engag-
Du(/if.
Hift. Byfatit. c. 22. ^Juvenal. Sat. xv.
37,
38.
Enemy
Chap.
II.
Of
an OATH.
345
Enemy to nil Mankind, to 'c^hom m Faith can be en-
gag d, with whom no Ccvenam can be tranfacled. For
which he is cenfured by Grotius
%
who obferves.
That alrhough a Robber hath no Title to thofe
common Rights which the Law of Nations hath
eflablifli'd between Enemies, in a fair and open
War, yet he ought to be admitted to Fellowfhip
and Communion fo far as the Law of Nature ex-
tends ;
one Precept of which is, That Covenants
be faithfully cbferv'd. And yet there are not want-
ing Arguments which might be urg'd in Tidly's
Defence
''
; as, That fince a Robber is a common
Foe to all Men, or fuch an one as without any
precedent Injury or Provocation fpoils and mur-
thers all that fall into his Hands, and confequently
makes it his very ProfefTion to break and diflurb
that Society which God hath ordain'd amongfl
Men ; therefore he ought to receive no Benefit from
any fuch common Bond (as Oaths are) invented
by Men to knit themfelves more firmly together,
after the Divine Appointment hath made them fo-
ciable Creatures. And that a way of Life, which
declares for Atheifm, ought not be admitted to
any Gain or Advantage from Religion. As, on
the other fide, the Oaths and Proteftations of fuch
Villains are little regarded or relied on by Wife
Men ^ And we find the Pander in Terence
"^
rec-
koning it amongft the neceflary Accomplifhments
of his Art, to have the knack
of
Perjury. Nic. Ma-
chiavel. Hift. Fiorent. 1. iii. When Religion and the
Fear
of God are once extinSi, the Confequence is, that
Men regard and olfeyje their Oaths only
fo far as ftuts
with their Advantage ;
ufing
them not with an intention
tf performance, but as Means and Infiruments of
deceiv-
ing with greater Eafe ; and thinking themfelves to have
won the more Praife and Glory, the lefs Trouble and
the greater Security they have met with in bringing a-
botn their
knavifi Defigns.
IX. It is farther requifite, in order to the Va-
lidity of an Oath, that the Obligation be lawful,
which it is added to confirm
'.
Therefore a Promife,
tho' fworn to, (hall be of no Force or Effeff, if the
Subjeft of it were a matter either repugnant to the
Natural or Divine Law, or to any Human Law (if
the Party lives under Civil Goveinment) inconfift-
ent with the Natural and Divine
''.
The Exam-
ple of David is moft illuftrious in this Cafe
'
; who
having in his Paffion fworn to deftroy the Houfe
and Family of Nabal, for denying him a reafonable
Kindnefs in abufive and flanderous Language, yet
being pacified by the IntercefTion of Abigail, he
thanks God, that he hath been thus hindred from
a more finful Performance of a finful Engagement \
And fo Alboinus was no doubt in the right, for
retrafting a Vow which he had made to cut off all
the Inhabitants of Pavia, upon their refufing to
fnrrender at his Summons. For 'tis abfurd to in-
voke the Divine Vengeance upon any Adion ', but
fuch as God hirofelf hath, under a fcvcre Penaitv,
forbidden. To do otherwife would be to abufe
the Awe and Reverence which wc owe to the Divine
Majefiy, in making it, as it were, a means of af-
fronting him. And the defign of introducing Oaths
amonglt Men was, that they might add Strength
to good Aftions, not that they might afford Ex-
cufe and Proteftion to bad. Dionyf Halicam. l.xi,
p. <5p4. Edit. Lipf. The Gods would have us make
ufe of
Covenants
for jujl and honejl
Difig^ns, not
for
thofe that are vicious and unrcafnable '. 'J'he very
A'coran forbids Men to fwear unlawfully
S;
a?
fuppofe. That they will never come near their
Wives : And injoins any Perfon who hath happen'd
to make fuch an Oath, to fet a Slave at liberty by
way of Expiation, before he prefumes to break ir.
And here 'tis made a Qiieftion, Whether a Man
falling amongfl Thieves, and being by them com-
pell'd to fwear that he v/ill for ever keep Silence,
and as far as in him lies, provide for their Security,
be bound to fland to his Oath } To which we a;e
inclined to anfwer in the Negative ; in cafe his Si-
lence be likely to prove the occafion of expofing
many other Perfons to Danger. For as to his own
part he might lawfully enough fuffer the Villains to
efcape with Impunity
; but not if their Safety
was to be follow'd by the Murther and Ruin of
many innocent Men. And we might apply to a
Perfon under thefe Circumflances the Saying of
Ateius Capita to Tiberius in Tacitus, Sane lentus in
fuo dolore effet ; reipublicts injurias ne largiretnr \ So
far as he was concern d himfelf, or, in regard to his
own particular Grievance, he 7night be as merciful as
he pleas'd ; but he ought not to forgive the Injury done
to the Conunonwealth. Ann. III. c. 70. In Gunther.
Ligurin. ]. \iii. ubi
fupra, Frederick m3.kQS the fol-
lowing Ordinance :
yuramenta metu mortifve dolore coaBa,
Pr^cipue, ne quis multis nocitura loquendo
Pnblicet, am in
fe
crudeliter aBa queratur,
Nullius merit! vel ponderis efje jubemus.
=
Lib. ii. c. 13. f. 15. & lib. iii. c. 19. f. z.
^ See what has been faid in I. iii. c. 6. towards the End.
<^
Adelph.
Aft.ii. Seen. i. v.
35.
''
See the Paffages collefted out of the Fathers by Grntian, C.iuf. 22. Qusft.
4. Sae.Grotius, lib. ii,
c.
13. f. 6.
"^
I Sam- x.xv.
f
See Grstius, lib. ii. c. 13. f.
7.
s5
Paul Waniefrid. de Gcft. Longobard. 1. ii. c. 27-
Add. 1. V. c. 40. in fin. ^. Syh.^^Ss.. Bohem. c. 1 8.
''
Cap. de Difputat.
Mr. Bare. NOTES on . viii, ix.
* With the Limitation which our Author makes above, lib. iii. c. 6. . 9,
and 1 1. about the End.
'Tis in this Senfe that we may allow the common Maxim to be true, That an Oath that ought not to be made, ought not
to be ivept
; for if the thing to which we oblige ourfelves be good or indifferent in itfelf, the O.-.th is valid and obligatory, ^\-he-
ther we fin or not in making it. Here are two Examples which will clear this Matter : A Man obliges himfelf by Oath never
to fwear all his Life ; neverthelefs fome time after he fwears, and by this fecond Oath obliges himfelf to reifore fomething he
has borrowed. Doubtlefs he fins by making the fecond Oath, which he ought not to have done, but yet is bound to keep it.
Another
borrows, and fwears he will reftore what he has borrowed, having yet no Defign to do it. He commits an horrible Sin
by it, but will any Man fay he is not obliged to perform his Oath ? The Maxim by which he adls is not true, but in refpeft to
fuch Oaths by which he engages himfelf to do fome wicked Aition, or forbear fome good one, wJiich he ought to do. This is
what Mr. La Placette fays, 1. ii. c. 5. of his Treatife of an Oath.
* See the Comment of Mr. Le Clerc upon this Story. Mr. Hertius obferves here, that David was not yet a King, and the
retufal of fuch a Service did not authorize him to ufe thofe Methods with the Refufer. He was not in extreme Neccffity, and if
he had, that was not Caufe fufficient to revenge himfelf in that terrible Mariner.
The Greek is, Qii'i yap ir't xafiaTg, Kai Sixai'ai? TapaAafi.SanifDai (p/Aao-iv iixalnytaii;, hit sx' airJCP"''^' ""^ dl'iKatq-
See what
Mr.
Buddeus fays about the Oath that Hamihar made his Son HannibaUa fwear when he was a Child, That he never fliould have
Peace
or Amity with the Romans, Spec. jHrifprud.
Hift.
. 68, &c. among his Selena Jur.
Nat. ^ Gent.
Oaths
544
Of
an OAT H. BOOK
IV.
Oaths took on Force, or fear of threat'ned Fate
j
And chiefly thofe forbidding to relate
Defigns of publick Harm, or to complain
Of cruel Wrongs, we here revoke, as vain.
X. But to go farther, altho' the thing promis'd
be not in itfelf unlawful, yet the Oath Ihall be in-
valid, in cafe it hinders any greater moral Good
',
or if we are by it withheld from difcharging any
Duty of Humanity or Piety
'.
And under this
Head we may rank thofe Oaths, by which Men tie
themfelves up from difcovering and communicating
to others any honeft Art, tending to the Ufe and
Benefit of Mankind
^
:
"
Unlefs I or others, who
"
are already privy to the Secret
%
can fufficiently
"
fupply the Needs of Men-in- this Rarticular; and
"
upon fuppofal that my Difcovery cannot preju-
"
dice and endaanage tine Party '(^jho required the
"
Oath from me. Such an Oath we find in Ln-
cian {T','^gopodag7\ Tom. ii.
p.
1 18. in fin. Edit.
A7iift.
The Sacred Oath
of
Silence which J have taken, fujfers
vie not to declare ichat you deftre. To which is added
the Co7nmand of
?ny dying Father, enjoining me never
to difckfe the force of
this Coinpoftion. Plin. Nat. Hifi.
1. XXV. CI. It adds fome kind
of
Strength and Autho-
rity to our Knowledge, when we refiife to communicate
it to others. The Reafon of all which is, becaufe
wc owe all our Proficiency in good and ufcful
things to Almighty God, and are each of us bound
to carry our Endeavours to the highefl: degree that
we are capable of attaining . fo that 'tis not in
our power to abridge ourfclves of this Liberty, or
by our own Aifts to abfolve our Confciences from
a Duty enjoin 'd by the Eaw of God. Oaths of
this kind were not uncommon amongft the Jews,
which are infified on at large by other Authors ^
Thus too we judge that Oath to have been inva-
lid, which Narfes in Paulas Diaconus^ requir'd of
an Old Man who had dug up a quantity of Gold,
engaging him never to acquaint any Perfon with his
good Fortune. And the Old Man was in the right,
when upon the Death of Narfes he difcover'd the
Treafurc to Til/erius the Emperor. And in this re-
fpeft the cafe of a Vow is the fame with that of
an Oath : For neither is a Vow to be look'd on as
good and valid, not only if it be unlawful, but
if it be filly and impertinent. The Spartan who
had fworn to throw himfelf headlong down the
Promontory Leucate, when he beheld the dreadful
Height, turn'd back at the Profpeft ; and being
reproach'd for his want of Refolution, wifely
anfwer'd
* , / did net confide^- that tny
firfi Vuw
food in need of
a much greater Vow to I'ind and con-
firm it ^
X. Lafily, That Oaths do not alter tlie nature
_
and fubfiiance of thcfe Promifes and Pafts to which
,
they are join'd', is fufficiently evident. Thus
an Oath about a thing abfolutely impoffible, is not
obligatory ;
though the Party is guilty of a very
heinous Sin, in thus rafhly abuling the Diviie
Name. So an Oath added to a Promife which was
before conditional, doth by no means render it ab-
folute. For the Oarh, which fuppofeth fuch a Con-
dition, doth no lefs fiand and fall with that Con-
dition, than the bare Promife would have done
without this Confirmation. Thus too an Oath, as
well as any other Promife, ceafeth and expires
upon failure of the Qi^ialicy which the Perfon held
when he fwore, and with regard to which alone the
Oath was made. For infiance, a Magifirate, when
he leaves his Office, is no longer bound by the
Oath which he took at his admiJion. And on the
other fide, the Subjects owe no farther Obedience
to a Alagiftrare, who hath either quitted his Dig-
nity, or been fairly depriv'd of it ; though no fuch
Releafe be exprefly and in formal manner granted
them. For thus much is implied in the very Na-
ture of the Aft'air
s.
So likewife it is no lefs requi-
fite to Promifes confirm'd by Oath, than to others
which are not fo confirm'd, that they be accepted
by the other Party. And he who obtains a Righc
by any Covenant, may equally releafe the perfoim-
ance of it, whether it was fworn to, or not. In
the fame manner we are to judge from the Nature
of Covenants, whether an Aft undertaken con-
trary to Oath be only unlawful, or whether it be
likewife void and inefieflual
''.
For unlefs rhe
Swearer did by his Promife divefl himfelf of his
Right, and confer it on another, though he after-
wards give the thing to a third Perfon, yet the A&
fliall be valid. If a Man, for Inftance, hath fworn
that he will leave fuch a thing in Legacy to any
Party, and afterwards fells it to another Party, the
Sale fliall not be void, though the Seller is per-
jur'dS Thus if a Perfon, who, in the Life-time
of his Parents, hath promis'd them upon Oath that
he will never marry fuch a particular Woman, fhall
neverthelefs after their Deceafe take her for his
Wife ; the Man indeed will be guilty of Perjury,
but the Marriage fhall fiand good and firm, un-
lefs the municipal Laws ordain the contrary. Far-
ther, an Oath added to a Promife or Paft (hall de-
rive its Force and Efficacy either from natural or
=
See Grot. 1. ii. c.
1
3. T.
7.
^
Vid. Matt. xxv.
27.
"^
Vid. Grot. I. ii. c.
1
3. f. 7. & not.is fuas ad Matt. xv.
4, fg'r.
SeUen. de
J.
N. & G. fecund. Hehr- I. vii. c. 2. Conftantin. I'Empereur in Babakama, c. 9. f. 20. Gratian. c. 21. Cauf. 22. Quill.
5.
Polyisn. Strateg. I. ii. c. 6. The wicked ftiufBing of the Locrians is likewife to be condemn'd, as we find it reported by Po/yb.
1. xii. c.
4.
Mr. Barb. NOTES on . xi, xii.
' The Refcript of Alexander is this. Imp. Alex. A. Fhrentino Militi. Si minor annis viginti quinque emptori pradii cavijli nul-
lum de catero te
ejfe controverfiam fafturum, idque etiam jurejurando corporaliter
prieflito jervare conjirmafii, neque perjidi^, neque
perjurii me auilorem tibi futurumfperare debuifti. The New Conftitution of Frederick is, Sacramenta puberum fponte fala fuper
contraBibus rerum fuarum non retraSandis inviolabiliter ctijlodiantur. Code 1. ii. tit. 28. Si adverfus venditionem.
+ This has afforded the Clergy a Means to gain to themfelves, under a pretence of Religion, the Eftates of Children under Age,
viz- Boys at fourteen Years, and Girls at twelve.
The Oath makes the Cheat the more Criminal ; but indeed every Aftion done without an Oath excludes alfo all vain Subtil-
ties. See what is faid upon the Paragraph following.
* For the Fraud heightens, and doth not take away the Perjury. Fraus enim ajlringit, non dijohit perjtirium, Cicero de OiEc.
1, iii. c. 3z,
Yy
Tully
34<5
Of
an OATH. Book
IV.
"Tully obferveS
' , doth not loofen Perjury, hut bind it
fironger
than before. Thus Harry Stephens, in his
preliminary
Treatife to his Apology ior Herodotus
^
is very
pleafant on the common Sophifm ot the
Tradermeii,
when they fwear they cannot aftord a
Thing
under fuch or fuch a Price, unkfs they de-
fign to lofe by it ; obferving that in this Conduft
they have always an Eye to the Proverb, A Tradef-
TTtan Ifeth
when he doth not get. I know not virhe-
ther we are to rank under this Head the Aft of the
Count de la Fcntain, who in the Battle at Rocroy
was carried in a Chair ; having bound himfelt" by
Oath, Never to
fight
againji the French en Foot, cr
on Horjeback'. Or that ot" Pope Alexander VII.
who having, at his Admiffion to the Papal Dignity,
fworn that he ivould never receive his Kinfmcn in
Rome
{di non reci-vere i fuoi parenti in Roma) by
the
Advice of the Jfuits
made ufe of this Eva-
fion ;
he receiv'd his Relations fiift at the Caflle
of
Gandolf, and then brought them with him into
the City ^ Or what Tavernier reports
'
of the
).7fcA Agents of their Eafl-
Inaian Company ;
who,
before they leave
Holland, engage themlelves by
Oath never to drive any Trade on their own pri-
vate Accounr, but to reft fatisfy'd with the Salary
allow'd them by the Publick. Yet when they once
arrive at the Indies, many of them marry, and fuf-
fer their Wives to carry on that forbidden and
clandeftine Traffick. 'Tis a barbarous Story,
which
jF.lian
'
tells of Cltomenes the Spartan, that
making Archomdes privy to his Defign on the King-
dom, he fwore to him,
If
his EnterprizjC fucceeded,
isivTu cvv Tvi
civTOv
}t^f)^^)
-xpaTTetv, that he would
do nothing without his Head. But having fecured
the Government, he cut off his Friend's Head,
and kept it in a Vefl'el of Honey, and before he
undercook any Bufinefs
turned
towards the Vcflel,
and declar'd his Refolutions. Aryandes, in Pulyx-
nus ^, treating with the Barcaans, brought their
CommilTioners to a Trench, which he had con-
triv'd for that Purpofe, lightly cover'd with Earth
and Wood, and there fwore to them, That he
would obferve the Articles of Agreement, as long
as the Earth continued. And prefently after throw-
ing down the Trap, riifh'd upon the City, when
imder no Sufpicion of Violence \ To the fame
Cafe belongs the common Inftance of two Rogues
;
one of which fteals a thing, and the other hides
it ; the former fwearing that he hath it nor, the
latter, that he did not take it ;
who are both to
be judg'd guilty of Perjury. It was a mofl: grofs
Evafion of the Turkifh Emperor Solyman,
when
having fwore to
5 Ibrahim Bajfa, that he would
never hurt him while he liv'd, he order'd him to be
kill'd in his Sleep, as if he were not then to be
reckon'd amongft the Living. On the other hand,
the Antients extol the Conftancy of
Q^
M<:iellus
Nurnidicus
'
, for refufmg to fwear to the Law pro-
pofed by Saturniuus ; though Marius the Conful,
and others, endeavoured to perfuade him to a
Compliance, by telling him. That the prefem Ne-
cejjities of
the C'jmmunwealth would
juflify
him in tak-
ing the Oath, and that he might decline the Force
of it
by this fecret Referve, That he fwore to the Lazv, pro-
vided it were a Law ; that is, if it were duly pro-
pos'd and enacted. Whereas it would be eafy for
him afterwards to (hew, that it was indeed no
Law, being made in the time oi Thunder, when, by
the Rites of their Religion, they were forbidden to
tranfaft any Bufinefs in the Aflemblies of the Peo-
ple. Yet chat good Man chofe rather to go into
Banifhmenr, than to make ufe of this fhifc ; know-
ing that when Perfons fwore to a Law, they muft,
at leaft in Pretence and Appearance, acknowledge
the manner of its Enactment to be right and true.
But we think Lycurgus to have been over felicitous,
when he order'd his Afhcs to be thrown into the
Sea, for fear, if they fh uld be brought to Sparta^
the People ftiould fanfy their Oath to expire, by
which they had bound themfelves not to rereal his
Laws, 'cill he fhould return home. For the bring-
ing back of a dead Body can with no Propriety
be look'd on as the Return of the Perfon to whom
it belongs
XIII. Yet on the other fide, the interpretation of
Oaths is not always to be extended, but fometimes
to be made in the clofcft and narrowcft Senfe, if ihe
Subjeft Matter feem to require it
'
j
as fuppofe we
fwore to the Prejudice of another, and confirm'd
in this folemn manner not Promifes, but Threat;^,
which are not in themfelves capable of conft:rring
any Right on another ' ; the common Inftance
of which Cafe is the Example of the Ifraelites in
"Judges xxi. who having fvirorn not to give their
Daughters to the Benjamites, afterwards perfuaded
them to fteal themfelves Wives, and interceded for
them with the Virgins Fathers. For 'tis one thing
to give, and another thing not to refume what hath
'
Off. iii. ubifuprn.
Add. Stoha. Serm. xxviii. of Lydia. Tacitus, Ann. xii. Rhadamiftu!, as if he would pretend to be mind-
ful of his Oath, doth not ufe his Sword or his Poifon againft his Uncle or Sifter ; but, as they lay upon the Ground, ftifles them
with a load of heavy Garments.
''
Chap. xvi.
'
Benj. Prioli Hill. Gall. 1. 2.
"
II Nepotlfm. Rom. Parti. 1. iii.
Lib. V. CIO.
f
Lib. iv. c.
47. fub fn.
df I iii- c. 29. ^e Ojfc.
*
SecCrot. 1. ii. c. 13. f. 3. n. 2. ""Hill. 4. C.41.
Mr. Barb. NO TE S on
. xiv, xv.
''
The Promife was not granted with an Oath. Solomon did not fwear, till having refufed his Mother's Petition ;
he on the con-
trary declared, that what Bnthpeba came to do, Ihould coll AJonijah his Life. The Rigour of this Prince is very hard to be ex-
cufed, being againft his Brother, whofe evil Defigns he might have prevented another way. See Mr. he Chrc upon i Kingi ii.
24.
'
The Roman Lawyers fay. That if a Man has promifed with an Oath to appear before a Judgment Seat, and is prevented by
fome lawful Reafon, he is not perjur'd. ^l jurato promifitjudiciofifti, nori videtiirfejernffcfi ex concejfa can
fa
hoc deferuerit, Digefb.
1. ii. tit. 8. 'J^ui fdtis dare cogantur, &c. Our Author here criticizeth upon the Refleftion which Homer makes upon the Oath of
HeBor, by which th.it Trojtin Hero had promifed to Dolon to give him theHorfes and Chariot o'i Achilles, ^ctl ixiopKov tuho, &c.
He/wore and u'as perjured, fays the Poet. But our Author fays, Heftor fwore only under this tacit Condition,
" If we take the
"
Horfes and Chariot, and if you return from the Battle fafe and found. So that he underftands by the Word i-ritfuot, perjur'd, an
Oath that did not take efFeil.
'
Our Author quotes this from his Memory, and docs not tell us where he had it. He has it from Aulas Gellius, where he
of whom he fpeaks was not a Roman Knight, but a captious Fellow. Moreover, the laft Edition of Mr. Gronovitis
reviewed by
the MSS. relates the Jeft after a different manner, fo that it had nothing ofFenfive for the Cenfor to punifti ; for he that m.!de tms
unfeafonablc
Jeft, laid only, that he had a good Wife, but not to his Humour ; for his Anfwer was, Habeo equidem,
inquit, itxorem,
fed non hcrcle ex animi mei fententia. Vid. Cicero de Orat. 1. ii. c. 64. is" Jiijl. Lipfius Var. Left. 1. i. c. i . In fine, a famous Law-
yer very unfitly concludes from this Paffage of A- Gelliai, That Women were fubjedl to the Reproof of the Cenlors.
See Mr. Thi-
fnajius''s Difcourfe, De Judicio feu Cenfura ?normn, c. 2. . i 2, Uc.
^
C/Vf7Vs L.itin is, i^od cnim ita juratum
eft,
tU mens coneiperet fieri
oportere, id fervandum efl ; quod aliter, id
fi
non feceris,
nullum
cfi perjurium. Non enim falfum jurare, perjurare
eft : fed
quod ex animi tuifententiafi(raris,ficut
verbis concipttur more
mfiro, id nanfacere perjurium efl.
Grotiasjmd our Author have follov/ed the ordinary Editions in the firft Words, which import,
i/t mens deferentis
conci'peret fieri oportere. But feeing the Manufcripts acknowledge the Word deferentis,
which is not there, as
Aldus Manucius tcitifies, the fequel of the Difcourfe fhews plain enough, as I think, that it is a Glofs which has been thruft mto
the Text by fome body that did not attend to C/Vcr's Reafoning. The Example which is found in the foUowmg Words will
not permit us to doubt but that he treats of him that fwears, and not of him that
impofeth the Oath. A Corfvre without doubt
intends to pay what he has promifed with an Oath, or why doth he fwear ? 'Tis tlien mens jiirantis, and not mens deferentis, in
this place.
is,
3^o
Of
an OATH.
Book IV.
is, if a Man
happens to mifunderfland the Party
who puts him to his Oath, fo as to fwear in a diffe-
rent Senfe from what the other conceives, he is not
perjur'd by Non-performance. For fince the other
Perfon had a contrary Meaning, he miift be fup-
pos'd not to have accepted of this Propofal
made
upon Oath by the Juror; and without
Acceptance
there arifeth no Obligation from a Promife.
For
it is not, as TuUy goes on, alwayi Perjury toJv:ear
what isfalfei that is, to aflert by Oach thro'
fome
Miflake what is really otherwife ;
I'Ut you are then
ferjurd,
-when you fail in making good what you
fwore, ex animi tui fententia (as the Form is in our
common PraBice) according to your real Sentiments and
Perfiiajim.
XVI. It hath been a Difpute amongft fome of our
modern
Cafuifts, whether an Oath could be taken
by
Proxy
'
; that is, whether one Man could in
the Place and in the Name of anodier take an Oath
which fhould bind the abfent Party ? On which
Point our Judgment is this: As a Perfon may in his
Abfence contraft an Obligation, fince Confent may
as well be fignify'd in VVriting, as viva voce
;
fo
there feems no Reafon why an Oath likewife niay
not be exprets'd in the fame manner. Which, after
it hath been once folemnly recited, fhall as tully
oblige, as if the Party were there prefent, and had
taken it by word of Mouth. Yet before it hath
been rehears'd in this folemn Manner, it feems al-
lowable to revoke it; fo that a Perfon who tetrads
an Atteftation which he made upon Oath at a Di-
ftance, before it be convey'd to the Place for which
it was defign'd, ought not to be look'd on as per-
jur'd. But in the common Proceedings
of Courts
in this Affair, there feems to be fomewhat not ve-
ry
proper or convenient, as that the Proftors who
read the Inftrument, ufe fuch a Pofture and Cere-
mony, as if they were to fwear in their own Name,
and that, for fear they fhould feem to be themfelves
obhged, they change the concluding Claufe of the
Oath after this manner, So help him God. Whereas
it might be fufficient barely to recite the Oath of
the abfent Party, as it lies in the Writing. How-
ever, fince it hath been with good Reafon, the re-
ceiv'd CuRom of moft Nations to render Oaths more
facred and auguft by the Ceremonies of Religion,
and by fome Sign of Devotion, to fet the Awe and
Reverence of the Divine Majefty more fenfibly
before the Eyes of the Juror, as by Sacrifice, by
approaching to the Altar, and the like Ads of Wor-
Diip ; therefore we are of Opinion, that if the Matter
be of very important Concern, the abfent Party
ought to be put to his Oath with the ufual Solem-
nity, in the place where he lives ; efpecially fince
the Cafe requires a corporal Oath\; which Name
we cannot give to an Oath exprefs d and convey'd
in the manner we before defcrib'd. For it is
much more to invoke God as a Witnefs, in the
midft of thofe facred Rites ; which, not without
fome kind of pious Horror, fignily the Divine
Prefence; than to write fo many Words on Paper,
which never bluflieth. And 'tis a material Confide-
ration, that Evidences thus given in Writing at a
diftance, are by the Lawyers themfelves term'd
'Tefiimonia caca *, Blind Ttjlimonies.
XVII. Laftly, It is a Qjie/iion ufually difcufs'd
on this Head, Whether or no, and how far an Heit
is bound by the Oaths of the Perfon to whom he
fucceeds ? In which Cafe this is certain, that if by
fuch an Oath fome other Party obtain'd a perfed
Right, which ought to be fatisfy'd either in whole
or in part out of the Goods of the deceas'd ; then
the Heir is oblig'd to fee it fulfi.'d : Since this
Burthen or Debt inhering in the PolTeflion, paffcth
to him with it. But when the Outh hath given no
one a perfed Right, and the Obligation icfelf was
founded barely in the Piety, Fidelity, or Conftancy
of the Juror, then it's plain that the Heir doth not
ftand bound, inafmuch as he doth not reprefent an-
other, as to thofe Obligations which terminate ul-
timately and folely in the Perfon deceas'd. Thus,
for Infiance, if a Man hath fworn or vow'd with
zn Oath, That he ivill
fafi
once every Week; that
he -will continue in Celibacy
five
Tears
;
or, that he
will undertake a Pilgrimage to the Huly Land
;
if he
die before he hath fulfill'd his Engagement, his Heir
(hall by no means be tied to perform it. But the
Cafe is different, if a Perfon hath been Heir ex-
prefly under fuch a Condition. So likewife, if a
Man hath fworn to give an Hundred Pounds yearly
to the Poor for
Ten Tears to come ; and dies before
the time is expir'd, his Heir fhall be free from the
Obligation ; unlefs the former Grant conferr'd on
certain Perfons a Right of dem.anding the faid Sum.
For he who makes a Promife, and doth not withal
give the Party a Right of challenging it as his Due,
intends to engage his own Word only, and not his
Eftate; and therefore upon his Deceafe the Obli-
gation (liall not in the leaft afted his Polfeffions,
or his Heir, unlefs an efpecial InJLindtion to that
Purpofe were added in the Will. Grotius ''^ob-
ferves farther, That if fuch a Promife confirmed by
Oath was in fome refpei faulty, fo
as to produce a
Right, not in regard
of
Man, but of
God only, then
the Heir [ball not be charg'd rcith the Performance.
Which we allow, if it be fuppos'd that the Party
who fwore, refolv'd either out of a Point of Honour,
or a Scruple of Confcience, to fulfil fuch a defedive
Oath, which he might, if he pleas'd, have utterly
evacuated, by alledging fome Deceit, or fome Feac
unlawfully caus'd. For otherwife the Qiieflion is
infignificant; we having above fliewnthat the
Ju-
Our Modern Law calls it, Jurare in animnm alterius. Mr. Bertius recites here a PafTage out of a Letter of William the Good
King of Sicily to Henr-^ IL King of England, written J. D. 1176,
wlierc that Prince fays, That all his Time it has been a Cuftom
in his Realm and among his Anceftors, not to fwear himfelf, but it is all one to lift up our Hand, or caufe another to lift up his
Hand for us in our prefence. ^lum unim iff idem putemus Sacramentum, quod vel mamt propria Jit, vel in anwia jubentis Iff pra-
tentis juratur. That the Antient Romans fometimes fwore after this manner,
appears by an Example which Mr. Hertius alledges
of an Oath which Anthony made to Po,npey by the AmbafTadors he fent to him. Dion. Hill. Lib. xlix. Tu. Lwius alfo tells us. That
C. Valerius Flaecus not being able to Avear himfelf, his Brother L.
Valerius Flaccus
fwore for him by the allowance of the Se-
nate and People, who efteem'd fuch an Oath good, and for the advantage of him for whom it \w^% imde. Plebejgi fcnnt, ut per-
inde rffet, acfi ipfe .^dilis jurajfet. Lib. xxxi. c. 50- ^ ult. See what the Expoiitors of the Civil and Canon Laws fay about
Oaths taken by a Proxy.
See Note 2. of the precedent Seftion, where you'll find a more natural and exafl Definition. Our Author gives us a Notion
of a particular property, rather than a general one, confider'd in oppofition to an univerfal Community of Goods.
Jiiftin. 1. ii. c. 2,
^
Vid. Digefl. I via. tit. 2. Defervitut. pradiof.
'
Polit. 1. ii. c. 5. p. 316. Ed. Parif.
Mr. Barb. iVO 7* iE,So . v, VI.
'
It is available by virtue of the Intention of the Creator, who has given Men this common Right, that they may make ufe
f it. And every one ought to thinlr, th.it it belongs to liim to do no prejudice to the Rights of any otlier, who in their turn may
one way or another pkad the privilege of the firft Occupant.
'
By what I have faid in the foregoing Notes, we may fee that there is no need of any Renunciation, either exprefs or
tacit. This may fuffice to reftify the attentive Reader in underftanding all that our Author in the following part of this Work
builds upon that falfe Principle, without which I (hould be obliged to enlarge my Notes to no purpofe every moment to correft it.
Our Author doth here by the by criticize upon an Expreihon of the Jewijh Hiftorian Jafephus,
1. i- c. 3. where he fays.
That Cain was the firft that fet bounds to Lands, "Opsj ts y?? TpSro? ?eTo,
p. 7.
in which he defcrves, fays our Author, not
to be believed more, than in what he fays in the fame place. That Cain barbaroufly ufed and infolently treated all thofe that
dwelt with him
; that he gather'd great Wealth by Rapine and Violence, and that he cherifh'd Companies of Thieves. For how-
can luch things be attributed to the eldell Son of the firft Man and firft Woman, from whence all Mankind are defcended ? See
Bceder's Diflertation,
entitled. An Exercitation upon Ft. Jefephui^i Antici- Jitd.
Lib. i. c. 2. printed in 1701. and what is fiud,
5. 10. i^c. about the Primitive Community of Goods,
we
3^8 Of
the Origin
of
Book IV.
we have already flicwn to be negative
^ '.
If,
fays hcj Men labour d in cotmnon, ana laid up all they
got in one Heap, out
of
zvhicb they -were freely to take
for their fuppojt ; 'tis impffjible but that Heats and
Qiuirrels jk uld arife from the Liequality -ivhich mujl
he cbfcrvd bet-sieeH fome Mens Getting and Spend-
ing
^
. In general (as he well remarks) the living
together, and upon the fame Stock and Maintenance,
is grievous and uneajy. iVtiich is the Reafon that rve
are never
fo
highly difpleas'd with ether Perfons, as
with our Servants and Family-Dependents, who are
continually under our Eye. But now upon the intro-
ducing
of
Property, all thefe Co?nplaints are filencd 3
,
every one grows more hduflrious
in improving his pe-
culiar Portion; and Matter and Occafion
is fupplied
for the Exercife of
Liberality and Beneficence towards
ethers. It were better therefore that Goods jhould be
made proper at to thePiffeffwn
*
,
andjhould be common
only in the Ufe. Again, To confider a thing as our
own, raifth the Pleafure we take in. enjoying it
"^
. To
gratify and
affifl
a Friend, a Gtieft,
or a Companion,
fills
us rcith
fenfible
SatiifaiTioa arid Delight ; and this
we cannot do, unlefs we have a feparate Share
of
Good
things to our felves. Befides, fince
there arefezo things
which can be mc.de uje
of
by all Men at once, when
many Perfons Jhculd happen to Jet
their Mind on the
fame
Objetl, which could not
fuffice
them together ;
they
mufl of NecefRty fall out, were not the defired
Object
al.tady
offgnd
to a particular Owner. It muft be
confcfs'd thefe Reafons did not weigh fo much with
Sir Thomas Mi.r and Campanella, as to hinder them
from fetting up aComm.nionot Goods, the tormer
in his Utopia
; the latter in his Realm
of
the Sun:
It being much mote eafy to fanfy pevfed Men, than
to find them
^
. But tarther, we may hence too
difcover the Falfity of that vulgar Saying*^, Meutn
and Tuum are the caufe of
all the Wars and Quarreh
in the World. For on the contrary the Diltinftion'
of Metim and Ttmm was rather intioduc'd to pre-
vent allContention. Hence/'too,LL.].viii.p. 214.
Ed. Wech. calls the Aletrflone 7,
the Boundary
of
Fiiendjhip and Enmity, confirm'd by Oath, a^/d ap-
proval
of
by the Gods. Of the Sacred nefs of the
Landmark, fee likewife Deut. xix. 14. Job
xxiv.
2. L. xxvii. t.ii.D.de Ter?ninomoto. Collat.kg. Mo-
fiicarnm cum Ro?. tit.
13. Paul. Sentent. i. 16. V.
22. Frontinns de re agrar. Let every one keep his own
Bounds and not dijlurb thofe of
other Men : for
therefore was the Mark-flone fet up, litem ut difcer-
neret agris, to end the Qiiarrels
of
the Field.
But that infinite Fiald of Hoitilitics and Strifes a-
rifeth only from hence
^
,
That the Avarice of
Men is ever aiming to break through thofe Bounds
of Meum atid Tuum, which have been by Law or
Covenant eftablifh'd
"
.
Vin. Though what hath been here deliver'd feems
plain and evident, yet we think it not impertinent
to examine more largely the Opinions of fome aii-
tient and fome modern Writers on this Subjed:. A-
mongft the former, Diodorus Siculus
^
reports, That
the
firfi
Earth born Men led a wild and irregular
Life,
went out in Herds to
feek
their Fjod, which
confified of
the inofl juicy Herbs, together with fuch
Fruits as the Tees JprUtaneou/ly produc'd: But not
kno'iUing how to bring their Piovi/ton t-'gether, and to
lay up a Store
for future ufe, many per
ifh'd
during the
Winter, partly through the Inclemency
of
the Air^
and partly through want
of
Sujienance; 'till by degrees
gaining Inflrutlion from Experience, they began to
retire into Caves in the cold Se.tfcn, and to referve
'
To'w'hkh idd ./IriffopbM'. Concionatr. ver.
586.
^
Juvenal S^t. !,. ver. 230.
Eft
tiUqtiid quocunqtie loco, quoatnque recejfu,
'Tis fomewhat to be Lord of fome frrnll Ground,
Ur.ius Jefe
Dominumfccijfc laccrta. In which a Lizard niay at leaft turn round.
Mr. Dryilen.
^
Lvft/ii
Ont 17. Dc Nicite bonis publicatis, chap. iv. the main Caufes
of Dijfei'.tions among SubjeHs are, that fome covet other
Mens PoJfJJions, luhilft fome again, are robb'd of
their oan.
' Lib. i.
M. Baer. notes on
. VII.
'
The Greek is, Ka)
yuf
tv ra"? uvoXa'ueiiri, xa) Iv rerj tpy'"A'>) yvofiivuv "gav, aA' anVuvi uvayxaTov lyxAiinaTa yiWffSaf ipo? TbS
*
The Greek i?, "O/a? H to cvV-v koi KOivanTv tv avfipaxixSv TUiToiv X'^AtTov, xa) (x.a^i:;a rav toihViuv' Ji^Abui
5'
at tbw
C'dvaTTO^^t^tov KOivaiviai' ffj^gSov yhp oi Tr^itqot 5ia(ftfi'iJ.svot Ik Tav iv noci , kizJ jk fiixpwy tpoOHpHovTii a:A/)^Ao;^. trt 3s SjpaTovTwv Turoii
(x-aAii^a TpoffKpBofttn oi'^,- ii/iflqa TpoaxpwfisBa Tpi; ra? Jianovia? ra; tyxuKAi'a?.
^
So Ariflotle exprelTes it, Pd nsv yap txifitAsiai S/>)p;5(xfvai, T-i iyxK-i)y.(i.'TaTtfh<; aAPl^iAaj a eroii^uHai' (xaAAoi/ Ss sxiSiusuiriv, il? zpo? iSi'oj
iKsqa TpcSpfucivTo;. This is well exprefs'd in a Law oftheCw.-V, Naturnle quippe fitiiim, ?:cgligi quod communiter fojftJetury
tttque
fe
nihil habere, qui non totum babcat, arbitretiir : deniqtie fuam quoque partem corrumpi patiatur, dum invidet aliente. Lib. x.
tit. 34. S>Hanh y
qnibtis quaria pars, {^c. leg. 2. in princip.
*
And again, OavtpSu toi'vuw ot( lii?ijiov bi^vm iitv iSlaq ra? KTy;ireii, TyjSi xp^i lo/si'v KOivij tTi 55 xa) Tpo? y|5oi>ju ap-C^irov
icov Sia0!fii TO vciii'(civ iSt.v t< aAAii fxv)v Kai to
x"!"""'^'*'!
"*' /Soi^fiiiffai (p/Aotj, xa! {voif> ), iTtpoic HiSi^bu yivirai tiJ? kt>)SwS
iiiaq Ssyif- Epicurus (to ufe Mr. Bayle'% Words in
Hift.
Diffion-) ^vould not imitate Pythagoras, who taught, that amonS
Friends Goods ought to be common. [Diog. Laert. 1. x. ^.11 .) He found it out, that fuch an Eftablilliment betray'd Diifi"
dence ; he lik'd better that things fliould remain on the fame foot, that every one might voluntarily contribute to the Wants of
others when there was a neceflity. He aflures himfelf, that this Notion comes nearer Perfedlion, than to maintain a Commu-
nity of Goods, and we can't fufficiently admire the Union of Epicurui'i Followers, and the Goodnefs by which they affifted one
another, while every one remain'd Mailer of his own Ellate. See Cicero dc finib. bomrum i^ malonan, 1. i. c. 20.
'
An univerfal Community of Goods, which might have place. among Men pcrfetlly jull and free from all Irregular Pafiions,
can't but be unjuil, chimerical, and full of Inconveniences among Men fo difpofs'd as we are. For the Agreement which is
obfervable fometimes among the Members of certain particular Communities, can't be drawn into a Confequence for an univer-
fal Society of all Nations and Pleople ; nay, not fo much as of a Village, or fome other place, which contains feveral Families of
different Conditions, and makes up a number of unequal Perfons. See Mr. Daumat''f, Civil Laws in their Natural Order, Part II.
in the Preface, \. ii. and the Difcourfe of XJlric Obrecht, Dc Coinmutiione, which is the firll of the Collcflion publifh'd in
1 704.
at
Slrasburg. To this we may add that Mr. Bruycre (in CharaEl. penult, du dcrn chap.) fays. That if Men abound \vith Goods,
and no bodv in this Cafe live by his Labour we fhall want Ncceffiries and Conveniences. If there be no Wants, there
will be no Arts, Sciences, Invention, nor Mechanick Trades. Farther, an equality ot Polfeffions and Riches would fettle all
in like Condition, banifh all Subordination, reduce Men to a ftate of ferving thcmfelves and not helping one another, render
Laws frivolous and ufelefs, introduce an univtrlal Anarchy, and bring in Violence, Injuries, Mafl'acres and Impunity. The reft
of the Charafler is pleafant to read, but too long to be inferted whole in this place. See alfo .^/V;///. Dcclam. 261.
*
^ieta vita iis qui tollunt, Meum, Tuum. Publ. Syr. Sentent. v. 620.
'
Plato'i Words are, Efiixpou /.i8ov opi'^ovTa (piAi'av, xaj ixdfav.
*
Lyf'ai'i Words are, fl(9'p(9aj Si ipSj aAAijASs tn im Tmruv wiAdj'j u si nlii tuv aA9TPi'v ^riivnistv, ot SI in riv Svm
/"'#-
Chap. IV.
pominion or Property,
a fufficient
Stock of
fucb Fruits as -were
fit
for keep-
ing : Some new Advantage or Improvement being eve-
ry
day added to Life
*
. This Hypotliefis concern-
ing the Origin of Mankind, though falfe, being
taken for granted, it follows, that Men in the be-
ginning liv'd upon the Supplies of Nature in com-
mon ;
afterwards fettling by Covenant the Pro-
perty of Houfes, and of Fruits treafur'd up for
future Service, 'till by flow Advances the Appro-
priation of Land was introduc'd. To the fame
purpofe is frequently alledg'd what
Juflin
^
relates
of
Saturn
'
, King of the Aborigines, who, he tells
us, was fo remarkable for exad Juftice, As that no
Perfon
under his Reign liv'd in a Condition
of
Slave-
ry, or held any private Pojfeffions ;
tut all things, like
one univerfal Patrimony, lay undivided, and in com-
mon to all. The Authorities of tiic Poets are like-
wife produc'd in great Numbers, where they de-
fcribe the happy State of their golden Age, Virgih
Gcorg. I. 1 2
J,
circ.
Ante Jovem nulli fubigebant arva coloni
y
Nee fignare quidem, am partiri limite campum
Fas erat : in medium qujerebant ; ipjaque tellus
Omnia liberius, nuUo pifcente, ferebat
'^
.
Before Jove's Reign none vext the peaceful Ground,
Which only Turfs and Greens for Altars found.
No Fences parted Fields ; nor Marks, nor Bounds
Diftinguifh'd Acres of litigious Grounds :
But all was common, and the fruitlul Earth
Was free to give her unexpefted Birth.
Mr.
Dryden.
TtbuU. Eleg. 3. B. I. ver.
41,
&c.
Hlo mn validus fubiit juga tempore taurus,
Non domito franos ore momordit equus
:
Non domus ulla fores habuit ; non
fixus in agris^
Qui regeret certis
finibus
arva, lapis.
No ftnrdy Ox did to the Yoke fubmit.
No broken Courfer champ'd the galling Bit :
No Door the fearlefs Cottager conccal'd,
And the wide Earth was but a common Field.
Senec. OHav. ver.
402,
&c. Aft. ii;
Tanquam
Sit
proprium cuiquam, punEio quod molilis hora
Nunc prece, nunc pretio, nunc vi, nunc forte fuprema
Permutet dominos, & cedat in altera jura.
Sic quia perpetuus nulli datur ufus, (j hares
Haredem alterius, whit unda fuperveriit undam.
Quid 'viciprofunt,aut horrea ? L. ii. Ep. 2. v. 171,
(&c.
As if the Treach'rous World had ever fliown
A
thing we might prefume to call our own !
Since in one fleeting point of Time, convey'd
By
Grant or Sale, to Force or Fate betray'd.
New Lords it may enrich, new Titles wear :
And thus, iince none are fix'd, but Heir to Heir
Succeeds, as Wave to Wave
;
in vain we learn
To lengthen out a Street, orcrouda ufelefs Barn.
We have an Epigram of Lucian, Tom. ii. p. 838.
which is alfo recited in the Anthulogia, much to the
fame purpofe : 'Tis a Farm that fpeaks
^.
Once
Achemenides I ferv'd, and now
Menippusy and to thoufands more fhall go
:
Each vain PoflefTor cheats himfelf a while.
But Fortune is the Miftrefs
of the Soil.
The fame Author hath told us as much in Profe.
Nature
',
faith he, hath made us Lords and Pro-
prietors of
nothing ; but obtaining by Law and Succef-
fion
the ufe of
things, for an uncertain Period, we pafs
for
the ohyoxpovtot Sscr'XOTtit, the temporary Ma/iers or
Pcjfejfors
of
them ; and when the appdnted Term is 0-
ver, then another receives them from our Hands, and
enjoys the fame
Name and Title. But indeed thefe
kind of Speeches refer rather to the Inftability of
Fortune and of human Pofleflions, than to the Ori-
ginal of Property ^
IX. We proceed to examine Grotius's Opinion
;
371
^ in which
we (hall
pafs over what he delivers
contrary to the
receiv'd
Doarme
of the Church, as
Efficiently refuted by
other
Hands. He tells us then,
LhztGodconjerrdon
Mankind
a Right in General to
things
of this inferior Nature,
both
immediately upon the
Creation
if the World, and
again upon the repairirv
of
It after the Flood.
This we allow in the follow-
ing Senfe, that God
impower'd
Mankind
to ufe
thele earthly Things, in a General
Manner
; that is,
v/ithout determining
whether they ought to poffefs,
either under Divifion, or in Common,
all, or only
fome things
j
but leaving this whole
Matter to the
Judgment and the Choice of Men, to fettle it ac-
cording as they fhoiild think moft convenient for
the publick Peace and Welfare.
But we ought by
no means to fuppofe, that any pofitive Communi-
on was at the beginning
inftituted by divine Ap-
pointment
i
from which Men afterwards departed
by their own Decree
; for, on tlie contrary, with
regard to Almighty
God, things were rather laid,
as a Free-Stock, to be us'd in any Service that Men
fhould apply them to. Amongll: whom, fo long
as the very
Subftances of things were not affign'd
to particular Perfons, we muft conceive this tacit
Compafl: to have prevailed.
That every Man fhould
take for his Occalions
wliatever he pleas'd, efpeci-
ally of the Fruits, and fhould confume what was in
its Nature
confumeablc.
And fuch a univerful ufe of
things fupplied, in fome fort, the room of Proper-
ty
;
and what any Perfon had thus taken for him-
felf, none could deprive him of, without Injuftice.
Now as the Simile
borrow'd from theTheatre, which
Grotius produceth, fitly enough illuftrates this Mat-
ter
"
\
fo his other Liftance of the Aborigines is
not applicable,
as
'Juftin defcribes them"*. For
the Hiftorian's
Words reprefent fome pofitive Com-
munion, quite
different from the primitive ;
as if
the whole Country
was indeed the Pofl'efTion of the
People, but not yet divided intu private Eftates;
whilft Men refted fatisfied with the Fruits produ-
ced without their AfTiftance, fuch as the vaft extent
of the Lands and Woods afforded them in great a-
bundance, their Number being as yet inconfidera-
ble
:
But that they gathered thefe Fruits into a com-
mon Store doth not feem probable. Thus far Gro-
tius ^
is in the right, that were the firft negative
Communion to continue, without difturbing the
general Peace, Men muft live with great plainnefs
and fimplicity,
contented to feed on what they
found, to dwell in Caves, and either to go naked.
As Tully, for the fame reafon, affirms, prtediorum nullam
ejfe gentem. That Ertates are not enfured to Families and Kindred,
pro Ba/5. c. 25.
in fin.
f. I . n.
4.
' ^-
P- ^'^7-
Edit. Wech. " Add
Jo.
Strauch. diflert. de Imper. Mari>, c. ,. f. 8.
Mr. Barb. NOTES on
. iv.
.
\^^
E'ctrnal, I grant but not always an Aftual and Corporal Poffeffion, properly fo call'd, as ihafl appear by what is faid
c.
6. much lefs an Antecedent Agreement, as I have fliewed
above.
r r
/
i-f n
to t2^'1
'''1 ^'/""^
u'
'''"*'' of Goods, which our Author fuppofes, is a mecr Chimera. Mankind never met together
Thefnr,(^'f?'i?^ %7
fT"'/'.'^^/^''"^^'^"''^P'^f^^
own, out of thofe Goods, which were before common.
onVafter V
"
u r"" I
>nrenf.ble degrees, one got one thing, another another; fome to day, others to morrow;
were bclineH?""''f;^r",'^''r^^'''' 'r'-" r^"
'*'" ''" ^^ ^"^'^ ''' *'^^ thorewho invaded a Country all at the fame time, or
curetWelve,. r
11
""rr^
{"'J'^,^^^P^^'
did agree fometimes to p.irt it among them for Peace-fake, and to fe-
and frrh nnl r ^T'''^
P"'^'""""
/
"^^^^ f^"
' '^^"'- Sometimes alfo feveral perfons agreed together, that one
ftould go
ana ierch
one Coall and another another, where to provide for and fettle themfelves.
^ *
^
'
*
appro-
Chap. IV-
Dominion or
Property,
appropriated
before. A Theatre is ereded by the
State
tor the common Ufe of the Subjefts: But that
in the time of die Show, this or that Perfon Ihould
obtain a particular Seat, of which others ought not
to
deprive him, is owing to fome corporal Aft, that
is, to his fitft
feizing upon it. Nay, each Perfon
373
fore he is aftually
poffefled of it. And without
fuch a Fiiion '
,
the
Dominion
would no more
belong to a Man in an
Inheritance
before aftual
Entrance, than it doth in a Donation
before Accep-
tance. And hence too,
amongft
Perfons
who live
only under the direftion of the Law of
Nature,
may,
with the confent of the Publick, acquire a Seat which is for the moftpart
unacquainted
with thefe
which he fhall hold by a perpetual Right. Thus, FtElions introduced by civil
Conltitutions,
there will
before any human Aft had pafs'd capable of in- be no admittance given to any pote/iative
PcJJefjhn
troducing
Property, every thing mufl be
conceived as oppofed to atlual; nor will the bare Right and
to
have lain free and common (in a negative Senfe) Power of acquiring Pofl'eflion obtain the Name of
to all
J
that is, not to have appertained to one ra- Pofldnon it felf
*.
ther than to another. But when Divifions were efta- XI. Many have thought fit to appeal to the Au-
blifh'd by exprefs, or PoflelTions confirm'd by ui~ thority of Scripture in this Point; whence they have
cit Covenant, then things palled out of this negative fuppos'd that it may be made evident, that there
Communion, into fettled Properties.
_ never was any fiich Communion
as we have afi'ertcd.
any /icts oj lueirs, u mi^um vn^y u j/uietiuca uumimvn, uroine uonation; jo timt De Held tt as his own proper
or a Power of
taking and
p'>Jfe[fmg ;
and confequently and entire
Pojjeffion.
The
force
ofwhich Propriety was
^
,'L r ,.
,
j^^j^^ ^^^^ ^^ ^^^^ ^^^ excluded all othersfrom the uni-
veifd P,JfejJion which he
eujofd, but likewfe from
the Right
ef
taking to the}nfehes any one particular
thing : Infomuch that even his Children could claim
no more than a Dominion in actu primo; from which
they pafs'd on to Pcffejfion,
and from Pcjfeffion to Do-
minion in aftu fecundo : Thefe Men differ from
our
Opinion in Words only, not in Senfe. Yet
in this rcfpeft they are not fufficiently accurate. no Property,
fo long as they continued in the Family
that call the Power of entring upon things, Do- of
their Father, unlefs he convey'd
foftiewhat to them
minion /'a ^S />;/?); and the Right which follows in the manner
of
a pcculium,
cr fefarate Stock:
Pofieflion,
Dominion in aBu fecundo. For the Power That they became Proprietors,
fi.ft,
by
prjjeffrng
that
of acquiring any Right, and the Right it felf now Jbare which he ajfigned them, when
difmifs'd from un-
habitually
inhering, yet withoutOperation or Exer- der his Tuition; and afterwards, upon his Death, by
cife, are different things. As 'tis quite another cafe dividing his Store among/i
themfelves
^
. They ex-
to be a Mi\Cida.n potentially, and not to ufe the Art, plain their Notion in this manner : The Form of
when the Habit of it hath been fully attained. Nor God's Grant conferred
a Right only on the primitive
is their potential Dominion very aptly illuftrated Pair, before they had Children.
Therefore either the
by the Example, they bring of Inheritances; the Property
of things was given to Adam andEixori-
Dominion
of
which, upon the Teflator's Death,
faf-
ginally,
fo that their Dtfcendents were to derive from
feth
out
of
the Habit, or Power, direEily and immedi- them all their Title to any
Pvjjfejfmn; cr
elfe the whole
ately upon the Heir, without the Formality
of
taking
foffeffion.
For, befides that to pafs out
of
a Habit,
or,
out
of
Power, is by no means the fame thing
;
there is always a Fiftion of Civil Law conceiv'd to
interpofe in the Cafe which theyalledge. 'Tis the
Rule of Nature, that in the transferring of Domi
World was, in the Perfon of Adam, bejhw'd in com-
mon on all Mankind. The latter
of thefe as it im-
plies feveral Difficulties,
fo
it is particularly repug-
nant to the Right
of Occupancy, which chains only
in things void
of
a Prjfeffor. For
if the entire Mafs
was given to all Mankind, it doth not appear, how a
nion from one to another, it (hall be requifite for particular perfon could by feiz^ing any thiy.g
to himfelf.
the former Perfon to tender what is thus convey'd,
and for the latter to accept and receive it. But in-
afmuch as the Laws have confented, that the Will
of the Teftator fhall remain uncertain and change-
able 'till his laft Breath, and fhall be accounted fe-
cret 'till after his Deceafe ; they therefore hold, as
'twere, in fufpence, the Will of the deceas'd Perfon
convert it into his diflinll Property, exclujive
of hu-
man Race in general, or,
fo as to hinder Men from
making any Pretenjions to it by virtue
of their com-
mon Right. For fuch is the Nature
of things which
lie in common, and which admit only
of undivided
Shares, that everyfingle Atom
of their
Subflance is no
lefs common, and no lefs undivided, than the whole;
importing the conveyance of Goods on his Heir, 'till fo
that
if
any private Man apply it to
himfelf alone
fuch time as the Heir fhall have fignified his Ac- he is an injurious Robber
of
the Community.
But
ceptance ; or (as fom.e may choofe to exprefs it) they
now, they who defend a primitive
Communion,
confefs
bring back the Heir's Acceptance to the Moment that the
firfl
Occupants
of
things did by that AEl ac-
in which the Teftator expired, his Will being then
quire fuch a difiinEl Right over thofe things, as exclud-
properly fix'd and fettled
; fo that from that time ed the Right
of
all others to the fame. VVhat Reply
the Goods are conceiv'd to pafs immediately to
the Heir, as deliver'd to him. This Fiftion pro-
duceth fo far the Effeft of Dominion in the Heir,
as that he may challenge the Inheritance, even be-
may be made to all this, is evident from the Afler-
tions already confirm'd '. The divine Donation con-
ferred on Man a Right of applying other Creatures
to his ufe; which Right was indifferent to poficivc
'
Vid. Strauch. de imp. mar. e- i
.
^
Comp. Z'regler. ad Grot. 1. ii. c. 2. f. 2.
Mr. Barb. NO TES on
. x, xi.
So the Civil Law fpeaks, Omms httredittis, quamvis pjleti adeatur, tamen cum tempore mortis continuatur, Digeft. L. I. tit.
\i. Dediverf.Regul.Juri!, leg. 138. See e.g.
^
2. following.
Mr. Hertius obferves here, that this permiffion which was given to Adam, and renewed to Noah, does make no mention of
any thing but living
Creatures, as I have already obferved above, . 4.
Note 3. out of Mr. Lock, of whom it appears from other
places, that Mr. Hertiui had feen the Treatife of Civil Government in the French
Tranllation which w?3 printed in 1 691
Commu-
374
Of
the Origin
of
Book
IV.
Communion,
or to Property ; being of neceffity to
be turn'd
into one of thefe, before it could take any
Etfeft with relation to other Men. And therefore
when others add further, T'hat the common or pub-
lick Dominion of
Mankind over things -was given by
GocJ, under Condition, that they Jhu'd
parcel it cut,
and confiitute
it private
;
for
which reafon, it neither
can, nor ought to be conceived without a refpeEl and ten-
dency towards private Dominion, fo
to be eflablijhed
as
was agreeable to a rational and a facial Nature :
This
we may without any inconvenience interpret on our
fide. That is, God by his firft Grant plac'd things
in a negative
Communion : But fince that was una-
ble to procure the fafety and peace of Society, when
human Race was
multiplied, and Life began, by
the Arts of Induftry, to be polifh'd and improv'd.
Men eafily
apprehended that 'twas the divine Piea-
fure they fliould
introduce diftinft Properties. In
order to the aftual Settlement of which, it was re-
quifite that forae
Tranfaftions and Agreements of
Men fhould precede. For that a thing fliould be
appointed by the Will of God, and yet fliould not
be introduced but by fome antecedent Compaft of
Men, ought not to be look'd on as an inconfiften-
cy: As it is certainly none, that God would have
Mankind propagated by Marriage, not by uncer-
tain Lufti and yet Marriage is not aftually con-
traded between
particular Perfons without fome
Covenant paffing before. Farther, fince
pofitive
Communion and Property both imply a relation to
other Men, it can with no manner of accuracy be
faid. That all created things were proper to Adatni
but only thus, That he held the Dominion of all
things, not formally, but permiffively , inafmuch as
there was then no Right of any Perfon elfe to in-
terfere with his, and to hinder him from converting
every thing to his own Ufe, had there been occa-
fion. When God was pleafed to give him a dear
Partner and Companion, they agreed to hold this
indefinite Right over things without dividing it:
as being united to each other in the ftriifteft Band of
Society : For which Reafon many Nations at this
Day obferve a Communion of Goods between the
Husband and the Wife. Nor was there any need of
feparate Properties, folong as .r^^rtwj's Children, be-
ing yet in their Minority, were to be maintain'd by
their Father, and made but one Houfe. For though
in the ufe of things, they were at that time obliged
to conform to their Father's Pleafure, yet this pro-
ceeded not from his Dominion (ftriftly fpeaking)
over the "Things, but from his paternal Power and
Authority over the Perfons. Therefore the Property
of things came then to be diftind, when by Con-
fent of the Father the Sons fell into feparate Fami-
lies; which Separation was undoubtedly owing to
the Emulation between Brothers; and to another
good Reafon, that everyone's own Induftry might
be his own Advantage;
as the Idlenefs of others
might be a Punifiiment only to th.emfelvts. Nor
mult we believe that the whole World was pre-
fently fliar'd out amongft that fmall Number of
Perfons; or that all things were turn'd into P'O-
ftrty by one Aft, and at one time. But it was fuf-
ficient at firft to fix a Property in thofe things,
wiiich either afibrd an immediate ufe, not capable
of being divided amongft many ; as Cloaths, Cot-
tages, and Stores of Provifion already gather'd
by
particular Men ; or which require Indultry and Im-
provement to make them fit tor Service; as Houf-
hold Goods, and Inftruments, Cattle and Fields
-.
By degrees, what remain'd was brought under the
fame Condition
; according as either the Inclina-
tion, or the Number of Men direfted and advifed.
Thus the Pafturage continued a great while in its
firft and common State
; till upon the abundant In-
creafe of Cattle, Qiiarrels ariling, the Divifion of
this likewife was made neceflary to Peace and
Concord. As for that part of the Argument, That
tiie Right
of
Occupancy cannot be admitted, where
Pof-
feffion
belongs to a general Body ; this will hold good
againft thofe who pretend any pofitive Communion
to have been the primitive State of Things ; in
which indeed no private Perfon can take any thing
to himfelf, exclufive of the whole Society. But
the primitive Condition in which we have plac'd
things, is equahy diftant from pofitive Communion,
and from Propriety in the ftrift fenfe of the Word
:
And we afl'ert, that before Occupancy can pro-
duce Dominion, it is neceifary that fome Compaft:
(a tacit one at leaft) fliould have been firft fettled
to that Effeft.
XII. Others form their Scripture Account of the
Origin of Dominion in this manner: That God gave
our
firft
Parents that conumn Dominion which he de~
fignd for all Men in general, to be held undivided
i
inafmuch as the primitive Pair reprefented the Perfon
of
all human Race: In which
fenfe
it may
fi
ill rightly
enough be faid. That the Dominion
of
the World, or
of
the things in the World, as they are capable
of pajfing
into Property, belongs to Mankind. But this cotnmon
Dominion doth not exclude private
; fince
we neither
can, nor ought to conceive it without a refpeEl and ten--
dency to private Dominion,
fo to be conftituted as
fhould be agreeable to a rational and a fecial Nature,
But in Adam the latter
of thefe Dominions met ia
ConjunEliun with the former, excluding his Children
without any previous
Cejfion or Surrendry
^.
Now,
as to this Account, we will make no Qiiarrel about
words; that is, we allow the Name ot cofmnon Do-
minion to what we ourfelves have rather chofe to
call a Right of ufing the Creatures, inherent ia
Men by virtue of the Divine Concefllon
;
provid-
ed this common Dominion, confider'd by itfelf, be
fuppos'd to obtain no Efteft between Man and Man.
On which Point we have before affirm'd, that Men
might havereftedfatisfy'd with that Right ofufing
things as they lay in common ; and that 'twas not
neceflary feparate Dominions fliould immediately
be introduc'd, fo long as Men were yet few in num-
ber, and foUow'd a (imple unimprov'd way of liv-
ing; but when their Race was confiderably multi-
plied, and when Induftry had advanc'd the Conveni-
ences of Li^e, then the neceflary Regard to the Pre-
fervation of Society recommended the Diftinftion
of Properties; yet fo as that things did not pafs all
at once into this Condition, but fucceflively, accord-
a
Vid. Bacler. ad Grot. d. I.
Mr. Barb. NOTES en .
xi.
'
It appears from the Sacred Hiftory, that in Abraham''^ Time Men went from one Place to another with their Families, Ser-
vants, and Flocks, which were their Riches. We alio fee that Patriarch followed that Cuftom in the Land, wherein he was %
Stranger. So that at that time great part of that Country was common, .and when there was not room enough in one place to feed
die Flocks of divers perfons, they parted by common Agreement, as Abraham and Lot did. 'Tis alfo obferv'd, that the moft antient
Inhabitants of Greece lead fuch a wandering Life, about which confult the Hiftorical xplication of the Fable of Cera by Mr. Le Clerc
in the Bib/ietbu- IJniverJal. Tom. 6. p. 104, loj.
Chap. IV*
Dominion or
Property.
ing as the
occafional Methods of Peace and Agree-
ment
feem'd to demand. But that Adam held a
private Dominion over all things, betore iiis Sons
had
left him, to fet up Families of their own, is
a very
negligent Affertion.
For firft, private Dominion always takes its Rife
from
fome human Aci ; therelore Adatn could not
have
fuch a Dominion over thole things, which he
was fo far from having taken PofTeflTion ot^ that they
did
not fo much as fall under his Knowledge.
That Place of the Civil Law
'
, L. iii. .
i. D. De
adqiiir. pojfefs.
*
is very unritly applied to the pre-
fent Bulinefsi as if Adam, by fetting his Feet on
one part of the Earth, fhould be fuppos'd to have
taken PofleiTion of the whole World. If any one
perlifts in giving the Name of Property to that
Right of ufing things which Men receiv'd by the
Grant of their Creator, then we might admit what
thefe Authors lay down, That Property was the
Caufe of
Occupancy and Diviftm ; or that it was
therefore lawful lor Men to challenge things to
themfelves by laying hands upon them, and by
parting them into feparate Shares, becaufe God
had given them a general Commiffion to apply o-
ther Creatures to their own Ufe. But if we take
the Word Property in its flrifl: and general Senfe, as
it denotes the Exclufion of all others from a par-
ticular thing already aflign'd to one
; then 'tis al-
together true, chat Divifim and Occupancy are the
Caules oi Pioperty. Farther, ^(i?a?'> Children, whilft
they yet continued part of their Father's Family,
were bound indeed to obey his Pleafure in regard
to their ufe of things
;
yet this, as was before ob-
ferv'd, proceeded not from the Force of any pri-
vate Dominion in Adam, but from the Force of his
paternal Power. For whilft they were young and
helplels, he was oblig'd to maintain them. And
when they were capable of doing fome Service,
ftill the fame paternal Authority required both that
in ufing the common Store they fhould be guided
by their Father's Direaions, left they fhould in-
cur any Mifchief by Intemperance
; and likewife
that fuch things as they had either gather'd from
a fpontaneoiis Growth, or had produc'd by their
own Induftry, they fhould deliver into the Hands
of their Father, to be given out as he fhould think
fit
:
And he, fo long as he enjoy'd this Right,
was bound to provide NecelTaries for his Children,
even after they were arriv'd at Maturity, as Time
and Occafion fhould require. And hence, if any
one of his Sons fhould, for inftance, contrary to
his Prohibition have privately feafted with too
much Greedinefs on fome particular Fruit, the
Youth had been by no means guilty of Theft, but
of Difcbedience to his Father's Command. Or, if
Adum
had order'd one that was grown up to ga-
ther Provifion for the Suftenance of a young Bro-
ther, and the Party thus employ'd had either
devour'd
it himfelf, or laid it up fecretly for his
future Ufe, he deferv'd Correftion, not for Theft,
but for violating the Charge which his Father laid
upon him. During this Period therefore, neither
Adam nor his Children had any private Dominion
:
' Vid. 1. xli. tit. 2. D. De acqtiirend. vel admittend.
pojfeff.
579
The Right of
primitive
Communion
was (ufEcient
tor his Turn
;
and as lor th.m,
they in the Exercife
ot the fame Right
depended
on his
Care and Gui-
dance. So that Adam'%
private
Dominion
then be-
gan, when he difmilled his
Sons
from under his
Tuition, and gave them
leave to ereft
feparate
Families tor thtmfelves.
XIII. Let us confidcr
too the Arguments
of thofe
who maintain that this primitive
Communion
was
impofTible
^ They fay. That fuch a Cojnmunion
neither could have been, nor ought to have been, in the
State
of
Innocence
; becaufe as every Order and Me-
thod is conformable to right
Renfon
; fo
the
mofi
comely
Order
ofpcffeffing thofe things, the Dominion
of
iihich
Cod had granted to Mankind, agreed in an efpecial
manner to that State, in which the Virtue
of
ab/iaining
from what was another's
deferv'd to bear an hmottrable
Name. Whence the Decalogue, as it
eflabJijheth the
Duty
of forbearing the
Gooods
of
others,
fo it fecures
every one in the Enjoyment
of
a certain and feparate
Pojfeffion. To this we anfwer,
Firji, That we can have no fuch clear Evidence
what kind of Life (with refpeft to thefe external
things) Men would have led, had they continued
in their lirft finlefs Condition
; and confequently
whether the Community, or the Propriety, of things
would have been moft fuitablc to chat State.
But farther , we may venture to make it a Qiie-
ftion, whether it be not a higher Degree,
a greater
Pertedion of Virtue to enjoy quietly a common
Provifion, and to defire no particular Advantage
above the reft who have the fame Title to it, than
to abftain from the diftinft Portion of others ?
Laftly, Whatever we are to fay as to the Eter-
nity of the Law of Nature, thus much is certain
;
That there's no NecefTity every Objeft of that
Law fhould have always exifted '
, many of them
proceeding, in the courfe of Time, from the A-
greements and Iiiftitution of Men : Thus the Law
againft Murther had no Objefl:, whilft Adam was
the only Perfon in the World ; nor the Law againft
Adultery, whilft none of his Sons were arriv'd to
Man's Eftate
; nor the Law againft Theft, be-
fore the Divifion of Things ; nor the Law againft
bearing Falfe-witnefs, before the judicial Procefles
were introduc'd
; nor the Law againft coveting
the Houfe, the Man-fervant, or Maid-fervant, of
others, whilft they lodg'd in Caves, and e're Ser-
vitude was eftablifh'd
; nor laftly, the Law of ho-
nouring Parents, before Eve was a Motlier
'^
.
They proceed to tell us. That neither was
fuch a
Community
poffible
in the State
of Men after the Fall
:
Firft, Eecauje we can't
fo 7mich as form any Nation
of
it in our Mind : For Crot'msfo deferibes its Laws and
Rules, as that every Perfon might immediately feiz,e
for
his Ufe what he pleas'd, and might conftime any
thing that was confar.able. But fuch an Exercife
of
the general Right ferv'd then
infiead of
Property : for
what any one had thus
feiz,ed, none elfe could take from
him without hjuiy.
T'herefore this Notion eftablijlj-
eth a Pnferty in Co77imunity, and confequently unplies
a ContradiElion
; the only End and
EffeEl of
Property
being this. That one
Perfn Jhould not rob and plunder
Nid. Boeder, uhifupra.
'
See above, 1. ii. c. 3. f. 22.
Mr. Bare. NOTES on
. xn, xm.
This Law will be quoted, c. ix.
f
7. n. 7. following.
See 1.
11
c.
3. aforegoing
. 22, 24. and the Author's Preface of his Abridgment of the Dutiei of a Man and Citizen,
1, 9.
m the Frtnch Tranflation printed at Amjicrdam in
1707.
another.
376
Of
the Origin
of
Book
IV.
another. But here they vainly pretend a Difficulty
where there is none : For antecedently to any hu-
man Ait, and to the ufe of any thing in the World,
when the bare Cafe is thus, That each thing be-
longs no more to one Man than to another, and
confequently belongs alike to neither ; the primitive
Communion bears a different Afpeft from what it
hath, after Men begin to lay hands upon the ge-
neral Store, and to imploy it in their Service ;
Since in the latter Cafe, by virtue of a previous
Covenant, whatever any Man hath feized for his
private Ufe, becomes his Property. Otherwife
Men mufl: altogether abflain from the Ufe of
things. Hence in this qualified Communion, as we
may call it, the Subftances of things belong to
none, but their Fruits become matter of Property,
when gather'd. This Notion of Community, tem-
per'd with fuch a degree of Property, may, we
think, be eafily apprehended by Perfons of no ve-
ry nice or philofophical Heads. To give a plain
Inftance : The Acorns were his that took the pains
of getting them, but the Oak had no particular
Owner. Thus much being laid down, the way is
the better clear'd towards anfwering what rhey
farther cbjedt. They pretend, that fuch a Commii-
tiion could not
foffil^ly lafl one Moment
of
Time, that it
ixias contrary to the human or rational Nature, favage,
and unfciable ; and confequently is capable
of afford-
ing no other Ufe, than that from it, as a feign d Hypo-
the/is, may be jhe~m the Necejfity
of
a diflinl or pri-
vate Dominion in a civil State.
Ic's true, this Communion confider'd precifely in
itfelf, and before any Application and Exercife of
it, could not fubfift, unlefs Men could have always
walk'd naked, and liv'd without eating. Yet why
it fliould not fubfift, when thus qualified with a
mixture of Property, there was nothing to hinder
whilft the number of Men was yet few, and their
Life plain and unrefined. It is certain however,
that the more Mankind was multiplied, and the
more Life was improv'd, the greater Necefiity there
was of appropriating more things than before.
Hence thole People lead but a rude and barbarous
Life, who make the neareft Approach to the pri-
mitive Communion ; thofe, fuppofe, who live on
Herbs, Roots, Fruits of chance growth, and what
they take in hunting and in fifhing, and who claim
no other Eftate and Wealth than a Cave with its
wretched Furniture. Farther, when we aflert that
all things were by Nature negatively common, we
don't mean that the Law of Nature commands Men
perpetually to preferve fuch a State; but that things,
if confider'd antecedently to any ad of Men, were
fo difpofed, as that no one Perfon ihould claim them
rather than another. On the other fide, in affirm-
ing that Men left this Communion upon the advice
and diredion of Reafon, we pretend not that it was
neceflary all things fliould be appropriated in the
fame Moment ; but according as the Temper or
Condition of Men, the Nature of the things them-
felves, and the difference of Place required ; and as
was judg'd moft convenient for the cutting oft" all
manner of Quarrel or Diflenfion.
And therefore,
'
^n. iv. ver.
58.
Mr, Barb. NOTES on .
xiii.
*
Legifera Cereri'] Leges enim ipfa dicitur invenijfe. Num
y facra iffius
fhefmophoria, i. e. kgum latio, vocantur. Sed hot
ideo fingitur, quia ante inventum frumentum a Cerere pnjfun homines
fine lege vagabantur, qu<t feritas interrupta ej}, invento ufit
frumentoriim,
poftquam ex agronim difcretione natafunt jura. Servius ad j^neiJ. iv. ver. 58. See alfo Caf/machru's Hymn- in Cerer.
ver.
19.
and Baron Spanhemius's Comment on it, as alfo the hiftorical Explication of tlie fable of Cerej by Mr. Le Clerc in
Tom. vi. of his Bibliothec. Univerfal. p. io6.
towards
neither are we, who are utterly bahifh'd
the pri-
mitive Communion, nor thofe barbarous
Nations
which ftill retain many Foot-ftcps of it, guilty in
this refpeft of a Breach of the Law of
Nature.
Thus too, what they add hath little
Difficulty t
After the Fall, fay they, M<n could not live without
Law, and yet maintain a fecial Life ; therefore, neither
without the diftinflion of
Properties
; fince the Commu-
nion
of
things is inconjiflent with Law, which is wont t
affign
and difiribute particular
Poffeffjons. But fince all
Laws do not prefuppofe feparace Dominion,
why
might not thofe others be obferv'd fo as to keep up
a Life of Society under that qualified Communion f
Tho' it muft be confefs'd, that before
the Divifion
of Properties a very few Heads of Law might have
been fufficient for the Government of Mankind.
Therefore when Servius, in his Obfcrvations
on
Virgil
^
, reports it as the Reafon why Cetes was by
the Antients called Legifera
^
, and her Rites
T'bef-
mophoria, becaufe fhe is
f
aid to have been the
Eundrefs
of
Laws
;
inafmuch as befvre the Livention
of Corit
Men wander'd about without Law or Government
', which
wild Condition was taken
off,
after Corn came into
ufe;
and after Laws had been inftititted upm the
Divifion
of
Land. This Account ought not to be admitted
without fome Limitation. Indeed a more
pompous
Train of Laws became needful aKer
Proprieties
were fixed. Men being ruled before by a Imall num-
ber of Ordinances
;
yet Communion
confider'd by
itfelf, doth not render Lite altogether lawlefi and
unfociable, but only more fimple and unpolifh'd
;
and, as it were, not well fettled and compared.
As for Platonical Community, it hath notning to
do with the Cafe before us ; it being profefl'edly
pofitive, and extended not only to Goods, but to
Wives and Children.
XIV. We may hence difcover in what Senfe wc
are to take that Afiertion laid down by fome Au-
thors, "That Property and Dominion belong to the Law
of
Nature, Jiritily fo
called, and which is written in
the Minds 0} Men. Where 'tis to be obferv'd, that
this ExpreflTion, fuch or fuch a thing belongs to, or
is
of
the Law of Nature, hath a different Mean-
ing, according as 'tis fpoke either of any exprefs
or immediate Command, or elfe of fome Cuftom
or Inftitution eflablifli'd in human
Life. In the
firft Senfe it imports, that the Law of Nature en-
Joins
the doing, or the not doing of fuch a Mat-
ter : In the fecond, that found Reafon advifeth
the Reccfcion and Settlement of fuch a thing a-
mongft Men, from the general Confideration of a
focial Life. For as for thofe Cuftoms or Regula-
tions which are introduc'd for the particular Ad-
vantage of feparate Commonwealths, fuch are
faid to proceed from civil or
pcfitive Law. When
therefore 'tis demanded whether or no Pnperty
owes its Original to the Law of Nature, the lat-
ter Senfe of the Word is to be regarded, and
not the former : That is, inafmuch
as a focial
Life is the very Foundation of a natural Law, and
fince it is at the fame time
ftifficiently evident
from the Temper and Genius of Mankind, that in
a great Multitude, where all join their Endeavours
Chap. IV-
Dommion or
Property,
towards
improving Life with various Inventions,
the Peace and Beauty of Society couJd not be kept
up
without diftind Dominions of things; fuch Do-
minions were therefore fettled; and this very right-
ly
and agreeable to the Aim of nature's Laws, hu-
man Affairs plainly requiring it to be done. And
after this Eftablifhment, the fame Law commands
the
obfervance of every thing that may conduce to
the End for v/hich thefe private Dominions were
erefted : Yet was there no exprefs and determinate
Command of the Law of Nature, by virtue of
which all things ought to be brought under Pnfer-
ty,
immediately upon the Origin of Mankind, or
in all Places alike; but Property was gradually in-
troduced, according as it appeared
requiiite to the
common Peace. But the Precept of Nature about
abftaining from what is another's then firft began
to exert its Force, when at length Men, by mutual
Agreement, had mark'd out and appointed what
fiiould belong to others, and what each Perfon fhould
claim as his own. Before this time it lay conceal'd
(as it were virtually or potentially) in that general
Precept which enjoins us to {land to our Covenants,
and not to injure the Right of our Neighbour. Nor
is it any Abfurdicy to aiErm, that the Obligation
we lie under, not to invade the Goods of others, is
coeval with human ^ace. And yet that Diflin-
(ftion of meum and tuum was afterwards ordained.
Thus we are often bound to yield Obedience, before
we know what will be enjoin'd : As when we have
an Obligation in general to follow the Diredions
of fome certain Perfon in all things that he fhall
hereafter require us to petform ; or when we may
fuppofe feveral particular Commands to be implied
in fome general Rule
'.
XV. 'Tis needful in this place to add a word or
two concerning the Subjeft of Property ; on which
Head the principal Quellion is. Whether thofe are
capable of being Proprietors, who have not the ufe
of Reafon, as Infants and delirious Perfons ? Now
here it is certain, that neither of thefe can original-
ly acquire the Property of any thing, or make it
their own by taking immediate Pofl'effion of it. The
Reafon is, becaufe in this Method of acquiring Pro-
perty the Intention of the Acquilitor is necelfary,
fignifying that he will for the future hold fuch a
thing as his own; and he fliould at the fame time
be able to underftand, that fuch an Adl is eft'eftual
towards the creating a Right in him. But this can-
rot be fuppofed in the Perfons of whom we fpeak.
Yet, as to the obtaining the Property of fuch things
as are deriv'd upon tliem from others, the Cafe is
377
di&rent.
For tho'
here
likewife, to make a thinP
pa s tome from
another,
^tis in the common and re-
gular courfe
requir'd,
that
I have an Undeiftand-
ing able to judge of what
is done ',
and to fliew
by Signs proceeding from
real
Intention,
that I am
willing to receive fuch a thing,
and to keep it to
my felt; yet tis the received
Praftice
of all civi-
hzd Nations to permit
Children
in their moft
tender Age, and even before
their
Birth
\ to re-
ceive and to retain a Property
defcending
to them;
And this is no more than what
natural
Reafon and
Equity advifed
;
inafmuch
as the things
which Men
ufually
appropriate, belong to the Ule and Service
of Life, and are no lefs neceflary
for Infants than
for grown Perfons
; nay indeed
fomewhat more nc-
cellaryforthe former
; who, by reafon of theirV/eak-
nefs in Body and Mind, cannot fo well provide for
their own
Occafions. In Infants
therefore a pre-
fumed Confent is judg'd equivalent
to a formal Ac-
ceptance; it being taken for granted, that no one
will retufe what conduceth to his
Benefit: Yet on
Account of their Immaturity of
Judgment, the Pof-
feflion only, and not the Exercife, of this Right
could beconferr'dupon
them.
The general Cuftoms
of Nations in their Favour might allow them to
hold, but not to ufe any thing by their own Difpo-
fal
'.
However, left their Right fhould by this
means come to nothing.
Humanity
fatther requir'd,
that Perfons of Years and Difcretion
fiiould act as
their
Reprefentatives,
in the
Management of their
Goods, till they are capable of underftanding ic
themfelves.
This
Management is either committed
to a certain Perfon by him who transfers
the Goods
upon them; or, in civil States, the
Matter is fettled
by Direftion of the Laws, and of the
Magiftratcs
;
or, where both thefe
Provifions
are wanting, near-
nefs of Blood, or of
Habitation, or the bare Law
of general
Kindnefs,
recommends
the good Office
to lit Hands
\ But all Perfons
who have engag'd
themfelves in this Cafe, by what meansfoever they
came to be entrufted with it, are oblig'd to difcharge
It with the utmoft Fidelity
; in regard to that ten-
der Age, infufEcient for its own
Guidance and De-
fence. Therefore
Hefiod ranks in tlie fame Clafs of
Sinners him that hath hurt a Stranger,
or one that
fued to him for
Proteftion
; him that hath defil'd
his Brothers Bed; him that hath
ufed rigorous
Treatment toward an antient Parent
;
Of Tf TU
k^pulfyti uhTumrcit cptpavx Timet.
Op.
(J Dier. 1. i. ver.
330. Edit. Clerk.
And him whofe Fraud the Orphan's Hope beguiles;
Vid. 1. vii. c. 26. D. De Statu hominum, 1. iii. D. Si pars hared.petatur. ^
Gal. iw. I.
Mr. Bare. NOTES on
. xiv, xv.
*
See 1. i. c. 6. . 2. aforegoing.
'
See 1. i. c. I. . 7. aforegoing, and I. iv. c. 12. following
f
10.
J
On this occafion we may mention the h^w oi Charondas (recorded by Dkdor. Sic. 1. xii. c. 15. p. Si. Edit. Rhodm.) whicli
affign,s the Goods of Minors to the Care of the k.ndred by the Father's Side, but their Perfons and the Bufmefs of their Education to
the Kindred bv the Mother.
Judgmg it probable, that the latter, to whom the Inheritance could not defcend, would make no At-
lempton the Life and Safety ot their Wards; and that the former would have no opportunity for any Defign againft their Perfons
;
and yet at the fame time would be very diligent in managing their Fortunes, becaufe after their Death, whether natural or cafunl, the
tlUte would fall to tliemfelves.
So alfo Publius Syrus, MaltfecUm agit <eger, medicum qui hafedemfacit.
He that makes an Heir of his Phyfician,
Is a good Patient, but a bad Politician.
^fi7?w LaertJ^n Solon) gives us a Law of Solon'i much to the fame purpofe ; ordaining, That no Guardian fiiould cohabit with the
Mother ot his Ward, and that he fhould
be incapable of the Guardianfhip, to whom the Ellate fell upon the Minor's Deceafe,
'- -""
Menage upon this Paflage diliiog. Laert.
See alfo
Ceo PlatQ
378
Of
the OhjeB
of
Book
IV.
Plato
3
in his Books of Laws (lib. xi.
p. 972.
Edit.
IVechel.) calls Orphans, T'he grenteft and
mcfl
facred
Charge: Where he likewife ofters many Confidera-
tions about the Duty of Guardians. Yet that a
Man fliould fuftain this Office and Truft without
Reward, or with Expence, Humanity and Equity
do not always require. Grotius and his Commen-
tators, "viz.. Boeder, Ziegler, and Felden may be con-
fulted farther on this Subjeft, in their
Obfervations
upon Grotius, B. II. 1. iii. c. 6. where they endeavour
to prove, contrary to his Judgment, that Infants
have a Propriety in their own Goods, not only
ia
refpeft of the firft ASt, or Right of poflefling,
but
alfo in refpeft of the fecond Ad, or adminiftration
of their Goods by themfelves ; for fay they,
"
The
"
Guardians have only the bare Management of
"
the Riglit and Goods of another." In all ap-
pearance this contefl is about words only.
Mr. B A R B. NO TE S on
.
xv.
'
His Words are TlafUHXrai^Ki^ ptey''?'!. ' 'tforaTt^, where are alfo divers other things of the Duties of Guardians. See alfo
Mr. Dai/mars Civil Laws in their Natural Order, Part I. 1. ii. tit. i . and the Interpreters of the Digejh, 1. xxvi. tit. i, i^c. By the
Civil Law a Guardian, who was convifted of unjuft Dealing, wa^ expos'd to Difgrace, if he was guilty of wilful Knavery; but if it ap-
pear'd that his Fault
proceeded from Negligence only, though grofs, he was not ;
as Mr. Noodt very well proves in his Vrobabilia
Juris, 1. i. c.
1
3. againft the common Opinion of the Doftors, who afKrm'd, that the Punilhment was to be inflifted in both Cafes alike.
CHAP.
V.
Of
the ObjeB
of
Dominion or Property.
I. What is reqtiird to make things our own.
II. Things confumed in their ufe are in vain made
our own.
Ml. A thing become our ownjhould be capable
of
keeping.
IV.
The uje
of fome things made our oven is ammon
to all.
V.
T'he divine Grant is not contrary to. our Dominion
over the Sea.
VI. Reafons againft all Property
of
the Sea.
VII. What the
ufe of
the Sea is.
viii. What Parts
of
the Sea are made a Poffef-
fan.
IX. The main Ocean can't be in any Man's Domi-
nions.
X.
How far
Navigation and Commerce on the Sea is
free.
WE
are in the next place to enquire into the
Objtft of Property, or to examine what
things are capable of coming under that Condition.
Now to give a thing this Capacity, we judge thefe
two Qiialifications to be neceflary
'
: Firfi,
That
it be able to afford fome ufe to Men, mediately or
immediately ; by itfeU, or by its connexion with
fomewhat eife : And Secondly, That it be fome way
or other fo far under the Power of Men, as that
they may fallen on it, and keep it for their Occa-
fions. And farther, (ince Property implies a Right of
excluding
others from your Poflcffion, without which
Rignt would be altogether inlignificanr, if it could
not be effcftually excrcifed ; 'twould be in vain for
you to claim that as your own, which you can by
no means hinder others from fliaring with you.
II. Yet fome things there are, which, tho' very
beneficial to Mankind, yet by reafon of their vaft
Extent, are inexhauftible, fo that all may enjoy
them together, and yet no Man fuffer in his parti-
cular ufe. To appropriate things of this Nature,
would be malicious and inhuman : And on this
account 'tis ufual to attribute an e.xemption from
Property
'
to the Light and Heat of the Sun
^
, to
the Air, to the running Water, and the like^s^
Although fince Nature, by denying Men Wings,
=
Petron.
"
Is there any one of the mod excellent Works of Nature, which fhe hath not made common to all the World .' The
"
Sun Ihines with an univerlal Influence. The Moon, attended with her numberlefs train of Stars, lights the very Beads to their
"
Food. What is there in Nature more bright and beautiiul than the Waters ? Yet they flow for publick Ufe.
Latona thus pleads in Ovid, Metam. 1. vi. ver.
349.
^idprohibetis aquas ? ufus communis aquarum ejl ;
iV>f fjlem proprium natura, nee aerafecit.
Nee tenues undas ; adfublica munera veni.
What Rudenefs W.iter for my Ufe denies,
Whofc endlefs Store the common World lupplies ?
Nor Light nor Air did Heaven create for 0?te,
Nor gentle Stre.ims : I crave a publick Boon.
Mr. Barb. iVO 7.S o Chap. V. . I, ir.
'
It is very hard to bring an Example of any thing altogether ufelefs, as Mr. Thom.ifius obferves in his Jurijprud. Divin. I. ii. c. 10.
. 123. It is fufficient, in my Opinion, that we find fome plcafurc in poileffing, and fo all that we enjoy is in fome mcafure ufeful.
I think then, that this Condition ought to be omitted as fuperfluous.
'
Cttjiicius in his Obfervations, 1. x. c. 7. brings two Examples; the one of the fhadow of the Plane-tree, the other of the Air;
upon which a Tax was laid. The one is found in Pliny, 1. xii. c. i . The other is in Cedrenus,
who relates it o'i MichaelPalaologus.
See Mr. Selden'i Mure Cluufum, c. z i
.
*
Nothing hinders neverthelefs but we may appropriate thefe things to ourfelves in fome manner, as to fuch an extent as is con-
tained within our own Lands. Our Author himfelf falls voluntarily upon the Subjed of running Waters, 1. iii. c. 3. ^. 4. But we
muft fay, that by the Laws of Humanity we are obliged not to deny any Man the lawful ufe of thefe Things, Titius Obferv. zSj.
See alfo Mr. Ti'oma/ius's Injiit. Jurifprud. Divin. 1. ii. c. 10. . 127. I obferve alfo, that our Author follows that Notion in his
E'smcnts Jurifprud. U.-iiverf.i!. p. 84.
See alfo . 4.
following.
5
Petronius'sV/ordsnTC, Quid autem non commune
eft,
quod natura optimumfecit? Sol omnibus lucct. Luna innumerabilibus comi-
tatafideribus ctiam fcras ducit ad pabulum, ^lid aquis did
formofius poteft ? in publico tamen manant, c. 1 00. See Ovid Metamorph.
vi.
349.
The Roman Lawyers fay pofitively, that thefe forts of things are common by natural Right. Naturnli jure communis
funt
omnium hiec ; ncr, aqua proflucns, (sf
mare, (sf per hoc littora maris, Inftit. 1. ii. tit. 1 . De rerum divif. Sec. ^. 1 .
They alfo call
them publick, in the fame fenfe, tho' they grdinarily make a diftinft kind Qf them. See Mr, Noodt's Probabiiia Juris, 1. i. c.
7,
8-
hath
Chap. V.
Dominion or
Property,
ha:h
made the ufe of the Earth neceffary to their
ufing
the Light ;
hence it comes to pafs, that fome
Perfons
may be utterly debarr'd from the latter
;
as
Criminals, for inftance, in their Dungeon. In
like
manner, fince the Air is in fome places more
clear
and pure than in others, in this refpeft the va-
lue of a place may be inhanced. As we fee Men
who
allow pleafure any fliare in their choice, very
highly
regard the profpeft of Buildings, or of Lands,
and
efpecially of the former: For which reafonthofe
Services
'^
have been introduc'd
^
, of not raifing a
Building
higher; of Lights, and of not hind ring
Lights; of Profpefts, and of not hindring Profpefts.
So
though on other accounts no one will pretend
to fix a Property in the Wind ^
,
yet we may ap-
point a Service ot. Duty of not intercepting the Wind
to
the prejudice of our Mills
^.
III. We are likewife to obferve. That as the Sub-
fiances of thofe things which Men have Dominion
over, are compos'd of different kinds of Matter ; fo
each thing is taken and poflcfs'd in that way which
the condition of its Nature admits : For the more
clofely any thing can be confin'd, and as it were
fliut up, the more eafily will it produce the effefts
of Property againft the Claims of others. And con-
fequently, the more capable a thing is of being guard-
ed from unjuft Invaders, the greater Security we pro-
mife our felves in the Property of it. Yet, as we
are not immediately to conclude a thing exempt
from Property, becaufe it cannot without fome
trouble be kept from other Hands ; fo in cafe a thing
be in fo wide a manner fpread and diftus'd, as that
either 'tis morally impoffible it fhould fall under
any method of keeping, or that it cannot be kept
without much greater charges than the Fruits and
Advantages of it would countervail, it is not to be
fuppofed, that any Perfon defires to fix a Property
which can bring him nothing but Burthen and Ex-
pence in defending it ' . Though, to render a thing
capable of being appropriated, it is not ftridly ne-
celTary that we fliould inclofe it, or be able to in-
clofe it within artificial Bounds
-
, or fuch as are
different from its own Subftance ; 'tis fufficienr if
the compafs and extent of it can be any way deter-
min'd. And theretore Grctius hath given himfelf
a necdlefs Trouble, when to prove Rivers capable
of Property, he ufeth this Argument,
^
That although
they are bounded by the Land at neither end, but uni-
ted to other Rivers, or the Sea, yet 'tis enough that
the greater part of them, that is, their Sides, are in-
clofed.
^
See hereafter, c. 8. f. 6.
*"
Lib. ii. c. 3. f.
319
IV. Laflly,
we
farther difcover, that the ufe of
fome thmgs is confin'd,
as it were, within narrow
Limits, and cannot admit
of Shares; the appropri-
ation of which was highly
expedient to the peace
of Mankind.
Again, There are things, whTch as they afford
us different Ufes, may in regard to feme Ufes be
fpentand exhaufted, and yet in regard to other Ufes
yield a never-failing
abundance.
Now, as on the
one fide, there is no reafon why fuch things as thofe
fhould not be brought under Property;
fo, on the o-
ther fide, the Law of Kindnefs and Humanity for-
bids us to deny the inexhauflible L//e of them to any
Perfon that in a friendly and peaceable manner de-
fires it.- But if any thing could be found inexhau-
flible in all its Ufes, 'twould beabfurd not to leave
that in its primitive Community. Indeed in a po-
fitive Communion, if the Objeft be fufficient to
ferve all, when divided, nothing hinders but that
we may divide it; if it would not be thus fufHcienr,
'tis beft to pofl'efs it flill without Divifion : But that
a thing lying in common to Mankind, and fuffici-
enr for the prcmifcuous Ufe of all
'
, fliould be
fhared out into diftinfl: Parts, is certainly repugnant
to Reafon. The Earth is of fuch a magnitude, as to
ferve the Occafions of all People in all Ufes to
which they can apply it
;
yet it would nor thus
ferve them, were it poffefs'd, without Divifion, by
fo vaft Bodies of Inhabitants as it now contains:
Becaufe it could never afford them Suftenance, un-
Icfs manur'd and improv'd. Therefore there is
plainly this particular Reafon, v/hy the extent of
the Earth fhould not hinder its being divided ; and
yet the fame Reafon would make the divifion of the
Ocean appear a ridiculous Abfurdity
''.
V. Indeed all other things have little difficulty
in this Point ; but as to the Sea, whether or no that
be capable oi Property, hath been difputed by the
greatefl Genius's of the prefent Age. On which con-
troverfy 'tis eafy to remark, that many cf the/F//-
ters engaged in it were more guided by their Affe-
ftion to their Country, than by their regard to
Truth. Yet by thefe, and by others who have
fhewn themfelves more dif-interefled and impartial,
the whole Subjeft hath been fo fully difcufs'd, that
'cis hard to fay any thing that others have not al-
ready offer'd. We may therefore be allow'd to ufe
more Brevity on the Qiieftion before us ; the Au-
thors ', who have throughly canvafs'd it, being fo
univerfally read. This then is manifefl, that the
fame Divine Grant which firft gave Man a Righn
^
Comp. Zeig/erzd Grot. I. ii. c. 2. f.
3.
Mr. Barb. NOTES on
.
ii,iii, iv, v.
* The Author will treat of this, c. 8. . 6. following.
'
See 1. V. c. I. . 5.
following.
6 See Mr.
Thomnfius's
Difcourfe, entitled, Nan ens ABionisforenfis contra tedificar.tcm ex amulatime, . 28. Mr. lithu treats
in general of the Right of Mills, in his
Jus Privatum Romano-German. 1. viii. c. 1 6.
'
We cannot when we will. The Will alone doth not fufEce here ; we muft befides this be inclinable to get the pofTeinon
of the thing, and moreover, the thing it felfmuft be of fuch a Nature, as to be poffefs'd in fome manner or other. We fcize
upon a thing, that we may poffefs it ; and nothing is more ridiculous, than to pretend to poiTefs what we can't either hold, nor
preferve in any fort.
^
The Bounds of a thing made our Property, are the fame with thofe of Poffeflion. Whatever a Man is feiz'd of, it belongs
to him fo far as he hath pofleffion of it ; and how far he is aftually poffeffed of it, is eafy to determine.
See Mr. Bynkerjhceky
De Dominio Maris, c. 9. p.
69, 70.
'
This Reafon is of force only when a thing is joined with an impolFibility of poflefiing it. For on this account alone, that
a thing is in fo great an abundance, that whatever quantity we take of it, others have enough ftill remaining, it follows on the
other fide, that we may appropriate as much as we will, or can poffefs, fmce eveiy one may do the fame in their turn, and no
Alan lofeth any thing. I am furpriz'd that our Author made not this Remark.
' The moit confiderable are Grotius in his Book, entitled, Mare Claufum, and Selden in his Book, entitled. Mare Liberum.
A few Years fmce Mr.
Bynkerfioek publifh'd a Difcourfe, which I have quoted feveral times before ; in which, tho' 'tis Ihort, this
Matter is treated of, in ray"judgment, more exactly, and with more Elegancy than it was ever yet. It was printed in
1 703,
join'd.
to a Commentary upon the Lau- of Rhodes, De Jailu.
C c
c 3
of
380
Of
the ObjeB
of
Book
IV.
of
affiming
the Sovereignty
of the Earth, includ-
ed
liUcwifc
the Sea. The Commiffion as well runs,
have
Dv)ninion ever the Fijhes of
the Sea, as oxer
the Beaftsof
the Land. And we cannot conceive a-
ny
Supremacy and Rule over Animals, without a
Right of ufing the Element which they inhabit, ac-
cording as the Nature of it will allow.^ Indeed
mention is liUewife made of the Fowls of the Air,
yet fince we cannot move and fupport our felves in
that
Element alone, therefore we are unable to
exercife
Dominion over the Air any farther than
we can reach while we Hand upon the Earth. But
on the Sea
we ftretch our Empire much tarther, by
the means of
Ships, now brought to their higheft
Perfeftion
; which are not only ferviceable in tranf-
porting
Burthens,
but likewile carry Mmthrough
the
Kinjrdoms
of
Neptune in a far more dreadful
Array,
tiian
he is attended with when he rageth by
Land'.
No one is now fo fuperftiticus as to join
in the
Poet's
Scruple ;
Neqiiicquam
Detts abfidit
Priidens Oceano
dijfociabill
Terras, ft
tanien impU
N'jn
tangenda rates tranjiliuvt vada.
In vain did
Nature's wife Command
Divide the
Waters from the Land,
If daring Ships,
and Men profane
Invade th'
inviolable Main. I- i. Od.
3. 21, &c.
Mr. Dryden.
Nov doth the Sea appear to have any Privilege a-
bove the
Ea-th, by
virtue of which Men ought lefs
to apply it to their Occafions and Ufe. Hovvever,
fince the
Donation of God doth not immediately
conftirute fuch
Dominion as Hiall take efteft againft
the
Claims of others; therefore it was left to the
choice of Men,
whether they would appropriate the
Sea
liUcwifc, as they
had done the greateil part of
the Land;
or
whether they would let it remain in
its
primitive
State, belonging no more to one Per-
fon than to any befides.
VI. The
Q^iefiion is, therefore, Whether any
thing
particular may bedifcover'd in the Sea, which
fliould hinder it from being an Objcft of Proper-
ty? This fomc have undertaken to affirm, partly
upon
natural,
and partly upon moral Reafons.
Amongft the
former they have ailedg'd the Flu-
idity of the Sea ; that
'
,
according to the cotn-
mon Nature of all liquid Bodies, the parts ot it
are held together by no proper Bands; whereas
Poffeffion can take place only in things that are fix'd
and terminated. To which others make anfwer,
That Fluidity confidered in it felf is no Bar againft
Property:
And befides, that the Sea is not without
its Limits %
being furronnded by the Shore; and that
it is a Work of no fuch great difficulty to confine
the f(.veral
parts and trafts of it within firifter
Bounds.
It may be added, that as Rivers are not
the lefs capable
of Property, becaufe they pafs away
in a
perpetual
Stream ; fo neither is the Sea, on ac-
count of its being
driven about by the force of the
Winds and Tide. The River is one thing, and the
Stream or
Current another: And in the fam.e man-
ner the Sea is confider'd diftinftly from the Waters
which it
contain5. The vafi extent cf the Sea doth
by no
means render it impoftible to be kept, and
therefore
doth not altogether hinder it from ccm-
in" under
Property. For we may abridge others of
the ufe of the Sea, either by Forts upon the Shore,
where it toucheth our Territories in narrow Creeks,
and
Streights; or by Ships of War, which are able
to perform the fame Service on the Water, as Ca-
flles and Forts on the Land. Though it cannot be
denied, but that for one People to keep the whole
Ocean, is morally impoffible : Nor would it be
worth their while to maintain Fleets in all Parts,
for the defence of it againft all others who fliould
defile to fliare with them in the Ule. Now 'tis
great folly to covet what one can't keep; efpecial-
ly when by fuch a purfuit we do not aim at the Ne-
ceffities of Life, but at the Gratification of vain
Ambition, and of needlefs Avarice. For though
otherwife the Defect of natural Ability doth not
prefently
extinguifh a moral Capacity, yet inaf-
much as the latter, by reafon of the Corruption
of Mankind, is almoft infignificant. Prudence ad-
vifeth us to grafp at no more than we can well
fecure our felves in the enjoyment of. Grotiui's
Limitation on this point fcems fuperfluous, when
he remarks
^ , That Rivers or part
of
the Sea may
he appropriated, upon fuppojition that either theforttier
cr the latter are but imonfiderable in refpeSi
of
the
Land, or however, are not fo
large
;
but that when
compared with the Land, they may only feem to have
the
proportion
of
a part to the ivhole. For let us
confider a People fearing themfelves on the fide of
a vaft River, on a long and narrow Slip of Land;
here the River will by no means be inconfiderablc
in comparifon with the Land ; and yet we don't
imagine that this would hinder it from a capacity
of
Appropriation. Thus there are Kingdoms, which
in extent are far exceeded by their Provinces and
Appendages.
The moral Reafon which thefe Authors urge to
prove the Sea incapable of becoming Property, is
taken trom this Confideration, that the ufe of it is
inexhauftible
5
,
and therefore fufficient for the
promifcuous
Service of all. So that 'twould be vain
and
impertinent to attempt the Divifion of it into
feparate
Portions and Shares. Which Argument we
would indeed acknowledge to be theftrongeft that
can be produced in the prefent Cafe, were it once
made appear that the Sea is, with refpeft to all its
Ufcs, fufficient for all Men in all Parts. Becaufe
the
appropriation of things was introduced on no
other account but to preferve the Peace of human
Society. And fince one efted of it is this. That he
who againft my Will invades and ufurps my Pecu-
liar, really doth an Injury to me, which I might
JLiftly
revenge in an hoftile manner; therefore thofe,
who fliould have defired to turn a thing into Proper'
ty, which, whilft expos'd to common Ufe, was not
likely to breed any Qiiarrei amongft Men, ought to
have been look'd upon no: as promoters of the Peace
Lib. ii. c. 3.
f.
7,
Mr. Barb. NOTES on
.
vi.
^
ATfofEffmJe,^hrck{''which\'ppr'
above Water, the Banks of Sand, the Capes which arc 6xit over againft the
other, the Illes fcattcred up and down in diverfe Places.
5
See . 4. n. 2. aforegoing, .ind Mr. BynkcrfhoeV%
Treatife, C g. p.
68.
of
Chap* V
Dominion or Property^
381
of
Mankind,
but as Perfons who brought in new
occafions
of breaking and difturbing it. But whe-
ther the Sea be thus inexhauftible in all its Parts,
with
refpect to every Ufe, will be made more evi-
dent, if we examine more diftinftly the particular
Services
which it affords.
VII.
The ufe of Bathing and of drawing Water
is
indeed
inexhauftible ; but then this is of no great
Confequence, and extends no farther than to the In-
habitants
of the Shore. The Sea-water is likewife
fcrviccable
for the making of Salt : But this Ad-
vantage
as well as the former is confin'd to thofe
who
dwell on the Coafts. Farther, as to the con-
venience of Navigation, the Sea is inexhaufti-
ble,
and futfers no damage from being thus im-
ploy'd^''.
But then, bcfides thefe, there are
0-
ther Ufes, part of which are not altogether inex-
hauftible; and part may prove an occafion of da-
mage to maritiiTie Countries, whofe Intereft will
not admit that the Sea fhould every where lie pro-
mifcuoufly free to all. Of the former kind is Fifh-
ing, as likewife the gathering of any thing which
grows in the Water. As for Fifhing, though it be
much more abundant in the Sea, than in Lakes or
Rivers; yet 'tis manifeft that it may in part be ex-
haufted; and that if all Nations fhould defirefuch
a Right and Liberty near the Coafts of any parti-
cular Country, that Country muft be very much
prejudic'd in this refpeft ; efpecially fince 'tis very
ufual, that fome particular kind of Fifli, or perhaps
fome more precious Commodity, as Pearls, Coral,
Amber, or the like, are to be found only in one part
of the Sea, and that of no confidcrable extent. In
this Cafe there is no reafon why the Borderers
fhould not rather challenge to themfelves this Hap-
pinefs of a wealthy Shore or Sea, than thofe who are
feated at a diftance from it: And other Nations
can with no more Juftice grudge or envy them fuch
an Advantage, than they can be angry that.
-i\^ cmnisfert omnia tellits.
tries know,^
lean Bough.)
India mittit ebiir, moUesfttathura Sabai, &c.
'^''
All forts of Giods their feveral Countries
Black Ebon only will in India grow.
And odorous Frankincenfe on the Sal/ear,
Mr. Dryd^n.
An Ufe of the latter kind it is, that the maritime
Countries are guarded and defended by the Sea, as
a Rampart. Hence the Duke of Some,fet, Proteclor
of
England under Ed-xard VI. in an Epiftle to the
Scots, which we find in Skidans Commentaries
*,
tells them, Oceana claudiir.ur undique, tanquam ?riccni-
hus
tr
"valk firmiffimo
: We are on all
fides
encltfed
with the Ocean, as with the
flrungefl
IVall and Bulwark.
And we may with much more juftice bcitow on
the Sea tnat Name of udcivurov mrxos
'
, an Immor-
tal Wall, than Ifocrates ' complemented the River
Nile with it. Yet this Defence is not altogether
certain and fecure. It hinders indeed any Expedi-
tion on Foot, but lies open to the Approach of
Veflels. For which Reafon it muft needs be a Dif-
advantage to any People thus feated, that other
Nations fliould have free accefs to their Shore with
Ships of War, without asking
their leave, or with-
out giving fecurity for their
peaceful and inoften-
live Pailage. But we cannot, with any Accuracy
%
determine in general how large a Space of the Sea
ought to be allow'd for fuch a Defence,
in refpe^i
of which it may be for the Safety and Intereft of
the Borderers to claim a diftinft Dominion
over it.
Yet certainly it would argue a very unreafonable
Fear and Jealoufy, fhould any Kingdom barely on
this account delire to extend their Sovereignty over
the Sea tor fome hundreds of Leagues together.
What C;xfar reports of the Germans may ferve to il-
luftrare this : The particular Communities look en it
as the
higheft Honour to make a
"vafl
Extent
of Def.rt
round about thetn,
wafting
all the
Confines of
their
Neighbours
;
this they reckon the
furefl Mark
of
an es-
trairdinary Valour, that the former Borderers have re-
tired, and been driven to a greater
diftance, and that
none dare feat themfelves in
fo formidab 'e a Neighbour-
hood. And then, befides, they thougin themfelves the
fafer by this Policy, having taken atvay all F^ar
of fud-
den Incur[tons, De Bell. Gall. 1. vi. c. 23. However v?e
fee by what hath been ofter'd, that there may be
very weighty Reafons for a People fo far to appro-^
priate to themfelves fome part of the Sea, as to
oblige all others to acknowledge the Ufe of the fame
Part, as a Pcrmiffion from them, and an Aft of
Bounty and Favour.
VIII. But fince all Dominion, capable of pro-
ducing any Efleft againft the Claims of others, takes
its Rife from fome Act of Men ; therefore how far
the Bounds of any People ought to reach on the
Sea, is to be difcover'd cither from their own right
of Poffeflion, or from theit Treaties with their
Neighbours. Thus Ifocrates (in his Panegyr.
p. 1 1 1 =
Ed. Parif.) boafts that the Athenians,
by their Arti-
cles of Peace with the King oi Psrfia, had obliged
him not to come beyond Phafdis with his Ships of
War. Yet fuppofing the Matter to be dubious, and
that there are no clear Memorials to be found of
fuch Afts as might prove the Occupancy to be real,
which is alledg'd
;
what Prefumptions are to be
made in this Cafe, we may underftand from the fol-
lowing Remarks. In the Beginning then, whilft wc
were yet ignorant of Navigation, it is not probable
that the People, which had taken polVcilion of any
Territories, extended their Dominion farther than
to the neighbouring Shore. For, inafmuch as the
Filhing-Trade was yet but poor and barren for
want of Boats, and the utmoft Advantage they
could make was to pick up the Shell-Fifii which
were left by the Tide, or to angle from the Rocks
;
there was no Feat that they fhould in this refpeft fuf-
fer from their Neighbours ; who, being neceffitatcd
to make their Approaches by Land, might be re-
puls'd with little Difficulty. Nay, after thelnven-
tion of Shipping, moft Nations, for a confidemble
time, left each other at full liberty to fifli where
they pleas'd : Becaufe they imagin'd that an Im-
ployment of fo great Labour and Hardfhip would
'
Vid. 1. xxiii. f. i. D- De Savitut. frted. ruftic
''
Vid. 1. viii. t. 3. D. De Servit. pr^ed.
mftic.
"
See Pliny, 1. ix. c.
15.
of the happy Shore about Byxantium.
''
Vid. Virgil. Gcorg. 1. i. vcr.
57,
Sec. " Lib. xx. ^ Encom. Bi'/r-
Mr. Barb. NOTES on
. vii.
'
A firm and everlafting Wall.
* Mr. de Bynkcrjhoek, in his Differtation, c. 2. fays,
"
That fo much of the Sea may be thought to be fcized from the Land, a3
" can he defended by our Arms, i. e. according as we exprefs it, fo far as is within Canon-fhot.
"
He thereupon fcts down an
Order which the States- General of the United Provinces gave the Captains of their Ships in 1671. to falute as they pafs'd the
Coalls of any Foreign Prince, that they might .know that they wcrg within Canon-fliot, near the Places of that Country.
*
no?
382 Of
the ObjeB
of
Book
IV.
not engage fuch a numerous Train of Followers, as
that any publick Diflurbance fliould be apprehend-
ed from their Difputes and Contentions. And whilft
hof^iie Heats were yet unknown, the Sea was a fuf-
ficient Defence without other Affiftances. And af-
terwards when they began to build Ships oi War,
Men were contented a long while to appropriate on-
ly the Havens and Bays, leaving the other Parts of
the Sea in their primitive Community, This Mo-
.
deration embolden'd the Pirates to carry on their
Profeffion with greater Liberty ;
whilft they v/ere
of Opinion, that 'twas a lefs heinous breach of the
general Peace to commit thefe Outrages in places
fubjeft to no Jurifdi<5tion. At length, when they
had found out the benefit of Merchandife, and the
conveniercy of fo (horc a PalVage by Water for
Goods andTraffick, fome Governments feated near
the Screights, or narrow Seas, challeng'd to them-
felves a Property in them ; that, by requiring Toll
and
Cuftcm ' , they might come m for a (hare in
the Gain, or that their Towns might be frequented
by rhe Trading Part of the World. After this, o-
ther parts of the Sea were likewife brought under
Subjection, cither on account of their great Plenty
of Fifb, or becaufe this was a necelTary Expedient
for the Security of the bordering Provinces.
Yet in thefe times they fcarce exercifed any o-
ther Right ot Sovereignty bifides the giving out In-
junitions, that all wiio pafs'd within fuch Bounds
flaould abflain from all Harm and Violence ; that no
Piracies fiiould be there committed, and no Veflels
of War enter without Pcrmi.fTion. Thus when the
Lacedemonians, in 'Thucjdides
'
, had convey d fome
Forces to Efidaurus by Sea, the Argives in an Em-
bafly to the Athenians complain'd, that they, having
promis'd by League not to grant the Enemies of
Aigos Paflage thro' their Dominions, had never-
thelefs fufter'd them to fail by unmolefied. And
accordingly the Athenians interpreted this ACi of
the Lacedemonians as a breacli ot Peace. We fee it
is now the receiv'd Cuftcm, in order to the acknow-
ledgment of this Sovereignty, that foreign Veflels,
as they pafs by any Fort on the Shore, or any Ship
of War belonging to the Prince, who at prefent car-
ries himfelf as Lord of the
'
Sea, (lull pay fome mark
of Refpect.
It doth not feem neccflary that particular
Nations
fhould make out the precife time when they ob-
tain'd the Dominions of fuch or fuch parts of the
Sea, by taking PofleHIon of it : But, inafmuch as
the Exercife of this Dominion may nor at all times
be of Ufe and Advantage, 'tis enough if they then
perform'd any Ad of Sovereignty, when the Intereft
of the Commonwealth feem'd to require it : Nay,
in our Judgment, it might be no Abfurdity to af-
firm, that when Naval Forces are once brought in-
to common Ufe, the parts of the Sea, fo far as
they ferve only for a Defence or an Appendage,
do without any fpecial corporal A6t pafs immedi-
ately under the Dominion of that People whofe
Shores they wafh
''.
For in this refpeft the Sea
is to be look'd on as an Licrement of the Land, as
the adjoining Moors and Fens are reckon'd the In-
crement of a City. Now, as in the Occupancy, or
the taking pofteffion of Immoveables, it is not ne-
ceflary that our Body fiiould touch each Part, but
the touching of one part only is conceiv'd to create
a Property over the whole ; fo when a People have
feiz'd on one particular Region inclofed within fet-
tled Bounds, ftill under the Notion of taking all the
void Space about that they fhall afterwards have oc-
cafion for, tho' at firft they have no Defign to en-
large, or exercife their Dominion farther than thofe
Bounds, as not thinking what lies beyond to be of
Ufe or Service to them
;
yet when they come at
length to find, that there is a neceflity of adding
fuch a void Space to their prefent Pofleflions, their
bare Intention and Refolution fhould feem fufficient
to extend their Sovereignty over it, as a Part or
Appendage of their Empire. Efpecially when it
once appear'd, that other Nations had thus ftretched
their Command over the void Sea : Whence 'tis a
fair Prefumption, that the reft of the World pre-
tend not that thev fiiould be behind with them in
this Advantage
* '
. From which ConGderati-
ons it is manifeft, that in thefe times, when Ship-
ping is brought to its higheft Perfection, it is pre-
fum'd, that every maritime People, at all acquaint-
ed with Navigation
"*,
arc Lords of the Sea, where
it voucheth their own Shore, fo far as it may be
counted a Defence, efpecially in Ports and other
Places
=
Lib. V. c. 56. Edit. Oxen.
''
Comp. Ziegkr ^AGrot. 1. ii. c. 3. f. 11.
*
In all the Editions of the Original the Word eum is wanting, which makes our Author very difficult to be underftood.
Mr. Barb. NOTES en . viii.
*
See Grotius, 1. ii. c. 3. . 15.
^
Mr. Bynkerlhoek in his Difcourfe, c. 5.
near the End, maintains, That that is not always an acknowledgment of the Sove-
reignty of that Perfon, to whom that Refpeft is paid, over that P.irt of the Sea where it is done. As for Example, fays he,
"
The States-General in their Treaties of Peace made in the Years
1654,
1662, 1674, and 1684, obliged themfelves to lower
"
their Topf.'.ils to the Ships of the King of England in all the Northern Se.as as far as Cape
Fhufler ; but that was only, becaufe,
"
according to the Law of Nations, all Republicks ought to give place to a crown'd Hc,\d, and to thofe that reprefcnt him.
"
In
fhort, the Cuftom of faluting the Veflels of fuch Nations to whom they are inferior, in one manner or other, is not fo new as our
Author would infmuate ; for we find in Appian, as Jiijius Lifftus has long fince obfervcd, EleB. i. 23. p. 729. that Mark Anthony
and Domitius jEnabarbus meeting one another, the firll Serjeant of Anthony, thinking himfelf obliged according to the Cuftom,
cry'd out, that he fhould lower his Standard, which was then us'd inllead of a Mall (Ka9fArw rh a-^fxilov) to pay his Homage to
his Mailer. De Bell. Civil. 1. v.
p. 1 1 18. Edit. Tollii.
^
When our Author fays. That they may, without taking a new FofTeflion, feize on a thing which they had before ncglefted,
as a thing of no Profit, it is not to be underftood, that they have called to mind fome new Reafon, which of itfelf renders it
neceffary to acquu-e that which before they had not troubled themfelves to make a Property of Thus, fmce the Invention of Ca-
non, the Sea, which adjoins to a Country, hath upon that account been thought to belong to the Lord ot the Country, as far as
a Canon can flioot. But yet there muft be a formal Aft of taking Poifeffion neceffary, without which every one may look upon
thofe Seas and Lands to be common, becaufe they do not appear pofTcfled by any ; for why may not he, who finds them conve-
nient for him, feize on them .'
*
See . vii. Note 2. above. As for all that Space of the Sea which can't be defended from the Land, Mr. Bvikerfkoek thinks
none c.-,n make themfelves Mailers of it farther than they fail, with a defign to appropriate it to themfelves, and he adds. That
they can't prefcrve the Property of what they have feized on, but by conftant failing, and having always a Fleet abroad. Hence
it \vas, that the Romans heretofore, when their Empire extended through Europe, Africa, and
Aftj,
were Mailers of the Mediter-
ranean Sea, becaufe they always kept four Fleets a-foot ; the firll at the Port of Milcne, the fccond at Ravenna, the third at Fre-
jus, and the fourth at Byzantium or Conflantinople. They commanded alfo that part of the Ocean that is between England ^rA the
Continent, as well becaufe they poflcfs'd the Lands on both fides, as becaufe they had a Fleet in the Englijh Chanel. But now,
,
according
Chap.
V*
DominiGn or Property,
385
places
where
there is Convenience of Landing
''.
In like
manner theGulphs and Channels, or Arms
of the
Sea, are, according to the regular Courfe,
fuppofed
to belong to the People with whofe
Lands
they are encompafled. But in cafe differ-
ent
Nations
border on the fame Channel, the So-
vereignty of each fhall be conceiv'd to reach into
the
middle of the Water, from every part of their
refpeftive
Shore ; nnlefs either all the States have
agreed by
Covenant to ufe the whole Water pro-
mifcnoufly
amongll; themfelves, and to exercife a
general
undivided Sovereignty over it, agamft Fo-
reigners : Or elfe, if one particular People has ob-
tain 'd a
Dominion over the whole by Pad, or by
the
tacit
ConcefTion of the reft, or by the Right of
Conqueft, or becaufe they firft fix'd their Station
near it, and immediately took it into full Pofl'ef-
fion,
exerciling
Afts of Sovereignty
againft the
People of the
oppofite Shore. In which latter
Cafe,
neverthelefs, the other neighbouring
States,
their Fellow
Borderers, (hall be fuppofed to be
Lords of each of their particular Ports, and of fo
much of the Sea as the convenient accefs to the
Shore requires. Of the Eftefts of the Sovereignty
(if it may be fo term'd) over the Sea, vid. Alberic.
Gentil Advocat. Hi/pan. 1. i. c. 8, & 14.
and Sel-
den Mar. Clauf. 1. ii. c 20, 21, 22. To which we
may add by the way what Dr.
Cbamboiuin takes
notice of in his Prefent State
vf
England, Part I.
c. 4.
That Perfons born on Shipboard upon thofe Seas
which are fubjeSi to the Englifh Dominion, are ac-
counted Nati'ves of
England, and have m need of
Na-
turalization, as others born withont the Realm.
IX. But what fhall we fay of the main Ocean,
which fpreads itfelf between thofe vaft Continents
of
Europe, Africa, America, and the unknown
Southern
Coafts } Was this ever brought under
Property, or doth it ftill remain in its primitive ftate,
free and common to all the World ? As for the pro-
digious extent of it, this however doth not abfo-
kitely render it incapable of being appropriated.
Yet we muft confef?, the Dominion of it would
not be only unprohtable, but unjuft ;
fhould either
any one Nation challenge it all to themfelves, or
feveral States divide it into fo many Shares, ex-
cluding all the reft of Mankind. Navigation, or
the convenience of Water-palfage, is a thing which
fufters
no Damage by being enjoy'd ;
on the bare
account of which the Appropriation of the Sea is
needlefs and fuperfluous ; fince Men may fail no
lefs commodioufly,
were the Sea common to all
Nations, than if it were peculiarly fubjeft to one.
The Fifhing-Trade is of no very great Confe-
qiience in the main Ocean ; and (ince you do but
vainly call a thing your own,
when 'tis morally
impoflible to hinder others from
uiing it promifcu-
oully with your felf
;
we cannot think any State
would find it tantamount to maintain Fleets in all
parts of the Sea, only to fecure the Fifhing againft:
Interlopers. But what it a particular Nation, ei-
ther through Ambition and the Vanity of being
ftiled Lords of the Ocean j or prompted by Ava-
rice, and the hopes of drawing to themfelves all
the Advantages of Navigation and Trade, Ihould
claim the Ocean as their peculiar Pofleffion ? Efpe-
cially if they urged by way of Title, That they
were the firft who entred upon the Ufe of it with
Sails and Shipping, and that they poifefs Lands in
every Continent round it : And that, fince the Sea
was originally a void Space, he, who before the
reft attempted to fix a tJfe and Occupancy in it,
might thereby acquire a Property exclufive of all o-
thers. To this we anfwer. That Men have in-
deed a Privilege of making wafte Places their own,
by firft feizing upon them : But then they are al-
ways to remember, that God gave the VVorld not
to this nor to that Man, but to human Race in
general ; as likewife, that all Men are by Nature
equal. Wherefore, that tacit Covenant between
the firft Introducers of Property, alligning the Right
of thofe things which did not fall under their prime
Divifion
'
, to the Perfons who fliould firft take
Pofleffion of them, can by no means be extended
to fuch an Objeft, which if one fiiould hold alone,
he might opprefs all others with moft unjuft Sla-
very, or might intercept fome moft important Ad-
vantages, which would otherwife accrue to all
Nations in common. Inafmuch as fuch a Cafe as
this could not enter into the Imagination of thofe
primitive Divifors. As then no one would deferve
Cenfure for taking out of a common Store what-
ever is neceflary for his own Occafions, tho' in
order to future Ufe; fo he is not to be endur'd,
who out of a vain and fenfelefs Grcedinefs fiiouId
lay claim to more than he could ever fpend ; and
fliould defire infinitely to enlarge his own Domini-
on, for no other Reafon, but to debar others from
the ufe of thofe good things which Nature affords.
There can then no probable Ground or Colour be
allcdged, why any one People fhould pretend to
Mr. Barb. NOTES on .
viii, ix.
according to Mr. Bynkerfhoek, there is no part of the main Ocean, nor of any Sea inclos'd wkh Land, chat belongs to any Power
farther than he can command it from the Shore, becaufe there is no Power in aftual Pofleffion after the mariner we have before
mentioned. As to the Quellion of Faft, I will not meddle with it. Our Author may be confulted about that. As for the matter
of Right, altho', as I fhall fhew hereafter, I do not reft altogether in the Opinion of that learned and judicious Lawyer, who lays
it down for a general Maxim, That, without regard had to the Laws of Kingdoms, Property is always extinguifh'd with the aftual
Pofleffion ; yet I think he hath reafon to maintain it in refpeft to the Sea, and other things of like Nature, which remain fuch as
Nature h.is produced them. As the Induftry of Man has added nothing but the bare Pofleffion, it follows, that from the very Mo-
ment that Pofleffion is left in any manner, the things are and may be look'd upon as quite abandoned. As for Example, fuppofe
there be a great Extent of Land unoccupied, which is not encompafled on any fide with the Lands of any State, tho' they are near,
if the Mailer of the Country takes no care to till them, or fecure them ; or if he has fometimes done it, and does difcontinue it,
any Man may feize it as we'll as he, efpecially if the Neighbours have refigncd all their Right to him ;
and in this cafe alfo the
Pvenunciation of thefe laft can't be drawn into confequence for others who would fettle there, fo long as they are not
^'^"^"Z P'-
fefl'ed. By a much ftronger Reafon we muft acknowledge the neceffity of a continual Pofleffion in refped of the Sea, which, ex-
cepting a little Diftance from the Shore, is much lefs in ufe both in itfelf, and by all the Care that any Man can take to make it
profitable in any Manner ; wherefore nothing but infatiable Avarice, and a prodigious Difregard to the
Equality of all Men by
Nature, can fuggeft fuch vaft Pretenfions, and fo difficult, not to fay impoffible, to maintain. See .
following.
i,
^
Bodimis de RepM. 1. i. c. ult. on the Authority of Baldus affirms. That by a kind of commori
Right enjoy'd by all Princes
of Maritime Countries, the particular Sovereign may command andcontroul thofe who approach
within fixty Miles of his Shore.
'
It is not necefl'arv to h.u'e recourfe to the intent of the Agreement, which, as I have fliewed above, is a meer Chimera.
The impoffibility of feizing upon the main Ocean, and preferving a non-interrupted
Pofl"effion, is fufficient to prove the Ridicu-
loufnefs and Injuftice of thefe proud Pretenfions. See
i
viii. n. 6. before-going.
And Mr. de Bynkcrpeeei Difcourfe, c.
7.
the
384
Of
the Objea
of
Book
IV.
the
Dominion of the whole Ocean, fo as by virtue
of this Right to aim at excluding all others from
failing there. Not one of thofe Reafons, which rirft
moved Men to the Settlement of Property, doth af-
feft the main Sea. To make it fit for Navigation,
there is no need (in regard to the Sea itfelf) of
the Pains and Induftry of Men. The Winds labour
no more to drive all the Fleets in the World, than
a fingle Veffel. Nor do thofe Tracts, which the
Keels plough up, make the way rougher to thofe
that follow them. As for the Paifage to the other
Continent, this is not rendered lefs convenient to
one Nation, though another
ufeth the fame Road.
And to have been the hrft
Travellers through any
Place doth by no means give a People the Domi-
nion of it, or prohibit others from turning ic to
the fame Advantage. It is a mod imprudent Plea
to urge,
T'^iin any one State, by intercepting the naval
Affairs
of
all others, may be able to draw to it
felf
the -v^hole Profit of
a S.a 'Trade, which Interefl all Per-
fons
ought induftrioufiy
to purfue. ^As if all the reft
of Mankind ought to be opprefs'd by a mofl: un-
juft Monopoly, to gratify the infaciable Avarice of
a fingle Government : Or, as if all others muft
voluntarily turn Slave?, becaufe the wicked Am-
bition of one Prince or State lufis after the Sove-
reignty of the whole World. Such hath been the
Bounty of Providence towards Mankind, as to
give an abundant Supply of all things ufeful to
their Neccflities. But as to the manner of pof-
fefling thefe things, Reafon eijoins Men to ufe
fiich Moderation in it, as to relt contented with
the Acquifition of fo much as is likely to fuffice for
the Service of themfelves and of their Dependents.
Nor doth the fame Principle forbid them to be
concerned for the future, provided they do not, ei-
ther by Envy or Avarice, hinder others from gain-
ing a needful Maintenance and Relief. If any one
carries his Purf^its further, and fcrapes up fuper-
fluous Stores, to the Injury and Oppreffion of o-
thers, it can be no Fault in the reft, if, when Op-
portunity ferves, they engage in a timely Enter-
prize of reducing him to Reafon.
X. From what we have obferv'd, it is clear,
that to fail the Ocean in a peaceful manner both
is and ought to be the free Privilege of all Nati-
ons
: /f is, becaufe no one People have attained fuch
a
Right over the Ocean, as will juftity them in
fhutting out all others from the fame Benefit : And
it tught to be, becaufe the Law of general
Kindnefs
and Humanity requires it. Whence it follows,
that
no Sovereign can hinder the Nations which
border
on the main Sea, and are not under his Govern-
ment, from maintaining a Trade with each other;
unlefs he have by Covenant obtain'd fuch a Right,
as either that fome particular State is bound, on
his account, to exclude fome certain People from
all Commerce with them (of which kind was the
Contrafi: between the Dutch
Eafl-India Company,
and the Emperor of Ceylan ^) or that fome whole
Nation have furrendred up to him their right of
failing to another
'
. For lince I may, at my plea-
fure, either retain or alienate my Goods, efpeci-
ally fuch as regard rather the Superfluities of Plea-
fure than the Neceffities of Life ; there is no rea-
fon but that I may, on fome certain Confidera-
tions, oblige my lelf to difpofe of them to one
Perfon, and to none befides. And this indeed is
one proper effeft of Liberry, that Men may by
Covenant give up their Rights between themfelves;
though no fuch Covenant fhall be allowed, if re-
ally prejudicial to a third Perfon. Hence likewife,
as a Prince may juftly ordain, that no Goods, of
the Growth ot the Manufacture of his Dominions,
fhall be exported by Foreigners, unlefs by fuch as
have obtain'd this Privilege, either upon Cove-
nant, or by free Grant (tho' the Law of Nature
doth not at all oblige him to ftn'ke fuch a Cove-
nant, or to make fuch a Grant, unlefs fome Nation
abroad be reduced to fuch Extremity, as that with-
out this Liberty of Commerce they muft neceflarily
perifh) fo if a People of Europe, for Inftance,
have appropriated any Country in Africk, or the
Indies, by fuch means, and in fuch manner as the
Cuftom of Nations makes eftedual towards the
acquiring Dominion
; they may with like Juftice,
if they think fir, cut oft' from others all Paftagc
thither on account of Trafiick, or not allow it,
but under certain Conditions, or fome fettled Bar-
thens and Duties. And this we now fee in every
Day's Practice : Nor doth it appear to be in any
refpeft repugnant to natural Reafon. For that
Liberty of Commerce, on which fome ground fuch
high Pretenfions, doth not hinder but that a State
may allow more Favour to its own Subjects, than
to Strangers.
>
Vid. Pkilipp. Baldic. Defcript. Ors Malabar, it. Coromandil- c. 10. & 12.
Mr. Barb. NOTE on
^.
x.
'
See lib. iij. c. 3. ^. 6, 9,
ii. above.
CHAP.
Chap. VI- Of
Occupancy,
385
CHAP. VI.
Of
Occupancy.
J.
The feveral -ways
of
acquiring Dominion.
II. "The Original Methods
of
acquiring it.
III. Occupancy is gaind in wholey or by Parcels.
IV.
The Pojfefjion of
Moveables depends on the Dif-
pofal of
the chief Governour.
V. In fome
Places the catching
of
wild
Beafls is al-
lowed to every one.
VI. In other Places 'tis the privilege of
great Men only.
VII. Whether he that hunts contrary to the Law, has
a Property in the Beafl he takes.
IT
follows in courfe, that wc confider the feveral
ways of acquiring Dominion
'
, which, after
Grotiui's Judgment
*
, may conveniently be divid-
ed into
originary and derivative. The former are
thofe by which the Property of any thing was firft
introduced : The latter thofe by which a Property
already fettled pafleth from one Man to another.
viii. W/jen things occupied are under/iood to le im^
moveable.
IX. tVhen they are moveable.
X. Whether a wild Beaft becomes
mine as foon as I
have wounded tt.
XI. Whether the Fifh are ours, that are in our Ponds,
XII. Things left become immediately the
firfl
Occu-
pant's.
XIII.
of Trenfures.
XIV.
Of Pojfeffions obtain d by War.
Again, the originary way of acquiring Property
^
is either Jimple and abfolute, as when we obtain
Dominion over the Subftance and Body of a thing:
Or only primitive and with refpeEi, as when we
add to a Thing already out own fome farther
Improvement and Increafe.
*
Lib. ii. c. 3. f. I.
Mr. Barb. NOTES on Chap. VI.
. i.
'
Before we proceed farther, we mull here determine a Queftion which Mr. Bynkerpoek has given us an Occafion to examine.
That able Lawyer maintains,
"
That by the Law of Nature, Propert)', which begins with a corporal PolTeffion, ends Avith it alfo."
According to him, that fame Moment that a thing is out of our Power it becomes cotrunon. And if for a long time there has been
an Uiage that every one remains a Proprietor of his own Goods, although he keeps not the corporal PoifefTion of them, this is the
Effed of civil Laws, and of the Agreement of the Members of every State.
"
Infomuch, aids he, tliat if a thing belonging to
"
any M.m be found in a llrange Country, he being abfent, and not fecuring it, it belongs to the firft Occupant, provided there
"
be not fome particular Treaty between the two States, by virtue of which they ought to be look'd upon as Friends ; for if
"
they are only eng.iged not to make War upon one another, this Agreement leaves every one's natural Right entire to feize upon
"
that which is not in the pofleflion of the former Owner.
"
Mr. Bynkerjhoek allcdges here the Authority of the R man Law, and
a Paflage of St. Aujlin quoted in the Canon-Law ; but fmce he treats there only of the Light of Reafon, I will not ftay to examine
whether thofe PafTages ;ire \vell applied, or lio, as a Germa?i Lawyer affirms, who endeavours to confute the firft Chapter of a
Dutch Lawyer, De Dominio Maris. It was Mr. Titius, who in
1704,
the Year after Mr. Bynkerjhoek^ Book was puUifli'd, main-
tiin'd a publick Difputation at Leipfick, De Dominie in rebus occupatis ultra pojjefftonem durante, a Difcourfe which I never lk\v
;
but the Author himfelf gives us the Abridgment of it in his
Jus Privatum Romano-Germanicum, Sic. 1. iii. c. 6. As to the Quota-
tions of the Civil Law, I fhall only obferve, that the Roman Lawyers did not agree perfectly among themfelves about the continu-
ance of the Right of Property, as Mr. Noodt has proved ; that they differed in the manner of getting Pofl<:ffion, Probahilia
Juris,
1. ii. c. 6. As for the Proofs taken from the thing it felf, Mr. Titius, as above, delivers himfelf briefly thus :
"
i. That the Hy-
"
pothefis of Mr. Bynkerjhock deftroys all forts of Right, and particularly reduces Property to nothing. For of what Ufe can
"
that Right be which is extinguifh'd by the Ad with which it is acquired ? 2. That there is no plaufible Reafon to be given why
"
fuch great Force fhould be attributed to PolTeffion, if the continuance of Right and Property depends fully and abfolutelv upon
"
it. 3.
Laftly, As to human Right, perpetual PofTeffion is impoffible, and io we ought not to believe that it is neceifary to
"
preferve them. From whence he concludes. That to follow the Maxims of the Law of Nature, we muft on the contrary fay,
"
That Property being once admitted continues always, tho' there be no PofTeffion ; efpecially if the Confent of the Proprietor
" himfelf, or the civil Laws do not order it othcrwile.
"
Thefe Reafons, in my Judgment, prove fufficiently whit they were in-
tended for, but we muft explain them a little, and add what is wanting to them. I fay then, that fmce Property has its Original
from taking PofTeffion, it doth not follow that the Right fo acquired ceafes, when there is no PofTeffion. The intention of Nature
in making all things common to Man is, that every one fhould ufe and difpofe of what he has gotten according to his own Plea-
fire, 'till he leaves it, and permits it a-new to be feized by the firft Occupant, without which this Right v.'ill be of little Ufe. So
that PolTeffion is nothing elfe but an indilputable Mark of the Will to retain what a Man has feized. To authorize us then to
look upon a tiling as abandon'd by him to whom it belong'd, becaufe he is not in PofTeffion, we ought to have fome other Reafons
to believe that he has renounced his perfonal Right to it. Now, as I have obfcrv'd in Note 6. 8. of the foregoing Chapter,
we may prei'ume this in refped to thofe things which remain fuch as Nature has produced them, efpefially fuch as are very nume-
rous, or are of a vaft Extent ; tho' Mr. Titius doti not make that Diftindion, and maintains, that one may be Malier of'the Sea,
akho' he be not in PolTeffion. But as for other things, which are the Fruits of human Induftry, and are either produced by Nature,
or are put into a new Form, or are tamed, or are hunted out of their Holes ; all this is done with great Labour and Contrivance
ulually ; and it can't be doubted but every one would preferve his Right to them, 'till he makes an open Renunciation ; and fo they
ought to be looked upon as his, tho' he does not keep them ever after, or he lofes the PofTeffion by fome Accident, which m:iy eafily
liappen, and is almoft un.ivoidable. In the main there is nothing but what is juft in this Claim, as m.ay appear from what i? faid,
c. iv.
^. 4. n. 4.
ot this Book. And Mr. Bynkerjhoek owns, that the firll Men left nothing common but what thev could not
diftindly poflefs. Their Covetoulnefs and Defu-e of having was fo great, that to exprels it, the Fable of Clambering up into
Heaven was indented, c. 2. p. 10. Can we then believe, that Men of this Temper would confent that the Right of" Property
fllould be always extinguifhed with corporal PolTeffion, which can never be without Interruption ? Having thus taken liberty to
fpeak my Thoughts about Mr. Bynkerjhoek's Principle, I (hall declare my Indignation againll what Mr. Titius (as above, ^. 2, 5.)
lias difcourfed fo boldly. He ought in his firft Ledure of that Difcourfe to have confider'd the Worth of the Author, and not
to liave accufed him of favouring Hobbcs^s Opinions, if he had been cautious, at the End of Chap. iii.
^ This Divifion may alio agree with Acquifitions derivative. See what is laid upon the following Ch.apter, . i. Farther, wc
muft diftinguifh alfo the manner of acquiring Property, into natural and civil. Natural Acquifition is that which is made either by
the Will alone of the Acquirer, in. relation to fuch things as belong not to any Perfon, or by the mutual Confent of him that
transfers the Property, and of him that obtains it, as to fuch things as belong to any Perfon. Civ if Acquifition is that which either
transfers a Property with the Confent of the particular Owner, or requires fomething more than the mutual Confent of Parties.
Titius"
s
Obferv.
290. We find the like Divifion in the Inftitutes: ^larundam enim rerum Dominium nancifcimurjure naturali
ijuaruttdam vero jure civili, 1. 2. tit. 1 . \. 1 1 . See Chap. 10.
i-
i . n. i . and c. i 2. i- i . n. 1
. following,
D d d
'
II. We
586
Of
Occupancy. Book
IV.
II. We
hare fufficiently made it appear in out the word is ofed in
* Senica
7%yefi.vcr. 202, &
203.
former
Remarks
*
, that after Men came to a Re- , j-
a r 1 ^ r *
luuiici
rvi-i
... /^
_
-1 / medio efifcelus pofitum occtipantt.
folution
ot quitting the primitive Communion
'
,
j j
*
rj^"'
v,.,ifurtii.
upon the
Strength of a previous Contraft they af- In Tacitus, H. 1. v. c. i.
infiu
Multi quos urbe atq;
fign'd
to each Perfon his Share out of the general Italia fua
quemq;
fpes acciverat cccupaudi principem
Stock,
either by the Authority of Parents, or by adhuc vacuum.^
univerfal
Confent, or by Lot, or fometimes by the In Pliny, 1. iv. Epift. 15.
Inea civitate, in quaom-
free
Choice and Option of the Party receiving, nia
quafi
ab occupamil/us agmtur, qux legitimum teni-
Now
'twas at the fame time agreed, that what- pus expetlant, mn matura, fed ferafunt.
ever did not come under this grand Divifion, fhould III. In Relation to the Occupancy of
"
Immovea-
pafs to the firft Occupant
''
; that is, to him who, bles, efpecially of Lands, we are carefully to ob-
before
others, took bodily Pofleflion of it
^
,
with ferve and diftinguifli, whether it be made by one
Intention to keep it as his own. Hence, when Perfon only, or by many in Conjunftion. One Man
Grotius" affirms. That
original Acquifition antient- is then adjudg'd to be the Occupant of Land, when
ly,
xuhilji 'twas pofjihk for
all Mankind to meet in one he tills and manures it, or when he cnclofeth it
place, might be made by Divifion alfo, whereas now it with fettled Boundaries and Limits : Yet ftill with
can be jnade only by Occupancy : The words ought this Provifo, That he grafp at no more than what,
to be
explain'd in the following Senfe. When Man- upon a fair account, feems tenable by one Fami-
kind firft began tofeparate into many Families, di- ly, however enlarg'd and multiplied. Should one
ftinft
Dominions were fettled by Divifion : After this Man, for Inftance, be, with his Wife, caft upon
Divifion, he is faid originally to acquire a thing a defcrt liland, fufficient to maintain Myriads of
lying void and without a Poffeflbr, who happens to Peoplej he could not without intolerable Arrogance
be the moft early Occupant of it ; /. e. he who lays challenge the*whole Ifland to himfelf upon the Right
hold on fuch a thing before others, or gets the of Occupancy, and endeavour to repulfe thofe who
ftart of them in putting in his Claim to it. Thus ftiould land on a different part of the Shore.
Chap. iv. f. 4.
*'
^odenim nullius
eft,
id ratione naturali occupanti conceditur, Digeft. 1. xli. t. i. leg. 3.
princip.
*
Vbi fupra.
Mr. Barb, iV07'5 on
. ji, in.
'
We have Ihewfi in c. 4.
S-
4- " 4- That the firft Occupyer makes himfelf a Property by that only, without fuppofing any
Agreement either perfonjl or common, fo that taking Poffeflion was in it fclf the only way of getting an original Property, as
well from the Beginning as at t.Ki.s Day. ^od enim nullius
eft,
id ratione naturali occupanti conceditur, fay the La\vyers, Digeft-.
]. xli. tit. I. leg. 3.
princip. But if ieveral perfons feize upon one thing in comftion without an Owntr, and part it alike, that
Divifion will then be, in relation to every ons of thofe who make up that Multitude, the original Title of their Acquifition, /. e.
the immedi.ite Foundation of that particular Right, which he hath acquired by what hath happen'd to him, and to which Jic had
before only a common Right. Mr. Titius'^ Obferv.
291. onPufend.
*
What our Author means by, ^iprimus eadem corporaliter apprehendijfet animo, Sec. he will explain himfelf in . 8, g.
Yet
We may obferve with Mr. Titius, that taking Pofleflion aftually (Occupatio) is not always abfolutely neceflary to acquire a thing
that belongs to no body. 'Tis only a means to let all others know, that we have an Intention to appropriate fuch a thing. In-
deed, that which properly makes the Right of the firft Occupyer is, that he makes known to others his defign to feize upon z
thing. If then he declares his Will by fome other Aft, as iigni/icative, or if others have openly renounced with refpeft to him
the Bight which they had to any thing which belong'd no more to hun than to them, he nuy then acquire the original Pro-
perty without any aftual polTeflion. Obferv- on Pufend. 292 and in Lauterb. 1 10. We may alfo add, that he mull be inclined to
tike what he declares his defign to feize on, otherwife the boundlefs Covetoufnefs of moft Men will render his Right unprofita-
ble to others, and be a Foundation for perpetual Difputes and Quarrels. In fine, the Notion which I have laid down concerning
the exterior Aft, which is neceflary to feize on a thing, fo that we may acquire fuch a Right to it as may e.xclude the Claims of
all others ; this Notion, I fay, is not altogether new. I learn from Mr. Noodt, Probabilia Juris,
1. ii. c. 6. That among the Anti-
ents, as alfo the old Raman Lawyers, there were feveral of the moft famous who were exaftly of the fame Opinion, tho' none
took notice of it before this judicious and quick fighted Lawyer.
3 This Grammatical Remark, that the Latin word occupare, i.e. to occupy or poffefs, often fignifies/r^^cMW or to prevent
others, m^.ght have been fpared by our Author.
We mull put among Immoveables, firft of all. Space, which is in its own Nature altogether immoveable. We may divide
it into Common and Particular. The firft is publick places, as Markets, Temples, Theatres, great Roads, k^c. The other is that
which is perpendicular under the Sun, from a particular Poflisflion of Lines drawn, as well from the Center of the Earth to the
Surface, as from the Surface to the Heaven. Every one hath a Right to raife a Building under the Sun, as high as he will, and
nothing may hinder him but that he may carry it in a direft Line as far as the Orb of the Moon ; and likewife as much from
thence, if we may fuppofe that Planet habitable. But if we may dig as deep as we will, we muft not go farther than the Center
of the Earth, becaufe what is beyond, in refpeft of us, belongs to the Antipodes, although the Civil Laws of fome Countries give
fo the King's Treafury whatever is found in the Lands of private Men, at any Depth greater than the Plough-fhare reaches. We
muft alfo farther obferve always, that perpendicular Lines may be drawn from the Surface of the Sun as well upwards as do\*h-
wards, and lo as my Neighbour may not lawfully raife a Building which bv any way may anfwer direftly to my Sun, although
3l be not at all fu; ported, but born upon Beams laid in an Horizontal Line ; fo likewife neither can I in my turn raife a Pyramid
whofe Sides and Foundation extend beyond my Space, cfpeciaUy if there be no Agreement about it between my Neighbour and
my felt. After Space comes the Subllance of the Earth, which we call the Ground, fuch as the places for Building, Meadows,
Fields, and Vineyards. We may next account for things immoveable, whatever flicks faft to the Surface of the Earth ; cither by
Nature, as the Trees; or by Man's Labour, as Houfes and other Buildings j although thefe fort of things may be fever'd and be-
come Moveables. Such are alfo not only Wind-mills, whofe Foundation is faften'd to the Earth, but alfo Water-mills ; for tho'
they may be carried about, they can't be made ufe of without fome Anchor or Stake, which is firft fixed in the Ground. What-
e\er alfo is fattened to Houfes or other Buildings, as what is joined together with Iron, Lead, Plaifter, or otherwife for a perpe-
tual Continuance, is alio reputed immoveable. Things moveable are confequently all things that are feparated from the Earth
and Water ;
whether they have been loofened from it, as Trees fall'n or cut down. Fruits fall'n or gather'd. Stones dugout of the
Quarries ; or are naturally feparated as living Creatures. There are two forts of things Moveable; the one fuch as live and move
cf themfelves, and they are call'd living Moveables, or living Creatures; others are inanimate, and may be called dead Move-
ables. I have taken all this partly out of the Elements of
Jurifpr. Univerfal. of this Author, p. 87,
88. and partly out of the Civil
Laws of Mr. );7OT.iA. Prrf'/zw. tit.
3. Seft. i. .
4,
y^. The Roman Lawyers often calllmmoveables, .^f;, ^<Fyi)//y?/;//. Labi*
fcribit, cdiBum cedilium Curiiliuvi de venditionibus rerumejfe, tamearum, quafoli funt, quam earum, quit mobiles, aut
fe
movtntes,
I^geft. 1. xxi. tit. I . De JEdilitio Ediiio, &c. leg.
i . ^. i . It would be-too long for me to recite here the Other Paflages of Lawyer*
.'o fliew pariicularlv what tilings ihcy comprehend under the Name of Immoveables.
But
Chap. YL
Of
Occupancy;
3S7
But when any number of Men jointly pofl'efs
themfelves of a Traft of Land, this Occupancy is
wont to be made either l>y the Whole, or by Par-
ceh
^
.
The former happens, when Men in an united
Body feize on feme dcfolate Region, encompafs'd
with certain Bounds, either by Nature, or by hu-
man Appointment. The feveral Parcels of which
Region are either granted to the particular Mem-
bers of the Community, to take and to hold as
each fliall think fit (a Method but rarely praiftifed)
or
what feems more convenient for the Prevention
of
Qiiarrels and DiTputeSj are allotted to every
Perlon by publick Deiignation. For that a pro-
mifcuous Occupancy is apt to breed Confufion, we
may obferve from that Defcription which
''
Livy
gives us oi: Ro77ie, Forma U)bis erat eccupata magis
qtiam divif.t Jimilis ; Such zvas the Appearance
of
the
City, as
if
it had been
firji
pojjtfs'd rather by Occupancy
than by a regular
Divifion. Tacitus and C^far will
furnifh us with Inftances. The former reports of
the antient Germans to this Purpofe
*^
; Such a num-
ber
of
ALn divei/ing together (for G)otins reads Vicos,
not Vices) occupy or
p!>f}efs fuch a Portion
of Land,
which they afterwards parcel out into private Shares,
according to the IVorth and
Efleem of
particular Per-
fms ;
the
vafi
extent
of
the Country making
thefe Par-
titions eafy and praEiicable. They change their arable
Ground every Tear, and are never at a lofs on this ac-
count. So likewife dvfar tells us of the Suevi
^
,
T'hey have an hundred Cantons,
from each
of
"which
they draw every Tear a thoufand Men for the Cami-~
fervice ;
the reft keep at htme, and till the Ground
for
themjelves, and
for their abfent Friends. The next
Tear they relieve each other
; tlcfe who ferv'd in the
Army retu> n to take care
of
the Land ; and thofe who
tarried behind lift themfelves
for the Wars. Thus they
never interrupt either the
Bufmefs of Husbandry, or the
Ufe
and DifcipUne
of
Arms, But there is no fuch
thing as feparate or private Fields known among thetn
;
nor are they allowed to inhabit any one Place longer
than the Space
of
a Tear. And again
"
fpeaking of
the German Nations in common
; No Perfn, fays
he, hath any certain Quantity
of
Land, any fettled or
proper Boundaries. But the Princes and Magiflrates
every T ar
afpgn
the feveral bribes their Re/idence, in
what Place, and to what Extent they judge conveni-
ent
;
and, the Tear after, force them to remove to a
new Seat. The Defign of which Iiiftitution was,
no doubt, to preferve the antient Simplicity of
Life, fo unacquainted with Avarice and with Lux-
ury. We find Horace alluding to this Cuflora in
Lib. in. Od. xxiv. ver.
9,
&c.
Campeflres melius Scytha
(
Quorum plauftra vagas rite trahunt domos
)
Vivunt, &
rigidi Geta :
See Grot. 1. ii. c. 2. f.
4.
>
Lib. v. in fin.
'
German, c. 26.
^
De Bell. G.1II. I.iv. c. i.
^
Lib. vi. c. 22.
f
Of the Lihabit.mts of the Ifland Liparc, fee Diodor. 5it. I. v. c. 9. p. 292. B. Edit. Rhoiom. The fame Author, I. v. c.
34. p. 310.
3
n
.
attributes to the Vaccanns a more ftrifl; kind of Communion,
"
The Nation of the Vaccaans,
Jufs he, divide their Land yearly
" mto fo many Partitions, in order to the tilling it : The Fruit and Produft they bring into a common Stock, out of which they
" affign every Man his Share. If the Countrymen imbezzle any Part, it is a capital Crime. See likewife 1. v. c. 4;.
Ibid. c.
45.
p. 320. D. Of the Commonwealth of the Punchteans. So too the Apahhita labour for the common, and each Houfholder, ac-
cording to the Number of his Family, received every full Moon his Proportion out of the publick Store- houfe. Vid. Rochefort.
Defcript. Antillar. Part H. c. 8. n. 8. Comp. Grot. 1. ii. c. 3. f
4.
e
Bio
Chryfiftom.
Orat. 31. in Rhodiac
"
The whole-
" Country
belongs to the civil State j yet this doth not in the lead hinder, but that every Man is Lord of his own Poffeffions.
Sea.
1
5. Dt- rer. divif.
>>
Vid.
Conftantin. I'Empereur Baba Kama, c. 7. f. 7. Add Silden de
J.
N- & G. fee. Heb. 1. vi,
c. ! 1.
'
De L. L. 1. viii.
p.
91
5. C. Edit. J'Fech.
"
Comp. f. 14. Inflit.i\i.
Tit.
<^
Lib. xi. c. 5.
'
Vid. 1. xlvii. t. 2.
Digeji. De Furtis, 1. xxvi. & lib. xl. t. i. ]. v. f. 3.
? Lib. viii. Li.D. Famil. ercifcunda.
^
Obferv.
4,
z.
'
Leg.
55.
t. i.
Lib. xli. D- de A. R. D-
^
Vid. Conjlitut. Frederic. \\. 1. ii. feud. t. 27. f. 5. S/ quis rufticus.
'
Lib. v. c. 3. in Verr.
"*
Cyro-
fced.\.\. initio. '' Cornel. Nep. Alcibiad. c. 1 1 . 7^;(/?;>, 1. xli. c. 3. Tacit. Ar\ni\.\.\\. c. 2. Sueton. Caligul. 1^.
"
Laconick
Chalcondil. 1. iii. p PUn. Panegyr. " Thefe were tiie Arts and Exercifes in which their future Generals were train'd for
"
their Country's Service ; to contend with the fvvifter Beafts in Speed, with the bolder in Strength, with the more cunning in
"
Policy and Craft : Nor was it look'd on as an inconfiderabic Ornament and Triumph of Peace, to remove from the Field the
"
Inroads of the favage Herd, and to deliver, as it were, from a Siege the Labours of the Countrymen.
Mr. Barb, NoTES on
. v;
51
The Words of the Digefts are, Pavonum quoque iff columbarum /era natura ejl. See alfo
Digeft.
1. x\i. t. i. leg.
5. . 5.
&
Dim. Gothofrcd. upon that place of the Inftitutes.
* Gallinamm
(sf anjerum non e/ifera natura, idque ex eo pojfitmus intelligere, <}uod alia funt
galUnte, quas feras vocamus, item
lii funt anferes, qua
f
eras appellamus. Ibid. . 16.
^ Apium quoque
fera natura
eft.
Itaque, qute in arbore tua confedirinti antequam a te alveo includantur, non fHagis tua intelli-
guntur ejje, quurri volucres, qua in arbore tua nidum fecerint. Ibid. . 14. Szz Hieron.
Magii Mifcell. 1. i. c. 3.
* The Law is, Nee intereft, feras beftias l^ volucres utrum in fuofundo
quis capiat, an in alieno. Ibid,
J.
12.
'
ilme qui alisnumfundum ingreditur venandi aut accupandi gratia,-potift a Domino,
fi
ispr^fvidtrit, prohiberi ne ingrtdiatur. Ibid.
ing-
590
Of
Occupancy.
B
OOK IV.
ing the different acceptations of thofe Terms Jus
Gentium, or the Law
of
Natiuns
*
.
But t'arther, it is very probable, that in many
places this Right was conferr'd on Princes by the
voluntary Motion and Aft of the People'' .
For
iince there was a Neceffity of affigning them foroe
Advantages for the fiipporting their Dignity with
a fufficient Train and Splendor ; it was wifely con-
fider'd, that 'twould be moft convenient to allot
them fuch things as might be given v/ithout the
Damage or Prejudice of any Man : And of this
kind are all thofe in v/hich no other Perfon can yet
claim a Property
"
.
VII. But fuch Laws as thcfe did not, flriftly
fpeaking, confer on Princes the Dominion over wild
Beads, but only a Right, by virtue of which they
alone fhoiild
afterwards make them their Property,
by feizing and poirefling them. Which Right, ne-
verthelefs, had this efteft in common with Domini-
on, that in cafe any other Perfon had illegally taken
tne faid Beafts, they might be chaileng'd at his
Hands. For it doth not fecm reafonable to admit
the Opinion of fome, who tell us, that even betove
actual Occupancy the Law might fix the Domini-
on of thefe things, notning more being required to-
wards the producing of Dominion than a legal Ap-
pointment. Thus much indeed the Law of any
Country may effeft, that a Dominion already efta-
blifhed over things fliall pafs from one Subjeft to
another, without any antecedent Aft of the Parties.
But the Law alone is not fufficient to introduce o-
riginally a Dominion over fuch things as iiave not
yet been aftually brought under the Power of
Men : But there is requir'd farther fome corporal
Aftion ; efpecially as to the Pofleilion of living
Creatures. But now the firft conflituting Domi-
nion, and the preferving it after it hath been once
ccnltituted, are different things.
Some again there are who affert, that Prohibi-
tions of this Nature by civil Ordinances only ftop
the Right of taking Game, not of keeping what
hath been already taker. For ttxo things, they fay,
there were id.ich the Laiu
of
Nation allowed with re-
ference to wild Beafts : Firft, That all Men (hould en-
joy the lil/etty
if
Hunting : And Secondly, T'hat the
Dominion
of
thefe Beafts Jhould be acquired by the way
of
Occupaney. "The former
cf
which Privileges feems in
this cafe to be refhaind, but by m means the latter.
Whence if
a Perfon, who was forbidden to hunt, JI:all
neverthelefs have fellow'd the Chafe, and fucceeded in
it, any Game found upon hint may be forced away
;
mt becaufe he had net made it his own, but in way
of
Pintijhment he was unworthy to
poffefs it. In the fame
manner altcgether, as Nets, Spe.irs, and other hunting
In/lruments are feized in fuch Mens Hands ; tho' none
can deny thefe to be their real Property. Fur which Rea-
fon, if
Game, thus taken contrary to Law, be gizien in
charge to another as a matter
cf
h
tieft T'ruft, it may
mt be forcibly
challenged
froin hint by the Mngiflrate :
As it might be, were it indeed flelen, fome other Perfon
being the jufl Owner
of
it. But the Prince cannot be
ca/i'd the Owner
of thefe Beafts, before he hath aciuaUy
caugit them ; and therefore he, who hunts ccatrary to
the Royal Prohibition, doth not cmnmit "Theft, mr take
away the Goods
of
another ; but only acquires a thing
which another had a privative or exchftve Right
of
acquiring ; and therefore he may be punijb'd; but asfor
the thing which he thus g.t iuto his
P'fffft:
n, it ought
not to be look'd m as matter
of Theft, or to be challen-
ged accordingly
^
^ But indeed 'tis very fimple to
imagine, that a' Man is by any natural NccelTity
made Proprietor of the things which he firft lays his
Hands on
;
we having already fliewn, that this
Right is grounded on the Strength of a previous
Covenant
'
. Therefore if a Prince fliall forbid his
Subjefts to ufe this Method of Acquilirion, in re-
gard to fome particular things ; their being the firft
Takers fhall avail thetri nothing in order to the
obtaining of Dominion over them. And that Law
of the Prince hath fo far the Effeft of Property, as
that after it the Subject ought not to lay hands on
the faid Beafts
; or it he doth {o, he cannot there-
by make them his own. Nor doth it follow, that
becaufe 'tis not ufual in thefe Cafes to challenge the
Flefh, efpecially from a third Perfon, when per-
haps it is ready to corrupt
i
therefore the unlawful
Hunter was the juft Proprietor of it. Again, tak-
ing muft notprefently be conftrued acquiring: The
former bing a bare natural Aftion, whereas the
latter includes a moral Effeft. It may rather be
faid, that the Pofiiion of thcfe Men is a plain
Contradiftion ; for thus it runs, The Right
of
Hunting belongs to Princes alone, and
if
any private
Perfon
takes Game, he thereby acquires the Dominion
of
it ;
that is. Princes alone may ufe that means
by which the lawful Dominion over wild Beafts is
gain'd and eftablifli'd ; and yet another Perfon
may acquire the fame Dominion, whilft he cannot
lawfully apply the fame means.
But what if it fhould be demanded. Who tlien is
the Proprietor of Game thus taken contrary to Law?
We have abfolutely denied the Taker himfelf to be
fo
~
; and as for the Prince, how could he fix a
Property in the Game, when he was not concern'd
in the Sport i It feems reafonable in this Cafe to af-
firm, that here the Hunter, tho' in a very unaccept-
able way of Service, labours for the Prince ; and.
confequently, by taking the Game, he makes it the
Prince's, in the fame manner as other Huntfmcn,
who aft by a Royal Commiffion and Deputation.
'
Vid. Grot. 1. ii. c. 3. f.
5.
">
Vid. Grot. 1. ii. c. 8. f.
;
" Of the Hunting allowed the Tmwians under their
Ynca!, conlult at your Pleafurc Garcilajpj de !a Vega, Comm. Reg. I. vi. c. 6.
^ Vid. Gudelin. de jure noviflimo, 1. ii. c. 2.
and from him Arnold, yinn. ad Seft. 13. Inflit. Be rer- divif. Ziegler upon Grotius (1. ii. c. 2. f.
5.)
fpeaks much to the fame
Purpofe ;
"
That a Law may indeed hinder the taking of Game, but that no Law can hinder if, when taken, from immediately
"
paffing into Property, as acquired. For that the Right of prohibiting is confiftent enough with this Right o'i
Acquifition. That,
'
whether a Man by taking Game acquires it as his Property, and whether a Man ought to make ufe of this way of acquiring, are
"
two different Queftions. That, as to the former, the Sovereign hath no Authority to interpofe : Becaufe, as he cannot make
"
thofe things become fome body's, which are no body's, or thefe to be poifeflcd which are not polTeifed {1. iii. f. 1^. J). De
"
adquir.
peff.)
fo neither can he hinder Acquifitien, or caufc that thofe things which are already acquired, fliall not be acquired.
"
But that, as to the latter of thefe Queilions,' the Sovereign is free to enaft what he pleafeth. Vid. D. 1. 41. tit. 2. De
acquirend. vel amittend. pojfejf.
Mr. Barb. NOTES on .
vii.
'
We have proved the contrary, c. 4. . 4. n.
4.
^
This Suppofition, to which our Author is obliged to have recourfe, and which does not appear to be the lead fatisfaftory, is
fufficient almoft to {hew that he reafons upon falfe Principles, and that he knows not how to keep himfelf from yielding to what
wc have faid in the Note before quoted.
It
I HAP. VI. Of
Occupancy.
It is,
moreover,
certain, that a Stranger likewife
is
bound by fuch Conflitutions as thefe j the' per-
haps
in his own Country the Liberty of Hunting
may
be univerfallj;
allowed. Forafmuch as this is
a
neceflary Law ot all States, without which their
inward
Peace and Tranquillity cannot be fecured,
that he,
who enters upon the Territories of another
Prince, tho' only for a time, ought fo long to con-
form to the Cuftoms and Orders of the Place ; at
leaft to all thofe, the Reafon of which will hold
good againft him as well as againft others, and from
which the Legiflator hath not peculiarly exempted
Foreigners
'
. But, on the whole, tis the Admoni-
tion
of wife Men, that Statutes of this kind ought
with great Moderation to be put in force ; unlefs
fome particular Aggravation in the Offender de-
ferves a greater Severity of Proceedings
*"
.
Vin. We are then faid to have occupied any
thing,
when we actually take pofl'eflion of it ; and
this
commencech at our joining Body to Body, ei-
ther
immediately, or by a proper Inftrument. The
regular Courfe therefore is, that the Occupancy of
Moveables be made with the Hands ; the Occu-
pancy of Soil with the Feet, together with an In-
tention of manuring it, and the Aftion of fctting
Boundaries to it, whether exaftly, or with a wi-
der Liberty. But the bare feeing a thing, or the
knowing where it is, is not judg d a fufficient Ti-
tle of Pofleflion
'
, Thus Ceres fpcaks in Ovid,
Metamorfh. \. v- ver.
518, 515).
En qtiafita diu tandem mihi nata rcperta
eft.
. 5,-
Scire ubi
fit,
reperijje vocas.
Vid. 1. xix. t. 1 . 1. I 5. f.
1
4. D. De aSi. empt. tf vendit.
'
Euterpe, p.
81. \L&i. H. Steph.
But if it hath fluck long upon my Banks,
and the
Trees which it brought with it have there
taken
Root, from that time forward it lliall be deem'd an
acquifition to ray Eflate. Whence 'tis clear,
that
the Owner of the loft Fragm.ent ought to
have
brought it back again to its former Place,
before
it was incorporated with my Land, if he intend
to
refume the Property of it. When 'tis uncertain
what and how much hath been wafted from ano-
ther's Soil, the Sutferer is hereby hindered from
putting in his Claim to the Increment
; which yet,
according to natural Law, doth not accrue to him
who owns the Ground where it faftens, but to the
People who are Sovereigns of the River.
For 'tis
in the higheft manner agreeable to Reafon, that
not only the Water of a common River, and the
things contained in it fhould be piiblick, but like-
wife the Channel, and the Banks, and whatever Im-
provement either that or thefe happen to gain. For
it feems very improper to fay, that the Channel,
confider'd in it felt, is a part of the adjacent Land^
but that it is look'd on as publick, io long as it's
cover'd with the publick River ; which being once
remov'd, it becomes private, according to its pri-
mitive Nature : As if 'twas only a Burthen or Ser-
vice laid on the Grounds of particular Men, that
they fhould grant the River a Palfage thro' them.
If a River forfakes its Channel, or any Part of
it, and cuts out a new way, fince the latter is
taken from the oppofire Land, the former deferred
Channel ought in Equity to be adjudg'd to the
Owner of the Land, who now fufters, to comfort
him for his Lofs : And in cafe the River forfake
likewife this new Pafl'age, the Ground fliall then
return to the antient Proprietor, and not to thofe
who poffefs the Country about it. Bur wharever is
determin'd in rhofc Cafes of the Increments left
by the Current, and ot the Alteration of Channels
;
this, no Doubt, is but juft, that the Burthen which
before lay on any Ground, fhould be leflen'd in
proportion to what it lofech by fuch an Accident.
Which Point, as
"^
Hircdctiis informs us, was fet-
tled amongll the Egyptians by a particular Law.
It is not lefs equitable, that Land drown'd by a
Flood fhould belong to the former Owner, either
when the Water
+
is gone oft' without trouble, by
one violent outlet, or by flow degrees
; or when
his Pains and Labour have cut out a Paftiige for it.
i)ut 'twill be ask'd. To v^hom [hall the new Bulk
of
Water belong, 'till fuch time as the Land by draining
foall be recover d ? Here we judge it neceflary to
enquire, Whether the drown'd Land hath palled
into the Form of a Lake, or a Fen, or whether it
''
Geagraph. 1. xvi. p. 52S. Edit. Ge/iev. Ca/kui.
yir.EAK^. NOTES on ^.xn.
form the Body of a State. It does not neverthelefs follow from hence, as Mr. //irr/w affirms, that the Right whkh a SubjeA
mav have to appropriate fuch things as he finds without an Owner, within the Bounds of the State, as the firll Occupyer, does
not' depend either upon the tacit or exprefs Will of the Sovereign. After what manner foever the State is fcrm'J, the whole Coun-
try belongs to all the Body ; and Co it follows, that the Laws of Union extend fo far as to give the People, or them that reprefent
them, Right to difpofc in divers manners the Goods of each particular Perfon, as the publick Good requires. See 1. viii. c.
5.
This is fo much the move certain at prefent, becaufe our Kings have for a long time enjoyed this Right by the confent of the People.
*
The Words of the Ronwi Law are ; i^iod
Ji
vis fiuminis de tuo pnsdio partem ullquam detrdxerit,
(J vicirii pradio attulerit,
pilam
eft
cam tu<vn permaiicre. Plane
ft
longiore tempore fiindo -jidni tui haferit, arbi>refque, quaifecum traxit, in eumfundum radices
fgerint ; ex eo tempore videntur vicinifitndo acquifitie effc-
(It ought to be read, Videtur adquifita, as the Florence MSS. has
it.) See Tw/m upon the Place, InJIit.
1. ii. c. i.
i-
21. ^nd
Digeft.
1. xli. leg./. .2. andl.xxxix. tit. 2. De damm infeao,
&c.
leg. g. . 2.
+
Thefe .\lluvi0n5 happen for the mod part thro' the Negligence of the Proprietors, who take not fufficient Care to fecure the
Banks of the Rivers bordering upon their PoffelTions. The Roman Law did not relk.re Lands overflowed to their former Owner,
unlcfs they had not changed their Form,
('.
e. when they were covered with Water for a fmall time, without making a true Chan-
nel. This Mr. A'^ii.// proves contrary to the Opinion of the Lawyers in his Probab. Jurii, 1. i. c. i.
is
Chap.VIIL Of
Right over,
&c.
is
added to the Channel of a pnblick River ? In
the
former Cafe, the Lake or the Fen fliall for
ever
appertain to the Owner of the Ground ;
and
in like manner in the latter Cafe ^
, for fo
long
time as he fhall entertain any Defign of re-
ducing
the Current to its former Banks. As for
private
Rivers, which give me in one Place as
much
as they rob me of in another, the Matter
is clear beyond Difpute. But what if a River
belonging
to my private Eftate fliall make it felf
a new
Channel through the Ground of another
Man,
fhall that Pare of it, which covers my
Neighbour's Ground, belong to me, or to him ?
In our Opinion Judgment ought to be given for
the latter. Yet Itill I retain a Right of turning the
Current to its proper Place. But it I refufe thus
to bring back the Current to my own Demefns,
I cannot oblige the other Party to pay for the
Water, nor fo much as pretend that it ought to
be common to us both in that Part. For thofe
things which are our own barely on account of
their being contain'd within our Limits or Space,
and which therefore fetm Acceffions to the faid
Space
*
, when they once happen to get out of it,
are either to be recalTd by our Care and Diligence,
or elfe to pafs out of our Propriety, and to be rec-
koned henceforward the natural Increments of the
new Space to which they are removed. But in all
thefe Cafes the pofitive
Laws of different Govern-
ments may varioufly
determine,
as fhall aopear
convenient. In ^ggenus
Uvbicus's Comment
we
find the following Rules laid down, // this be done
in Lands taken by Occupancy,
whatever the Force
of
the Water bath
flulen away, no one may have the pri-
vilege
of
recovering : which
Coufideration lays a Ne-
ceffity on Men to keep tip their Banks, yet
fo as not to
endamage their Neighbour. But
if
it be done in Lands
that have been meted out, and
affgn'd in Portions to
diftinB Owners, then the Pojfejfor jj^all
lofe nothing
;
becaife every one knows the exact Form and Dimen-
fions of
what was allotted
for his Share in the Hundred
to which he belongs.
Concerning the Lands which border on the Fo,
Cajjius thus determines
; Whatever the Water
wafieth
away in its ordinary Channel, the
PoJJtfjor fliall lofe :
Becaufe he ought to defend his own Bank, without pre-
judicing ether Mens Property. But
if the Flood
fall
down with a greater Force,
fo
as to alter its Channel,
every Man fliall regain his own
Meaftre ; becaufe 'tis
manifefl
the Damage happen d not through the NegleEl
of
the Puffefjor, but through the Violence
of the 7or~
rent.
If
in this Cafe the Water
form an
Iflet, it jball
be his Property from whofe Land it was taken
; but
if
it was bmrowed from out
of feveral Eflates together,
each Perfon fhall receive his own. Comp. Grot, 1. viii.
c. 8. f. 8, c^c. and Ziegler ad diB. he.
Mr. Barb. NOTES on , xii.
5
Our Author inconfiderately mentions Lakes .-(nd Fens in this Place.
*
See Mr. Tbsmafius's Jurifprud. Divin. 1. ii. c. lo. ^. 151, We-
CHAP. VIII.
Of
Right over other Mens Goods or
Poffejfions.
I. A
Man may have a Right over other Mens
Goods diverfe ways.
II. How many forts
of
Right we have over others
Goods.
in. The Right
of
holding in Fee.
IV. The Right
of
a Ground-plat.
V. The Right
of
an honefl Poffeffur,
I.
Q
U C H is the force of Property or Dominion,
O that the Proprietor alone hath Power to dif-
pofe of his own Goods
; and all others are bound
to abftain from them. Yet inafmuch as the Divi-
fion of things amongfl: Men was not introduc'd
with this Defign, That all Communication of
Goods fliould thereupon ceafc ; it hence comes
to pafs, not only that we are often by the Law of
Humanity engaged to grant others the Subftance
or the Ufe of our own PolVefiions, but likewife that
others may acquire a
'
Right to them, either per-
tedtor xmperfeft, and confequently may procure by
To whom add Stlden, de
Jur. Nat. 3" Gent. 1. vi. c. 2.
VI. Services, what ; and
of how many forts ?
vii. The Ufe with the
Profits,
vm. The bare
Ufe.
IX. The Habitation.
X. The Works
of
Servants.
XI. The Services
of
City Eflates.
XII. And
of
Country Farms.
a good and juft Tide fome Benefit or
Advantage
from our Peculiar.
We fhall here obferve in fhort, how many
ways this may happen
; the whole Subjed being
fo largely explain'd by the Expolltors of the Civil
Law
^
.
II. The chief Rights over the things of others,
accruing to Perfons who are not the Proprietors,
are by fome reduc'd to thefe five : The Right of
holding in Fee ; the Right
of
Ground-plats ; the
Right
of Poffejfion upon an honefl Prefumption ;
Pledges
or Mortgages,
and Services
'
.
Mr. Barb. NOTES on Chap. VIIL .
i, 11.
_
' The Author exprefles himfelf more dearly in his Abridgment of the Duties of a Man and Citizen, 1. i. c. 12. . 8. thus;
either by fome Agreement, or fome other way, a Right greater or lefs to obtain fome certain Profit or Advantage from a thing that
belongs to us, i^c.
' We may add the Right
of Fedtj, of which we Ihall fpeak in Note ult. of this Chapter. I fhall alfo by and by fliew that
Mr. Ikrtiui hath taken notice of this plain Omidion.
III. The
4o6
Of
Right oiicr other
Book
IV.
III. The
'
Right of holding in Fee, which is
granted to another by the Owner of an immove-
able thing, upon condition of paying fuch a re-
lerv'd Acknowledgment, impowers the Tenant in
Fee, not only to uie and enjoy the faid thing after
the fnlleft manner, but likewife to difpofe of it
;
though not without fome little Rellraint as to the
Point of Alienation. The particular Contrad, by
virtue of which this fort of Right is immediately
fettled, can be rank'd neither under Bu)ing and
Selling, nor under Letting and Hiring
; fince it doth
not confer an abfolute Property on the other Par-
ty, and yet a much greater Degree than in ordi-
nary Leafes ; but efpecialiy fince the referv'd Ac-
knowledgment is (commonly fpeaking) far lei's
confiderable than the Rent ot vulgar Tenants.
As the Pvules obferv'd either by common Law,
or by particular Agreement, in the renewing of
this Contraft, in the paying of the fettled Rent,
in the Alienation of the Fee, and in the Conti-
nuance of it, the Civilians aflord us large In-
formation.
IV. He that either upon paying fuch a Fine, or
engaging for fuch a certain Rent, hath obtain'd
il:e
'
Right
of
a Griund-PLt, may enjoy the fame,
and make any Difpofal or Conveyance of it, as
much as if he were the firil Proprietor
^
; and con-
fequeritiy may claim the Lordfliip, though not of
the Soil itfelf, yet of all that is built upon it. It
was otherwife in the former Cafe ; where even
pYofituble Dominion of the Soil belongs to the Te-
n.int of the Fue : The Reafon of introducing fuch
a Right was this ; That Perfons were willing to
admit Strangers upon their Land, yet fo as not
to lofe any thing in the Bulk and Dimenfions of
it. Therefore they made a Grant of the Surface,
referving the main Soil to themfelves, and rcquir-
See the Expofitors of the Civil Law, adt. 6. I. 2. D. De Publicitna in rem aSlione.
'^
Lib. v. c. lo. f.
13, &c.
'
Vid. Grot. 1. i. c. i. f. 4. Add. 1. viii. t. 2. leg.
32.
f. i. in
fin.
D. Defervit. pned. icrb.
Mr. Barb. NOf ES on . v, vi, vii.
'
See 1. ii. c. 6. n. 4.
and
5.
aforegoing, and 1. iv. c. 1 2. . 9.
and 1. v. c. 13. ^. 6. as alfo Mr. Dnumafb Civil Laws in their
natural Order, Part L 1. iii. t. 6. Sedt. 4. ^. 1.
'
The Roman Lawyers fay. That the Nature of Servitude confifts not in doing fomething in favour of another, but in fuiFer-
ing or not doing certain things. Servitutum non ea natura
eft,
ut aliquidf.iciat quis, veluti viridia tollat, aut amceniorem
frofpeclum
pneflet, aut in hoe, ut infuo pingat ; fed
ut aliquid patiatur aut nonfacial, Digeil. 1. viii. tit. i . De Servitutibtis, leg.
1
5. . 1
.
^
The Words of the Law are, Servitutes,autperfonarumfunt, utufus,lS ufusfruTtus ; aut rerum, ut fcrvitutes ruflicorum pra-
diorum iff urhanorum, Digeft. ibid. leg. 1
.
'
UjuifruHus
eft
jus alienis rebus utcndil^fruendifalva rerum fubftantid,
Digeft. I. vii. t. i. Be ufufruSiu, l^ quemadmodum quis
utalur, fruatur, leg. i. and
Inftit.
1. ii. t.
4.
princip. We ought to obferve, that Ufufruct or Ufe for the Profits, and other fort of
Servitudes are the Rights which we enjoy gratuitoufly : For if we pay an Annual Rent, 'twill be then a kind of Letting or Hiring.
2
See 1. vi. c. z. . 8. following.
^
Conftituitur adhuc ufusfruBus, ij in judiciofamilite ercifcunda, ^ communi dividundo,
ft
judex alii proprietatem adjudicaveriti
alii ufumfruSium, Digeft. 1. vii. t. 1. De ufufruBu, i^c- 1. vi. . i.
^ VfuifruHus pluribus modis conftituitur, ut ecce
fi
legatus fuerit, fed IS propriet.is deduBt ufufruclu legari
poteft, ut apud htere-
dem maneat ufusfruBus, ibid, princ. Item alii ufumfruBum, alii deduho eofundum tegat e
foteft,
Inftit. 1. ii. tit. i . . i . So a Teftator
may bequeath a Property, and leave an Ufufruft, either to an Ufufrufturer or to his Heir, or any other Legatee, as alfo he may
make a Referve of his Ufufruft for a Portion, a Gift among Survivors, to be fold, exchanged, pafied away, or other things of
like nature. :^ifquis rem aliquam donando, vel in dote?n dando, vel vendendo ufumfruBiim ejus retin-ierit. Sec. Cod. 1. viii. t.
54. De
Donationibus, leg. 28. See concerning this whole Matter Mr. Daumafi Civil Laws in their natund Order, Part. I. 1. i. t. n
.
' Et
fine tefttimento autem,
fi
quis velit ufumfruBum lonftituere, paStionibus
fs"
ftipulationibus id efficere poteft, Digeft. 1. vii. t. i
.
leg. 3. princip;
<>
As an Houfe, Land, a Slave, a Beaft, i^c. But Wine, Oil, Bread-Corn, Money, l^c. are not capable of an Ufufruifl.
Conftituitur autem ujusfruBus non tantutn infundo iS ledibus, verum etiam in fervis i^jur.entis, ijf ceteris rebus, exceptis iis, qua
ufu confumuntur. Nam ha res, tseque naturali ratione, neque civili recipiunt ufuritfruBum ; quo in nutnero funt vinum, tleum,fru7r.er.tum,
veftimenta, quibus pruxima
eft
pecunia numerata. Namque ipjo
ufu afftdua
permutatione quodammodo extinguitur, Inftit. 1. ii. t.
4. . 2.
Trebonianus has very unfitly joined to thefe Habits, as Cujacius has obferved, for they do not confume at all by their Ufe. See
Mr. Noo:{t\ Probab- Juris, 1. ii. c. 4.
and Mr. Thomafius^i Difcourfe, De Pre.'io,
affect, c. i. ^. 18. Medals, and fuch pieces of Mo-
ney as are not current, but are delired for their Antiquity, may be beftowed as an Ufufruft, as appears by the follov.'ing Law
which Wr. Noodt e.tplains learnedly after his mannner in his Obfervations, 1. i. c. 5. NomiJ'm.'itum aureorum vel nrgenteofum -vete-
rum, quibus pro gemmis uti folent, ufusfruclus legari
poteft,
Digeft. 1. vii. tit. i. leg. 28. We may fay the fame things of Piftures
and Statues. Statua iff imaginis ufmnfrucium pojfe relinqui mngis
eft,
quia iff ipfa babent aliquam utilitatem,
fi
quo toco opportune pO'
nantur. Ibid. leg.
41 . The Antient Lawyers do not agree upon this Queftion, Whether we can have the Ufufruft of a thing in-
corporeal, or of a bare Right, as a Permiifion to pafs through another Man's Ground, or to carry Water through it, iifr. As for
my felf I am of Opinion, that if we confider the thing in it felf, without any of the Subtilties oi the Roman Lawyers, there is no
Ditticulty in it, and we may without fcruple aifirm it" For thefe fort of Rights are valuable, a.nd do not pcrilh in the ufmg. Nor
is it necefiary that the Ground of an UfufruS (liould be a fcnfible thing, and really e.xift any %vhere but in the Mind. It is fufii-
cicnt, that 'tis a thing that may be looL'd upon as belonging to any one, and from whence we may receive fome advantage, and
without which itccafes to be as before. Sci alfo Debts owing may be reputed a real, good, and a true Fund.
Will
4o8 Of
Right over other Book
IV.
JVill
7
into this kind of Tenure, and be given in from
labouring in vaini Civil Fruits belong to the
Legacy ; in which cafe the Money or Things are fo
T^emnt for Ufe
and Profit, till the time is laps'd '\
made over to the Legatee, as to be his own ; but
for which the Grant was firft made,
under this neceffary Condition, That he give Secu-
Farciier,
As he who holds a thing in this manner,
rity to the Heir to reftore the like Sum, and the like ought to ufe it like an honeft Man
'5
,
or as be-
things, or the Value of the things, when the Term
comes a good Husband, and fo apply it to that par-
of his Grant is expired. So that the Security here ticular kind of Advantage, which either the Nature
given to the Proprietor doth, as it were, fiioply the of the thing, or the Will of the Proprietor requires;
pl3ce of the real Siibftance.
fo is he likewjfe bound to guard, maintain, and
He that holds the Ufe and Profits
of a thing hath a keep it fafe, and whole
'+
;
as alfo to pay Taxes
'^
Right to claim all the Advantages
proceeding from Dues, and other Burthens, ordinary and extraordi-
if as well natural as civil
*. Yec the RomanLzws nary, at leaft fuch as do not exceed the main Pro-
excepted
^
the IlTue of a
Maid-fervant ;
probably fits. For all thefe Troubles, as well as that of Cul-
on this Reafon, That the defign of granting an- ture and Improvement, neceffarily fall on him who
other the Ufe of our Servants refpefted their Work defires to reap the Benefit and Gain : Nor is it pre-
only, and not their Olf-fpring. As for the other fum'd that any Pcrfon would lay fo grievous a hard-
naiiiral Fruits, they becon,e the Tenants
of Ufe
and fhip on himfelf, as not only to grant another the
Prrfit, by taking or gathering them; that
'
is, when Profits of his Goods orEfiate, but hkewife to referve
he hath feparated them from the Body or Subflance, the Burthens to be difcharg'd at his own Expence.
and laid them by themfelves. Whence it follows, This way of holding is faid to expire at the de--
that the Fruits or Profits, if not yet feparated, be- ceafe of rhe Tenant
'*
;
becaufe, commonly fpeak-
longto the Proprietor; and incafcthe Tf//iJKt/or L//> ing, at the firfl: making fuch a Grant, the Merit
and Profit
dies before he hath gather'd them, they of the Party was confider'd, which cannot defcend
cannot be challengM by his Heir: Though, if it ap- to others. And inafmuch as 'tis a great Burthen
pear that any Pains were fpent, or any Induihy upon a Man to have the Fruirs of his Property pafs
imploy'd
", in bringing the Fruits, to Perfection, flill into other Hands, therefore the Words in thefe
it will then be equitable to admit the Heir to a Grants are to be interpreted in the flreighteft man-
Participation of them ; fo far, at leaft, as to com- net ; fo that if the Form ran thus, to hirn and his
penfate'the Pains oftheDeceas'd, and to hinder him Heirs, it fliall not be extended to the Heirs in a
Mr. Barf. NOTES on
.
vii,
^
^//iji vfusfriiElus, 'tis an Expreffion of the Roman Law,
fed
utilitatis caiifa Jinatus eenfuit,
pqffi
etiam earum rerUm ufum-
frtiBum corijiitui, ut tamen eo nomine hreredi utiliter caveatur. Itaque
ft
pecunice ufusfruBus legatus
fit,
ita datur legatario, ut ejus
fiat, {ff kgatarius fatisiet haredi de tanta ptcunia refiituenda, ft
morietur, aut capitc minuetur. Catera quoque res ita traduntur
legatario, ut ejus
fiant, fed afiimatis his fatijdatur, ut tanta pecutiia reftituatur, quanti hafuerint aflimatte.
^
Ergo fenatus
non fecit quidem earum rerum ufumfruSlum [nee enim potcrit) fed per cautionem
quafi ufumfruSium eonftituit, Inllit. 1. ii. tit.
4. . 2.
See tlic Title of tile
D/fc/?;,
whicli treats, Be ufufruBu earum rcrum qure ufii confumunturvel minuuntur, 1. vii. t.
5.
8
XJfufruau legato, tmnisfruBus reiadfrulluariumpcrtinet, Digeft. 1. vii. tit. i. De ufufrullu, iff quemady quis atatur,fruatur, leg.
7. prin where we may find all the Particulars at length in the rell of this Law and the next. The Ufufruftuary for e.\ample may
fearch for Mines, Quarries, Beds of Chalk, Coal, ijc. which are found in the Ground, of which he has the Profit, although the
Proprietor himfelf knows nothing of them, provided neverthelefs that he do no Damage to the Corn, Trees, Vines, and in a word,
all things ufed in Husbandry, to which the Owner of the Ground has dcfigned it. See Mr. Noodt's Obfervations, 1. i. c.
9. This
able Lawyer in the following Chapter of the fame Work examines how, and by virtue of what the Ufutruduary of the Ground,
where there arc Deer, may appropriate the Profit and Revenue to himfelf. We may read all this in the Original, and withal the
Refleftion which Mr. Bernard makes thereon in his Extrart of the News of the Republick of Letters, April 1706. p. 430, 431.
'
See c. 7. ^. 4. n. I. aforegoing.
'
Is vera ad quern uJ'usfruBus fundi pertinet, non alitcrfruBuum Domimis cffieitur, quam
ft ipfe eos perceperit. Et ideo licet ma-
turisfruBibus, nondum tamen percepti^, decefferit, ad haredes ejus non pertinent, fed Domino proprietatis acquiruntur. Eademfere, if
de eol'j?io dicujitur, Inftit. 1. ii. 1. 1. De rerum divifione.
Sec. .36.
' This is no point of the Roman Law ; but the Saxon Law follows a Maxim fo juft, requiring that in this laft Cafe all the
Fruits fhould belong to their Heirs See Balth. Whernher''s, Element. Jur.
Nat. 5" Gent. chap. xiv. . 42.
'*
For Example, if a Rent commence at the Beginning of the Year, and the Ufufruftuary die in OBober, the Heirs fliall have
the Surmount of the Rent for that time, and the rcll to January following fliall return to the Proprietor. See Digeft. 1. vii. tit. i.
leg. 26, and
:fi.
princip.
'5
Cat'ere autem debet ufufruBuarius -viri boni arbitratu perceptum iri ufumfruBum, hoc
eft
t von detcriorem
fe caufam ufusfruBiis
faBurum, ctetcraquefaBurum, qua: in refuafaeeret, Digeft. L vii. t. 9. ufufruBuarius quemadmodum caveat, leg. i. .3. Debet enim
cmne quod diligens paterfamilias in
fua domofacit {3 ipfefacere-
Ibid. tit. i. De ufufruBu, &c. leg. 6;. mancipiorum quoque ufusfruBus
legato 7ion debet abuti, fed Jecundum conditionet.t eorum uti. Ibid. leg. 15. ^. i. So that the Ufufruftuary may neither mifufe the
Ground, nor impoveriih it, nor change what the Proprietor hath defigned for his bare Diverfion, iho' it be o augment his Revenue.
For Example, he may not cut up the Trees which are planted in a Walk to make himfelf a Garden, or fow it with Corn. Et
fi
forte voluptare fuit predium, viridaria, vel geftntiones, vel deambulaliones arboribus infruBuojis opacas, atque atncenas habens, non
debebit dcjicere, ut forte hortos oiitorios faciat, vel aliud quid, quod ad reditum fpeBat, Ibid. leg. 13. .4.
7"here are feveral Laws
with this Title that m.iy be confulted.
'*
Eum, ad qucm ufusfruBus pertinet, farta teBn fuis fumptibus pr
aft
are debere, exploratijuris
efl.
Cod. 1. iii. tit.
33.
Z)^ ufufruB.
l^
habit, cf miniflerio ferv. leg. 7. This extends to the leaft Reparations, and other necell'ary Expences to improve and preferve
the Goods they have the Profit of. For if the Houfe, for Example, tumble down without the Fault of the Ufufruduary, he fliall
not be obliged to rebuild it. Si qua: vetuflate corruerunt, refieere non eogitur, modica igitur refBio ad eum pertinent, quoniam if
alia onera agnofcit, ufufruBu legato, &c. Digeft. I. vii. t. i . leg. 7. . 2. See
i-
following of the fame Law.
"
Ut putaftipendium, vel tributum, vel falarium, vel alimenta ab ea re rdiBa. See alfo La\v
27. . 3. and Lib. xxxiii. tit. 2.
De ufu & ufufr.
Sec. leg. 28.
'*
Morte q:ioque amitti ufumfruBum, non recipit dubitationem ; eumjusfruendi morte extinguatur, ficuti
fi
quid aliud quod perfona
coharet, Digeft. 1. vii. t. 4. S>uibus vtodis ufusfrtiBus vel
ufu<
amittitur, leg. 3. ^. 3.
This fiath place when the Ufufrudluary dies
before the time his Ufufruft expires, or before the accomplifliment of the Condition, which fliould put an end to it. See Cod.
1. iii. t.
33. De ufufr. l^ habit. Sec. leg. I 2 For the Reafon why a certain or uncertain time is fixed, is only, that the Ufufrudua-
ry, if he lives beyond it, may not preferve his Right ; fo that if he dies before, the general Rule holds in its lull Force as to him.
Farther, our Author ought not to h.avc forgotten another way by which his Ufufrudl may be loft ; and that is, whca the time ot
its Continuance is at an end, or when a certain Condition is to be accomplilked.
fecond
Chap.
VHI. Mens Goods or
Poffejfions.
40p
fecond
Defcent
'7
;
fmce the Property of a thing, fon, who had forfeited the Privilege of a free Sub>
if for ever excluded from the Ule
"^
, is utterly jeft, fhould be flill capable of holding fuch a Right
infignificant :
In which Senfe we are to take Cicero's over the Goods of thofe who were true and lawful
Definition,
Id cujufque proprium
efi,
quo quifqueftui- Members of the Srate.
tur
atque utitur: That's truly the Property oj every To proceed ; this Right, by virtue of feme pub-
Maw,
which he iifeth and enjiys. Hence, if a Lega- lick Law, or of fomc private Covenant, may in a
cy
only for the life and
Profits was left to a publick certain period of time
^5
be loft by Difule fwhich
Community, which in other refpefts may be perpe- alters many things for the worfe) or by ufine; it m
tual,
yet the Roman Laws order'd
'^
,
That the a different manner from the Rules prefcrib'd
-+
;
Grant Jhould expire at the end
0/ a hundred Tears
:
or by impairing the thing, either throuj^h defign'd
As it muft ceafe before, if the State or City be dif- Wickedncfs, or grofs Negleft. The Right is iike-
folv'd
or raz'd by the Violence of an Enemy
'
.
wife extinct, if the thing happen to perifli
'J
;
From
the fame grounds it proceeds, that a Tenure nor doth it revive, though the thing be renewed or
of this kind cannot be alienated
-'
; becaufe at repaired ; by reafon of that ftiitt Interpretation
that rate the Proprietor's Claim might be for ever which this Aff'air demands. For Infiance; // I
fhifted off^ and the thing might pafs to one whom build a Houfe in the fame place -with another 'cuhich I
he would look upon as an Intruder into his Rights
loft
by Fire, it is not jndgd to be the fame a^ the for
-
and
Pofleflions. A grantof LZ/^^Ki /^ro/fj was like- mer. And indeed, fmce the Work muft have put
wife,
according to the Rimanhiw^, made extinft me to confiderable Charges, it would be very hard,
by the two higher degrees of the Capitis diminutio, if I muft raife a Building which on my fide will
or
Disfranchifement of a Citizen
^-
. For as they turn to no account.
were
unwilling to let this Burthen lie on the Pro- Laftly, If either the Proprietor make over his
prietor,
after the Party, in whofe favour it was at Right to the Tenant
^"^
,
or the Tenant refign to
firft
appointed, could receive no benefit from it; fo him, the Ufe and Profit expires; fince a Man cannot
they
judg'd it by no means convenient, that a Per- receive i'friizce from wiiat's his own ; or, becaufe this,
Mr. Barb. NO TES on . vii.
'^
This is proved commonly by this Law of the Code, 1. iii. t.
33. Saticimus s? hujufmodi leg/itum firmum ejje
\_Ji
qidsfundunt,
vel nliam rem cuidam teflamento relinqueret, quatenus ufusfruBus apud haredem maneref] i^ talent ufumfruButn una aim hreredefiniri,
l^ illo moriente, velaliis legitimis modis eum amittente, exfpirare, leg. 14. But 'tis evident, as others have obferved, that he treats
there of the Heir of a Teftator, and not of the Heir of an Ufufrudtuary. See Fimiius upon the Itijlitutes, 1. ii. t. 4. . 3,
and
Mr. Titius upon Lauterbach. Obferv. 225.
'8
This is the Reafon that the Infiitutes give, to fliew how many ways the Right of an Ufufruft may be extinguifhed. Ne
tamen in univerfum inutiles cjfent proprietatcs, femper abfcedente ufufruSlu, placuit certis modis cxtingai vfinnfruQum, isf adproprieta-
tem reverti, I. ii. t. 4. . i.
'
' The Term is fixed on as that to which the longeft Life of Man can extend. Et pincuit centum aniiii tuendos cjji in 11
fu-
fruBu inunicipes, quia ii
finii
vitre longavi hominis
eft,
Digeft. De ufufruBu, &c. 1. vii. t. i. leg. 56. See alfo 1. xxxiii. t. 2. Dc
ufu & uj'ufrunu, &c. leg. 8.
^
The Law does not fpeak at all of an Enemy; it only fays. If a Plough pafTes through a City, (3'c. (/. e.) if it be deftroy'd
any manner of way, which may happen by the Order of the Supreme Governourfor the Punifhmcnt of the Inhabitants. Si ujus-
frudui civitati kgetur, iff aratrum in earn inducatur, Civitas
ejfe definit ; tit pajjd e/i Carthago, ideoque quaji merte definit habere tifiati-
fruBuw,
Digeft. 1. vii. t. 4. ^ibus modis itjusfr- velufiis amittitur, leg, 21. The Sacking of a City is exprcffed here with an al-
lufion to a Cuftom of which Horace fpeaks, 1. i. Ode 16.
-
Imprimeretqiie muris Th' infulting Army brought unto the Wall,
Hoftile aratrum exercitus injolsns. The Hollile Plough to raze it till it fall.
See the Notes of Dion. Gothofred. upon the Law itfelf, of which he treats.
*'
i. e- The Ufufruft being a Right purely perfonal, it can't be transferred to a third; 'io that he acquires and enjoys it in
his own Name, as holding it immediately of the Proprietor. But this does not hinder but that the Ufufruftuary may not only
let it out to farm, but refign, fell, or give the Enjoyment of it to a third. All that is meant is this, that the third pcrfon fha'l
enjoy it no longer than the Ufufrufluary enjoys it himfelf, yet not fo fully as if he had the proper and immediate Ufufruft. XJfu-
fnifluarius -uelipfe frui ea re, vel alii fruendam concedere, vel locare, vel vendere poteft;nam
(3'
qui locat, utitur , bf quivcndit, utitur.
Sed l^
fi
alii precario concedat vel donet, puto eum uti, atque idea retineri ufumfruBum, Digeft. 1. vii. t. i. leg. 12.^.2. 'Whence it
appears, that when the Ufufruftuary difpofeth of the Enjoyment of the Goods, of which he has the Ulufruft, according to his
Mind, 'tis the fame as if he enjoy'd it himfelf; and in this Cafe the Right of the Ufufruft remains always in the Ufufrutluary,
though he has transferr'd the Enjoyment of the Fruits to a third, as the Exprefiion of the Roman Lawyers implies, Ut ipfiim
qui'
demjus remaneat penes maritum
[
qui
poft
divortium reddere teneretur ujumfruSumfundi dotis nomine acceptum
]
perceptio vera fruBuum
admulierem pertineat, Digeft. 1. x,:'ii. t. 3. De Jure Dotiutn, leg. 66. This Law is a matter of Difpute among the Interpreters of
the Roman Law, about which we may confult Vinnius on the
Inftit.
1. ii. t. 4. ^.
3
numb. 4. and Mr. Titius en Laitterb. Obf. zz6-
^*
Finitur autem nfusfruBus morte ufufrufluarii, (sf duabus capitis diminutionihiis, maxima ijf in:dia, Inftit. 1. ii. t. 4. . 3.
See
alfo the Code, 1. iii. t.
33.
leg. 16. . 2. in
fine.
And for Diminutio capitis, (i. e.) the Disfranchifement of a Citizen, of which he
fpeaks, fee what I have obferved above, 1. iii. c. 6. . 3. n.
5.
*'
That is to fay. If he neither enjoys himfelf, nor by any other the Goods of which he has the Ufufrufl. This is what is
called, 7!on uti per tempus, Inftit. 3. a/ fupra. Non utitur [hj the Lawyers elfewhere) ufufruBuarius,
ft
ncc ipfe utatur, nee no-
mine ejus alius, Digeft. 1. vii. t. i. leg. 38. See Note 21. above. Before Juftinian the Ufufruft of things Moveable was loft, if
they were not ufed for a Year, and of things Immoveable in two Years. But tiut Emperor order'd that the Uiufruft of both
fliould not be loft, but by Non-ufage for ten Years, if the Ufufruduary was in the place where the Goods were, and twenty, it
he were at a diftance. See Code, 1. iii. t.
34. Defervitut. y aqua. leg. 13.
^^
Non utcndo per modu?n, Inftit. ubi fupra. See Digeft. 1. viii. t. 6. ^emadmodumfervitutes amittuntur, leg. 10. . i ^ ' i princ.
^'
Rei mutatione interire ufumfruBum placet. Vcluti ufusfruFtus mihi tedium legatus e/t, tcdes corruerunt vel exufta funt, fine du-
bloextinguitur. In this cafe the Ufufruftu.iry h.ith neither right to the Materials nor Place where the Houfe flood. Ccrtiffimum
eft
nee areIT, tiec camcntorum ufumfruBum dcbcri, Digeil, 1. vii. t. 4. leg. 5. ^. 2. See alfo, leg. 8, 9,
10, 12, 23. Eft
cnim
jus in corpore, quo fnblato, (^ ipfuin tolli neceffe ejl, Inftit. 1. ii. t. 4.
//.' princ. But this muft be fomc particular
U(ufrui>, for when we
have an univcrfal Ufufrud, (/. e.) overall the Goods, the Enjoyment of the reft is prelerved. Bonorum autem ufufruBu
legato, aretc
\_adium incenfaruni\ ufusfruBus peti poterit, quoniam qui bonorum fuorum ufumfruBum legat, non folum
eortim qUie in fpccie
funt,
f:d (jf
fubftantia omnis ufumfruBum legare videtur, in fubflantia autem bonorum ettam area ell, Digeft. 1. \\\. ^ \. De ufufruBu, i^c. leg.
34,
\. 2. Farther, the Interpreters of the Roman Law fiy, That to know whether the thing of which we have the Ufufruft be defttoyed,
we muft confider whether the Name be changed. See Vinnius upon the Inftitutes,
1. ii. t- 4-
f- 3-
"
5-
6-
*6
Item finitur ufusfruBus,
ft
Domino proprietatis ab ufufruBuario cedatur vel cor.trario,
fi
ufufrilBuarius propriaatem rei
acquijierit, qua rei confolidatio nppellatur, Inftit. 1. ii. t. 4. .3.
G
g
g
a^
410 Of
Right over other Book
IV.
and
all other Services do properly denote a Right
over
fomewhat that belongs to another. But when
a
Perfon
ulcth his own Polleflion, and receives Ad-
vantages
from it ; this he docs by virtue of his
Dominion
^7,
and wants not a new Title or Com-
miflion.
VUI. Ufa, as they term it, is when a Man re-
ceives from a thing belonging to another
'
, only
the daily and neceflary Service, the Subftance re-
maining as before. And this is of lefs Extent than
Vfe
and Profits, th; Pevlbn to whom it is granted
being only allowed to take fo much Advantage
from the thing, as is fufficicnc for himfelf and his
Dependents ; which Allotment is meafur'd ac-
cording to his Dignity and Condition^. Thus,
for Inftance ; As he, who hath obtain d the
Ufe of
another's Houfe, may dwell in it with his own Family
;
Jo
he cannot jairl) receive either a
Gueft of long con-
tinuance 5 , or an Inmate who
fiall
lodge there without
being a Member i;f
the fame domefiical Scciety ; in cafe
the Proprietor himfelj dwells likewife under the fame
cmmon Roif
;
(bat 'tis ocherwife it the Grant runs
for the lole
Ufe
of the entire Tenement} mr can
he, according to the regular
Conrfe, transfer the Ufe
to another ; it being a ALitter
of
vay weighty
C.iifi-
derati. n, and
of
great Dijj^erence, whom a Man takes
to cohabit with him. As to the Prefcrvation and
Reparation of the thing in which any Perfon hath
thus cbtain'J a Ufe, it feems mod agreeable to
Equity, that if fuch a Ufe be once granted, there
remains no farther Fruit or Benefit to the Proprie-
tor, than the Ufer (hall be obliged to keep the
thing fafe and found. If the Profit accruing to
both be equal, they fliail maintain or repair the
thing at joint Charges +. But if the Ufe be incon-
fiderable in comparifon with the Profits which the
Owner ftill referves to himfelf ; in this Cafe 'tis
eafily prefum'd, tliat he intended not to charge it
with any Burthen.
IX. Dwelling,
in the Civil Law, is a Right by
which a Man receives all the Advantages
com-
monly proceeding from the letting out the
Houfes
of others
'
. This is of a narrower Compafs
than
the Ufe and Profits of the fame Hoi.fes
; the latter
taking in likewife the Benefit arifing from the Re-
ception of Goods, and many the like Caiifes.
And
yet it is of a wider Extent than the bare
Ufe ; iu-
afmuch as the Perfon who hath obtain'd it, may
let out the refpeciive Buildings to other Tenants,
infiead of inhabiting them himfelf.
X. By the Right of
Servants JVorks is receiv'd all
the benefit arifing from the Labour of another's
Servant
'
. Which Right the Roman Laws make
more contrafied, than the Ufe and
Prfits of the fame
Servant
; becaufe he is capable of bringing m Ad-
vantage by other means befides his Work.
XI. R.cal Services, due to any Perfon on account
of fome Eftate or Pofiirffion, are, in general, fo
many Rights, by virtue of which my Neigh-
bour's Efiate is charg'd with yielding fome certain
Advantage to mine. The Civil Law divides them
into Services
of
City EJlates
'
, and Services ofTcun-
try Ejlates.
By Country Eftates are meant Lands,
and inferior Buildings, erefted only for the Con-
venience of Agriculture, and prefcrvation of Cat-
tle. Under the Term of City
Eftata
-
are com-
prehended all Buildings defign'd for the Reception
of human Inhabitants, for the Exercife of Com-
merce, and the like Ufes, though feated at any
Diftance from the City. The Occafion of efta-
blifhing all thefe Services was generally taken
from Neighbourhood; a Relation which may juft-
ly be thought to border very near on that of
Friendfliip. For, inafmuch as it contribured
highly both to the Profit and the Pleafure of
Men, that many of them (hould join their Da-cI-
lings and PoUcffions, which Convenience could
fcarcely fubiift, ihould each Perfon go about to
exclude another from the Ule of his Prorerty
in every Degree, therefore Neighbours wete wont
Mr. Barb. NOTES on
. vii, viii, ix, x, xi.
^
Nulli enim res fua firvit, Digeft. 1. viii. t. 2. De fervitut. prad. urban. leg. 26. priiuif. See alfo I. vii. t. 6. Si -ufusfrudus
petetiir, i^c. leg. 5. princip.
'
Minus autem Juris eli in
ufu, quam in tifufruHn. Nam is qui fundi nudum habet afurn,
nihil ulterins habere intelligitur, quam
lit oleribu!, pomis, fliribus, fceno, ftrameittis i^ lignii ad ufum quotidlanum ulatur. By the Roman Laws the Ufer can neither fell,
nor make over, nor give away his Right. Nee ulli alii jus quod habet aiit locare, aut venders, aut gratis comeanc
potifl,
Inftit. 1. ii.
t.
5. Denfui^ habit. ^.\. This Right is eftablifli'd, and ceafed in the fame manner as the Ufufruft. lij'Jem itlis modis, quibus
ufttf-
frudus conjlituitur, etiam nitdus h/us conftitui folet, iijdemque illis modis finitur, quibus is" ufusfruBus dejinit. ibid, princip. Sec
Mr. Daumafs Civil Laws in their Natural Order, Part I. 1. i. t. n. Seft. 2.
* Aliquo enim largius aim ufuario agendum
eft
pro dignitate ejus, cui reliflus
eft
ufiis. Dig. 1. vii. t. 8. De ufu yhabit, leg. 1 2.
J.
I.
' All that our Author fays about the Ufe of an Houfe is not at all agreeable to the Roman Law ; but I muft own, that fe\^eral of
the Laws which 1 have quoted, and fome of wliich our Author refers to, are confuted See one of them correfled by Mr. Noodt
in his Probab. Juris. 1. iii. c. 7. \vho in the following Chapter of the fame Work correds and explains another which relates to this
Matter. One general Remark may be alfo made upon all the Places mentioned in this Chipter, which is. That the Laws of each
State, and the mutual Agreements of Parties, or the Will of him that gives freely, may be diftinguillied a thoufand ways. So that
no Rule can be m.ade which can abfolutely and unchangeably agree to all Cafes, and we mull feriouny attend to the particular Cir-
cumftances of every Affair to decide it afterward according to the Nature of the thing and Maxims of Equity, what are the Engage-
ments both of him that confers any of thefe Rights, and of him who receives them.
+ Si domus ufus legatus
fit fine fruau, communis refeBio
eft
re: in fattis teSis, tarn haredis, quam ufuarii. Videamus tamen ne
fi
fruBum hares accrpiat,
ipfe reficere debeat. Si vero talis
fit
res, cujus ufus relegatus
eft,
ut hares fruiium percipere non
pojfit, Lt-
gatarius reficere cogendus
eft.
^a diftinBio rationem habet, Digeft. 1. vii. t. 8. leg. 1 8.
Sedfi
cui habitatio legata,
five aliquo modo con/lituta
fit,
neque ufus videtur, nequ: ufusfruBus, fedproprium aliquodjus neg
folum in ea degere,
fed
etiam aliis locare, Inftit. 1. ii. t.
5."
. 5. See alfo the Cede, 1. iii. t.
33. De ufufruB. tf habit. &c. leg. 13.
We neither lofe this Right by Non-ufage, or a civil Death. See the
Digefts,
1. vii. t. 8. De ufu ts"
habit, leg. 10.
' Operis fervi legaiis neque
iifas neque
ufusfruBus in eo legato
ejfe videtur, 1. xxxv. t. 2. Ad legem Fahidiam, leg. i . . 9. This
Right is loft only by the Death of the Slave, and not by the natural or civil Death of him who might fo difpofe of the Slave, nor by
Non-ufage. Stt
Digeft.
1. vii. t.
7. De operis
fervorum, and 1. xxxiii. tit. 2. De ufu l:f ufiifriiBu, kc. leg. 2.
.'
T
^.*^^ }^'
S^rvitules rufticoriim pradiorum {5" urbanorum, Digeft. 1. viii. tit. i . De Servitut. leg. i . Some Men maintain, that
this Diftindlion is of no Ufe, becaufe it ihews no Difference as to the efFefls of Right. See Mr. Thomafius'i Dil'courie,
De jervit.
Sttllicidii, which is the fifteenth among his Difcourfes at
Lnpfick, . 14. as alio Mr. Titius'a Obferv. on Lauterbach. Compend.
Obferv.
24.3.
* The Words of the Law are, Urbana pradia omnia
adificia accipimus, non flum ea qua funt in oppidis,
fed U
fi
frte
fta-
bula funt, vel alia meritoria in villis i^'\in vicis, vel
fi
Pratoria voltiptati tantum defervientia, quia urbanum pradium nun kcui
facit, fedtaattria, Digeft. lib. 1. 1. 16. De verbor. ftgnificat.
leg. 198.
CO
Chap.
VUl.
Mem Goods or
Poffejftons. 411
wont to fettle it amongft tliemfelves, That no Man
Ihould life his oiun things to all purpofes, and in all re-
fpeEis, left:
others Jhould thereby be reducd, as it 'Mere, to
Hard hips andStreigbts ;
but that each Per/on Jhould al-
lozu others fuch a inoderate nfe oj what he hir}ifelf pojfef-
fed,
as they could not tcnnt without great Prejudice to
their Ajfairs
+. Vid- D. lib. vii. t. 6. 1. 1. f. i, 2. D.
Si ujus-fr.
petatur. ei7 lib. viii. r. i. 1. 15. D. De Ser-
vit. 1. 10. D. De Servit. Urb. prad. 1. xx. f. 2. 1, 31.
d.t.
Hefiod.
Op. & Dier. 1. i. ver.
343, 'c^Tc
E/ yap TOt nai %pvi|x' iyx&fiov uhho yivvjui
TifTOveg oci^ivoi exiov, ^wa-^vrrf Ss Ty\oi
IIvjf/.
aa'Aog ysiruv, oaaov r ayc^og
fxsy omcc^
EiJ^jj-ops TOt Tijxvig, oV ij^fAops ysiTOvog ta^ha.
Iti Englijh thus
;
Call Neighbours firfl, when l-Vurk is to be done
;
Your Kinfmen flay to drefs, undrefs'd your Neigh-
bours run
;
111 Neighbours Heaven for Punifliments defign'd.
As good for B'effings: If one good you find.
Think you have found a Treafure
Socrates (in Xemphon.
"ATtoitv. Lib. ii.
p. 432.
in
fin.
Ed. H. Steph.) reckons up thefe Advantages of a
Neighbour's Service ; To light your Fire zuhen you
have Occa/ion ; to
ajjifi
you in any gnod Office ; to be
ready at hand for the awarding you his kind Succour,
if
you happen to fall into any Misfortune, Add. Pla-
to de LL. lib. viii.
p.
pi
5. Edit. Francof. 1602. On
the other fide, 'tis a general Rule to be obferv'd
in the challenging thefe Services, that they be not
carried too far, and that they be us'd with Mode-
fty, fo as to caufe no Trouble or Uneafinefs to
thofe that live about us.
The particular Services
of
City Eflates are reckon-
ed (for the moft part) as follows : T'he Services
of
bearing a Burthen ^
, by which any Neighbuur is
bound to let my Houfe reft upon his Wall or Pil-
lar. The Confequence of which is, That thePer-
fon who owes me this Service, fhall be likewife
engaged to repair the faid Wall or Pillar, becaufe
otherwife, if the Support fliould fall, the Service
comes to nothing. The Service
of
letting in a Beam ^,
by which I am allow'd to carry on a Rafter or
Beam, or any other Piece which joins my Build-
ing together, till it enters into my Neighbour's
Houfe, and is there fallen'd.
The Service
of jutting or /hooting out ^ , Vvhich im
powers me to extend any kind of Building over
the Houle or Ground of another Man, yet fo as
not to make it reft upon the faid Houfe or Ground
:
As in Balccnies, Pent-houfes, and tlic like. The
Service
of raifing a Building higher ^
, by wiiich we
are bound, though to our own Inconvenience, to
give another leave, for his Benefit and Advantage,
to raife his Houfe
; which we might otherwife
forbid, or prevent.
The Service
of
not raifing a Building higher
?
;
by which a Man, for the Profit and Convenience
of the adjoining Tenements, is conftrain'd ro keep
his Houfe low, or not to raife it beyond fuch a
fi.\'d Height.
The Service
of
Lights
'",
by which my Neighbour
is obliged to admit my Lights, or my Windows
for the Conveyance of Light.
The Service
of net hindring Lights ; by means of
which my Neighbour can attempt nothing towards
the leflening or obfcuring the Lights of my Houfe.
The Service
of
ProfpeB ; by which my Neighbour
is bound to let me look freely into his Ellate, and
cannot deprive me of that Benefit.
The Service
of
not hindring Profpeel ; by which a
Man is tied up from doing any thing in his Eflate,
which might interrupt a free Piofpeft on any liue,
efpecially towards any delightful Place,
The Service
of
receiving Drcpping MAiter ", denotes
an Obligation to futfer any fuch Conveyances to
empty themfelves upon our Ground, though to our
Burthen and Trouble.
The Service of not receiving Dropping Water, de-
notes an Obligation not to turn the fame little
Spouts or Gutters, which are already ufeful to our
Neighbour, into a new Courfe for our own Ad-
vantage.
The Service
of
receiving the River
^^,
by which my
Neighbour is bound to grant Paflage to tne larger
Currents which flow (like a River) thro' my Houfe
in Pipes or Canals.
T/.e Service
of
not turning away the River, re-
ftraining my Neighbour from diverting any fuch
Channel or Stream which ilfues out of his Houfe,
lb as to hinder it from paffing through my Eftate,
to my great Benefit.
Laftly, We are to refer to the fame Head
''
The Service of
i/nploying Sinks and Kennels ; of
pour-
ing out any thing upon a Neighbour's Ground, and
whatever there are bcfides of the fame kind.
Mr. Barb. A/OCTE 5 OB . XI.
*
The Rights of Service are not confined to what is abfolutely neceffiiry for the Ufe of the Poffeflbr of the Ground, but
they extend alfo to whatever is for the Convenience and Pleafure of the Owner, as much as for his Profit. See Mr. Noodt's
Frobab. Juris, 1. i. c. 2. where we may find many curious Obfervations for the underftanding, of fevejal of the Raman Laws about
Services.
^
De fervitute, qua onerisferendi cmtjti
impofita
erit. Sec. Digeft. 1. viii. t. 5.
Si fer:-llus vindice_tur. Sec. leg. 6.
^
2. E.-m de-
here columnam rejlituere, qun onus vieinarum tedium ferehat, cujus ejfent isdei, quafrrvinnt, 1. viii. t. 2. De fervit. prad. urban.
^
Jus immittendi tigna in parietem vicini. ibid. leg. 2. Sec Mr. Thomafius'i.
Dilcourle, De Servit. Stillicidii, . ;g.
^
Projicicndi, protegendive, ibid. Inter projeElum (sf immijjum hoc interejfc, a'tt Lttbeo,quodprojeBtm ejjit id quod itaprovehcretur,
ut nufquam requiefceret, qualin maniana ^fuggrundia effent
; immijfum iiutem quod ita fieret, ut aliquo loco reqiiiefceret,
veluti tigna,
trahes, qure immittercntur, lib. 1. t. 16. De verbor. fignificat.
log. 242. Seel. v. c. 5. \-
\. infra, ^.ni. Arr.m-
Marcellinus, 1. xxvii.
c.
9. in
fine,
quoted alfo by Mr. Hertius.
*
Altius tollendi aut none.xtolletidi, 1. viii. t. 2. ut fuprn.
'
Luminum fervitute conftitutn id acquifitum videtur, ut vicinui lumina noftra excipiat. Cum autem fervitus
imponitur, ne iummibus
efficiatur, hoc maxime adepti vldemur, ut jus
fit
vicino ini'itis nobis altius tedificare, atque ita minuere lumina rioftrorum redificiorum,
ibid. leg.
4.
'
Inter fervitutesyne luminibus
officiatur, l^ nc perfpeSui offendntur, aliud k^ aliud obfervatur,
quJ in prfpe^u
plus quis habet,
ne quid ei
officiatur ad gratiorem profpeBum IS liberum- ibid. kg. i j.
"
Itemftillicidiumavertendiintehum, vel arcam vicini, aut non avertendi, ibid. leg. 2. See alfo leg. 20. -2,5,6. See alfo
Mr. Thomafius^s. Difcourfe on the fame Subjeft..
"*
IJt
flumen recipiat quis in redes fuas vel in are.im, Inftit. 1. ii. t. 3. . i.
'5
Jus cloaca mittenda
fervitus
eft,
Digeft. 1. viii. t. I. leg. 7. This Service is alfo for Country-Dwellings. See t.
3
De
Jervit. prad. ruftic.
leg. 2. frincip.
^
G
<T
g a
XIL Thi
Of
Right over other, &c. Book iV-
XII. The SerziCes of Country Efiates
'
; or which
are due to Lands and Herediraments imploy'd in
rural Affairs, are commonly reckon'd in this Cata-
logue. PciJfAge ; the Right ot a Path for Men to
walk through my Neighbour's Ground into mine,
for the Benefit of the latter. Carriage; the Right
of driving Bcafts or Wains. Rojd, or Way ; the
Right of going, walking, driving ; as iikewife
of carrying, leading, bearing, and drawing any
thing which makes for the advantage of my Elfate.
IVatey-conrje ; the Right of bringing Water thro'
my Neighbour's Fielcl, for the Benefit of my own
;
whether I nfe this IVater for the Ground, or for
the Beafis, or only to free my Land from an un-
ncceifary Burthen and Flood. 'Tis the Nature of
thefe Services, that they cannot be granted in
part *
, being of no \]k unlefs entire. For, as the
Cii'tl Law obferves in one of thefe Inftances ;
A
Road or Way is then 'ccor.t to be finijhed,
"when it
reacbcth either to a Town, or to fuine high and publick
Way, or to a Ferry, or to fame other Farm
of
the fame
Lord. Therefc^re it would be vain and ufelefs to
obtain a Pailage only thro' half another's Ground,
if we were not allow'd to go farther. Water-
draught ; the Right of fetching IVater from a Spring,
or other Place, for the neceiJary Occaiions of
our
Ground : Which Grant is prelum'd to include aJ-
lo another 5 , of free PalTage to the Spring or
Well. Waterage for Cattle ; a Right to dri\e the
Beafts which feed in our Ground, to drink at our
Neighbour's Pool. To the fame Head belongs,
T/;e Right
of feeding our Cattle en anvthe/i Pa (lure :
Concerning which Right it hath been obferv'd.
That the Lord of the Ground, which is ciiarg'd
with this Service, is not hereby hinder'd from
feeding his own Cattle in the fame Place, provided
he do not over-ftock it, fo as to intercept the Right
of the other Party. And fo too he, who hath the
Right of Pafturage, ought not to biing in dileas'd
or fcabby Beafts, which might communicate the
Infection to others.
Laftly, To tl'iefe are added. The Right of
burning
Lime,
of
digging Sand,
of
cutting Stakes,
of felling
Wood, and
of
hewing Stone ; as they turn to the ad-
vantage of Country Efiates. All which have been
by others explain'd more at large
+
.
Mr. Bare. NOTES en . xii,
'
Servitutes rujlicofum prredlorum Junt ha : Iter e/ijus eundi, amhulandihomini, non etiam jimentum agendi. AEius
eft
jus agen-
di, zrljumentum, velvehiadum. Via
eft
jus eundi, i agendi, (j! ambulalidi, Digeft. 1. viii. t. 3. De j'ervit. prced.
ruftic. leg. 1.
See about this Mr. Bynkcrfljock's Obfervations, 1. iv. c. 7. Jqutedullus
eft
jus aqunm ducevdi
fer
fundum aliemim. In rufticis computanda
jur.t afjie kauftus,
pecoris nd aqunm adpuifus, jus pafeendi, calcis coquenda, arencefodienda Etiam ut pedamenta ad vine-
am ex vicini pradto J'limantur, Sec. ibid. leg.
3.
*
S^uin via confummari folet, vel civitate tenus, vel ufque ad viam publicam, vel ufque adjlumin, in quo pontonibus trajiciatur, vel
ufque ad proprium aliud ejufdem Domini prtedium- ibid. leg. 38.
*
Sljii habet hnuflum, iter quoque habere videtur ad hauriendum. ibid. leg.
3. .3.
^
See Mr. Daumad Civil Laws in their natural Order, Parti. 1. i. t. 12. As to the Right of Fiefs or Fealty (which our Au-
thor hns omitted) 'tis the common Opinion, that they are derived from the People of the antient Germany. See Grotius, De Jure
Belli (^ Pads, 1. i. c. 3. . 23. znd Paul Haehenberg\ Germania Media, Sec. DifTert.
9. or the Extraft in Bibliothec. Univerf.
Tom. vi. p. 356,
i^c- as alfo Mr. 77;;oOTrt/?w's Difcourfe, intit'led, SeleSla capita hiftoria jurisfeudalis Germanici, which ii among
his ScleSla feudalia printed at Hall in Saxony in 1708. Yet fome, among whom is our Author, as we may fee I. viii. c. 4. . 30.
following, believe that it had its Original from the Romans. See Mr. Hertius upon the Place, and his Difcourfe, De feudis oblatis,
Se6l. I. .2. which is in Tom. ii. of his Comments and Opufc. Mr. Thomafius himfelf thought formerly, that Fiefs were in ufe
among fever.il People before the Germans, tho' he could not find out the firll Rife of them. See his Difcourfe, De Origine ^ Na-
tura Fcodi ohlati, v/hich is the twelfth among his Difputations at Leipfick.
But be that as it will, there are feveral forts of Fiefs, of
which at this time we fliall fpeak of the moll common only. A Fief then ii a Right of enjoying fully an immoveable or incorpo-
real Eftate that belongs to another, to whom ws have obliged ourfelves to pay Homage and Fealty with certain Services and Duties
upon that account. The Right paifes to the Heirs, but moft commonly to the Males only in a right Line, or the collateral Rela-
tions on the Father's fide ; for thofe on the Mother's have no Title. He that graHts thefe Lands in Fealty is the Lord, and he that
receives them is called his VafTal. Where the lineal Heirs capable of Succeflion are extinft, or the Vaflal is found guilty of Felony,
i. e. hath broken the Engagements he was under to his Lord, or neglefts certain Forms in his Tenure : Or, laftly, performs not
the Conditions by which he holds his Fief, it then returns to the Lord. We may find the Culloms of Fiefs in the Body of the
Civil Law, which Colleftion was made about the Year 1 1
54.
But Mr. Thomafius has publiiTi'd an Author more antient, De Bene-
ficiis, as Fiefs arc called, written before the eleventh Century, and has joined with it two fine Difcourfes ; the one concerning the
Author and Antiquity of that Work ; the other of the good Ufe of it ; and in them proves, that the Author wrote in the twelfth
Century, and at the Bottom of each Paragraph has made References to parallel Places in the Speculum Saxonicum iff Suevicum i
all which are found in his Selena Feudalia beforemention'd. In fine, Multitudes of Authors all over Germany have publifhed Trea-
tifes about the Nature of Fiefs.
CHAP.
Chap. IX.
Of
Transferring
ofi
&c.
CHAP. IX.
Of
Transferring
of
Property in general
t. It proceeds
from Property, that vie may alienate a
thing.
II.
'the Confent
of
two Perfons is required in every
Alienation.
III. Which is to be exprejfed by fame Signs.
IV. An Alienation is made entirely, or upon Con-
ditions.
V.
Whether LiUery be required in every AUena-'
tion.
VI. Property is either accompanied with, or feparated
from Pojfejpon.
VII. What, and how manifold Pojfejfion is.
VIII. Hoiv Property is gained by bargaining only,
IX. True, andfeigned Delivery,
WE
are now to confider the derivative Ways
of
Acquijition, by which Dominion or Pro-
perty already eltabhfii'd pafl'eth from one to ano-
ther : Which, before we proceed particularly to
examine, it may be convenient to premife fome-
what about the transferring of Property
'
in gene-
ral. The Power and Privileges then
^
of alienating
our own Pofleflions, or of conveying them to o-
thers, arifeth from the Nature of full Property 5
:
For fince this enables a Man to difpofe of his own
how he pleafeth, it feems the very principal part
of that Ability, that he maj', if he thinks conve-
nient, transfer the thing to another, by which
means he may either procure to himfelf fomething
more ferviceable, or at leaft may have an Oppor-
tunity of obliging a Friend by his own Turn.
II. Now as the Conveyance of Rights and of
Things is tranfacted between two Parties, the one
from whom, and the other to whom they pafs
*
;
fo in thofc Methods of Acquisition which flow
from the Force and Virtue of Property, the Con-
currence of two M^ills is required
'
, the Giver's
and the Receiver's
''
: For Alienation doth efpe-
cially denote, that the thing pafl'eth from the Pro-
prietor with his free Confent, and is not taken from
him by meet Violence againft his Will. Again,
To make a thing change Mafters, it is necelVary
likewife that the latter agree, as well as the for-
mer ; it being inconvenient, that a thing, which,
as to its natural Subftance, exifts feparately from
me, fhould be, as it were, join'd and united to me,
unlefs I embrace it with my own Confent and
Choice. But in Cafes where the Property is faid,
of Right, to pafs to Men without their Know-
ledge, as in Inheritances, there the Law is prefum-
ed to make an Acceptance by way of Fiction, in
Favour of the Heir. Of wliich this is an Evidences
that the Heir may refufe the Inheritance
*
; and
unlefs, either in Perfon or by Proxy, he takes aftual
Pofleffion of it, he is not aitefled by thofe Obliga-
tions which arife from it, or are charg'd upon it.
III. Farther, fince Alienations ought to be made
with the Confent of both Parties, and fince it is
inconfiftent with human Society, that bare inter-
nal Afts fliould be allow'd a Power of producing
Rights to hold valid and etfeftual with regard to
other Men ; therefore 'tis required on both fides,
as well on the Giver's as on the Receiver's, that
they declare their Confent by fufficient Signs, that
others may be fully aflur'd of it : Such as are,
Nods, Geftures, Words, Writings ;
to which, io
fome Places are added, folemn Profeflion before a
Magiftrate, pubhck Regiftring, and the like
"
.
IV. It is evident, moreover, that when a Tranf-
lation or Alienation hath been perfedly and un-
conditionally made, the Alienator retains no rhan-
ner of Right or Title to the thing whicli v/as be-
fore his own. Which Confequencc, though it be
naturally implied in every Att of this kind, yet
'tis ufual in folemn Renunciations and Surrendries,
exprefly to declare. That neither we our felves,
nor our Heirs will hereafter make any Pretenfiori
or Attempt upon what we have now given up
;
and that if any fuch Motion happens, it fliall be
null and void : Becaufe, when we have once made
a thing another's, we cannot, to any purpofe, claim
the Difpofal of it again. Yet frequently, after a
thing hath been alienated, the former Owner re-
ferves fome kind of Claim, or a fort of Chance
Right, which in Cafe of fome particular Event,
now unknown, exerts its Force. And this, either
becaufe in the Aft of Alienation it was thus ex=
'
So the Law fpeaks ; In omnibus rebus qua Dotninium trnnsferunt, concurrat oportet affeBus
ex utraque
parte
contrabentium, nam
five
ea venditio,
five
dcnatio.
Jive
conduBio,
five
qualibet alia caufa contrahendi fuit, nifi
animus utriufque
confcntit, perdua ad
ef-
fe^um id quod inchoaturnon poicjl. Digell. 1. xliv. t. 7. De obligat.i aBion. leg.
55.
See I. iii. c. 6. ^. 15.
above.
* See the Title of the Digefts, De acquirenda vcl amittenda harcditati, 1. xxix. t. 2.
11
.
t, j r u b .^
Certain Marks or Signs ; for Example, when any one among the Germans
alienated an
immoveable thmg, he deliver d a Koa
called Effeftucalio, or he took up fome Dull or other Piece of the Soili and caft it upon the Folds of the Robes ot the Uuyer,
See Mr. Hcrtius\ Notes upon this Place. -
preflf
414
Of
Transferring
of
Book
VI
predy
covenanted ; as is the Praftice in Sales with
Libercy of Refufal
'
, in things alienated under an
Exception or Condition
^
, and when only a dimi-
nutive or imperted Property is
transferred 5, as hap-
pens in the Grant of Feuds, and of Copies and Leafes.-
Or, becaufe the Alienation includes a tacit Condi-
tion, which Condition coming to pafs, the Right
of the former Owner to the thing thus convey'd
revives ; whence arife thofe feveral Aftions in Ci-
vil Lavv'^, of Falfe Debt ; of things given upon a
certain Caufe ^ , v/hich Caufe did not follow
^
;
of
the Recovery of fpoufal Prefents upon not proceed-
ing to Marriage ; of Recovery of Dowry upon Di-
vorce or Separation
-"
.
Vulcan, in Homer
'
, upon his taking Venm in
Adultery
^
, challengeth
the liJv, the Prefents he
made his Father in Law, in profpett of the Match.
'Tis a Rule in the
Alcnran, That if
a Suite}' pit
away his Spoufe before
Coiifnmrtiation, Jhe
[ball retain
half
(f
what he gave her, iinlefs
fie
choofe to throw him
back all.
V. But the chief Point ufually controverted on
this Subjeft is, TVhether or no in the transferring of
Property the Law
of
Nature requires Delivery ? For
others have already well obferv'd, That Delivery
cannot rightly be plac'd amongft the Ways of ac-
qiiiring\ Cmcz 'cis only an Adt intervening in the
Conveyance o{ it. Grotim^ is of Opinion, That, ac-
cording to theL^w cf Nature, Property may be tranf-
ferr'd
by ba;e Covenant; and that Delivery is only
rtquir'd by a civil or pojitive Ordinance
;
-which being
receiv'd by many States, is through miftake fiykd.
The
Law of Nations. On the other hand, the Ex-
pofitors of the Rman Laws declare, That the Do-
minion
cf
things cannot be transferred by hare Cove-
nants'^ , though thtii much be exprejly intimated in
the Tranfaciion ; but that Delivery is jlill requifitc.
The Reafon of which Neceflity they take to be this :
That Domiiiims firjl tock their Rife fom natural
Pofl'eflion ,
and that therefore in
faffing
them away,fucb
an Acl muft
intervene, by wl.ich the natural Poifel-
(ion of
the thing may be immeiiiately obtain d. Some
have further remark'd. That in originary Acquifi-
tions, as fuppofe
in Occupancy, or
firfl
Seizure, the
Title or Caufe, and the ?nanner
of
acquiring,
failin
with each othe-r. But that in derivative
Acquifitions
thefe two are ever diftinft ; Delivery and Acceptance
being the manner of transferring Property, or rather
the Ads which occur in transferring it; whilftDc-
nation'i , Buying, and
Selling, i)c. are the Titles or
Caufes upon which the Conveyance is made. Tho'
we have already fhewn, that bare Occupancy is not
a fufEcient Title for Dominion, but that it muft in
all Cafes be grounded on fome precedent Cove-
nant +. Others take a middle Judgment in the
Point ; and as they deny that Delivery is by the
Law of Nature neceffary, fo they maintain, that
'tis however agreeable to Reafon ; inafmuch as I
cannot excrcife Dominion over a thing, uniefs 1 ap-
ply it, as it were corporally, to my felf ; which can
be done only by Delivery on the one fide, and by
aBual Seizure on the other
^
.
VI. In our Judgment,
the Matter may be clear-
ly refolv'd, by obferving, that Dominion is capable
of two different Confiderationsi either as it denotes
a bare moral Quality, by virtue of which we un-
derftand that a thing belongs to fome Perfon, and
that it ought to be fubjeft to his Difpofal ; or as
it implies, farther, fome degree of natural Power
;
by which we are enabled to put immediately in
execution any Purpofe that we have made con-
cerning the faid thing : Or, what amounts to the
fame, Dominion is fometimes confider'd as abftract-
ed from Pcffeffon,
and fometimes is conceiv'd as
united to it ; this being, as it were, the final Com-
pletion of Property ; upon the Arrival of which ic
fully exerts its direft Effeds. For the better Illu-
ftration therefore of the Point, it will not be in-
convenient to fay fomewhat of PoiVe/Tion in ge-
neral.
VII. By Peffeffton then we underftand, not the
bare Retention of a thing ; fuch as a Keeper
'
, an
Adminiftrator, a Borrower, or a Tenant for Ufe and
Profit, have with regard to the Goods of others
;
but fuch as carries along with it an Aflfedion and
Defire of having the thing to one's felf*. This
OJyJf-
1- viii. v. 1 8.
''
-Lib. ii. c. 6. f. i . & c. 8. f. 25.
and elfewhere.
Mr. Barb. NOf ES on . iv, v, vii.
'
See hererfter, in 1. v. c. 5.
f. 4.
^ See the fame place. ^ See what we have faid in c. 4. f 2.
*
Conditio indebiti, which is explained before, 1. iii. c. 4.
i-
5. n. 4.
'
Conditio cmifa data, caufa non feaita. This is when a thing, which was given upon a Condition, which was not performed,
is required again. See the Interpreters upon the Dige/l. 1. xii. t.
4.
and Mr. Noodt's Probab. Juris, 1. iv. c.
4, 5.
*
See upon this Subjeft, Co/ 1. v. t. i. De Sponfalibus i^ Arrisfponfalitiis bf proxeneticis, i^ I.
'i-
De Donatiottibus ante nuptias,
velpropter N"ptias, fs"
Sponfalitiis.
''
See the Digeft. 1. xxiv. t. 3. Sohto Matrimmh dosquemadmodum petatur.
8
This was the Cuilom in thofe Times. See Mr. Le Ckrc'% Notes upon Gen. xxxiv. 1 2. and Mr. Perizotiius^Si upon Mlian. Hill.
1. iv. c. I. p. 301, 302.
'
It is a Determination of the Roman Law, Per Iraditionem quoque jure naturali res nobis acquiruntur, as the Lawyers fpeak,
Injlit. 1. ii. t. I. De rerum divifione, S-
40.
*
Traditionihus i^ uj'ucaptionibus Dominia rerum, tion nudis paElis transftruntur. Cod. 1. iii. De paBis, leg. 20. See alfo, 1. vi. t. i.
Dereivindic.les,. 50. and the Codewkh the fame Title, 1. iii. t. 32. leg. 15,26. as alfo 1. iv. t.
39. De hczredit. vel aBiofte vendita, leg.6.
'
Nurquam nuJa tradttio transfert Dominium, fed ita,Ji venditio aut aliqua jujla caufa pr^eccffrtt,
propter quam traditiofequeretur,
Digeft. 1. .xli. t. I. De acquir. renim Dominio, leg. 31. in primip. See Vinnius upon the Inflitutes, 1. ii- t. i. . 40.
+
I have proved the contrary above, c. 4. . 4. n. 4. See alfo
8. n. i
.
1
See Mr. Z);3v/.i;'s Civil Laws in their natural Order, Parti. 1. i. t. 2. Seft. 2. . 10. with the Note.
'
The Law fays, Denique ait ab eo, npud quern depofita efi,
vel commodata, vel qui canduxerit, vel qui legatorum confersandorum
caufa, vel dotis, ventrifque nomine, inpoffeffionc effet, vel cui damni infcSii nomine non cavebatur, quia hi omnes non pofjident,
vindicari
nonpojfc. Dig. 1. vi. t. i . De rei vindic. leg.
9.
See 1. xli. t. 2. De acquir. vel amittend. pojfejjione, leg.
3. . 20.
^
Et apifcimur poffejfionetn
corporelS anitno, ncque pcrfe animo, aut per
fe
corporc, Digeft. 1. xli. t. 2. De acquirend. vel atnittend. pof-
fetpone, leg. 3. . i. Is qui pignori accepit, aut qui precario rogavit, non tenetur noxali aBione, licet enimjufte pojjideant, non tamea
epii'ione Domini poffident.
Dig. 1. ix. t.
4. de noxal. aBionibus. leg. 22. . i. See Cujacius's Obfervat. 1. ix. c.
33.
Farther, here
arc fome great Difputcs (which are for the moft part but Brangles about words) among the Roman Lawyers themfelves, but more
among their Interpreters, the one fixing one Senfe upon the Word
Poffifftoti,
and the other another, as well as to the divifion of
it into Natural and Civil, See Mr. Daumat'i C\\\\ Laws in their natural Order, Part I. 1. iii. t. 7. and Mr. Titiui's Obferva-
t\om on Lauteriac!^. 1022, isfc.
is Mo his
Jus Privatum Romano German, primed in
1709.
1. ii. c.
7,
8.
they
HAP
.IX. Property in General. 4i
they
divide into
5 natural a.nd civil: Which Divifion
may
again be confidcr'd in tworefpefts
j either as to
the
outward
manner of pofleffing or retaining ; or
as to the inward Form or Eflence of Poffeflion. In
the
former Senfe wc are then faid to have natural
Pofleflion,
when having once taken a thing, we flick
to it, not only by the Inclination of our Mind, but
by
aBual, and as it were, corporal Application. Ci-
vil PolVeflion may in this Senfe be kept in Mind
only,
when 'tis loft as to the Body. Inafmuch as nati-
onal Laws, in fome particular Cafes, ftill allow the
Advantages,
which follow PolVeffion, to thofe who
have
quitted their adtiial hold +, or loft things out
of
their Hands. In the latter refped natural Poffef-
fion is, when we have indeed a Mind and Inclinati-
on to keep a thing as our own, yet without any juft
perfuafion of Property, fuch as might arife from a
lawful
Title. But civil
Pojfeffion implies not only a
Defire,
but likewife a reafonable Ground for that De-
lire ;
which, according to the common and regular
Courfe, is always underftood in national Conititu-
tions,
when they allow any favour to Poflcffion
^
.
. Now the proper Subject of Poffejjm are bodily
Subftances^, whether with or without Motion:
The lefs proper or the analogous Subjeft, are in-
corporeal Things ^,
as Rights, which we poflefs
by ufing them, and by the Power of fo ufing them
;
as likewife Deeds and Writings, upon which an Afti-
on may be grounded towards fome certain Claims.
To the conftituting and compleating the Nature of
Poffeflion, it is requilite that the Petfon to be put
into pofleffion (hall either by himfelf, or by Proxy ^
,
corporally take to him the Thing it felf, or the
Badge and Sign of it, or the Inftrument of Cufto-
dy,
according as the Nature of the thing permits;
and confequencly, that the Thing be after fuch
a
maimer fubjected to his Power, as that he
may be able actually to difpofe of it. If many
Bodies are united and connefted to each other, then
the
taking any one part with a defire of poffeffing
the
whole, is conftrued for taking the whole, fo far
as it lies free and void of Owners. Thus, for in-
ftance, he who would take pojfejjion
of
a Field, or
of
a Houfe, is not obliged to walk over every Foot
of
Ground, or to creep into every Garret; but 'tis en ugh
fr
him to enter on any part
^
.
A complex Body
made up of particular fcparate
Bodies, as a Flock,
for example
;
if all the Parts are prefent, 'tis fup-
pofed to be taken all by laying hold on any one^
But if the Parts are divided as to place, one pare
of the Flock, for inftance, in this Field, and ano-
ther in that ^
; here each part is to be taken by ic
felt. Incorporeal Things, when they adhere to a
corporeal, are prefum'd to be taken together with it.
But if they are to be acquired in the Goods of
others, then they are taken either when we are in-
troduced to a thing, over which
',
for inftance,
we delign to appoint a Right or Service; or when
we exercife any K&. which flows, as it were, from
fuch a Right.
In negative Rights
"
it is equivalent to Ptf-
jjions, it I torbid a Man any thing, or oppofe him
\n his defign upon ir, and if he retls fatisfied after
my fofbidding oroppoling him. ToproceeJ; fach
a Seizure, or the exercife of fach an Aft is neccifa-
rily required in the obtaining of every Pofleflion
:
Though it may by civil Q, dinances be appointed.
That the Property of a thing fhall otherwif; by
Right pafs to a Man fo ctfl-ctually, as that he fliall
bring as ftrong an AcSion again/i: one who detains
the thing from him, as if he had taken corporal
Polfeffion of it
''
.
Farther; As to the acquiring a thing by Occu-
pancy, it is neceflary, that the thing lay free and
vacant : So if a thing is to pafs from another to me,
with fuch force and virtue, as that I may be able
hereafter aftually to difpofe of it, it is likewife ne-
cefiary that he abdicate and divert himfelf ofthe Pof-
fefTion, and remove it, as ir were, out of his Cufto-
dy, that I may have Power immediately to fcize
on it. And this is enough to make it properly be
faid, that a thing is deliver'd by another; there
being no need that he fhould direftiy put it into
my very Hands. As I may very well be faid to
feed a Man, tho' I do not chew his Meat for him;
and then thruft it into his Mouth, but only lay ic
JJJ 'f'
^'''"'P^,^'
^ '^"
^f'
"= 3
F'^^'d, fiiews me it from the top of his Houfe, declaring at the fime time that he releafes it
to me. It IS as much mine as if I were earned to the Place and fct my Foot in it. "
Aut fi mihi fu.ndum vicinum mercato venditur,
m mea furre demoniiret,
vacuamque fe poffeflionem tradere dicat, non minus poflidere ccepi, quam fi pedem finibus intuliflem.
^^
"
Item fi quis nierces in horreo repofitas vendiderit, fimul atquc claves horrei tradiderit emptor!, transfert proprietatem mer-
cium ad emptorem.
D,g. Ixli. t. .. De acquir. rerum D,imo, leg. 9. f 6. and 1. xviii. t.x.De contrahend. empt. leg.
74. See
alfo the Code, 1. vm. t.
54. De donal. W.
i.
/ &
/4
oce
"
r V
1^^ ^P"us interdum
&
m inccriam perfonam collata voluntas Domini transfert rci proprietatem, ut ecce Prstores &
^^
conlules, cum
miffihajadtant in vulgus, ignorant, quod eorum quifque fit accerturus, & tamen quia volunt, quod quifquc
Dminfo'h
^'"'
'
-'
^'""^ ^""^ Dommum efiicium. I>ij?:t. 1. ii. t. 1. De rermn divif. I
45.
Dig. 1. xli. t. i. De acquir. reru^r.
H h h
Sometimes
4i8
Of
Wills and Teflaments,
B o o k IV.
Sometimes
only Tickets are fcatter'd, upon pro-
^J
P"^|
'"^"'^^A,
^^
^4^1
r V. ^,i^'^K
''^
dicing
of which the Bearers receive the Import
and
Oxen, Sheep, and Slaves. Thofe who had the good
Contents of them. Thus T^f^x the Emperor in feme
Fortune to catch thefe Tables, upon carrying them
of the Shows which he prefented, threw about lit- to the
Managers and Stewards, were gratified with
tie round Tablets of Wood, each with fome
kind the
Purport of the Infcnption.
CHAP.
X.
Of
Wills and Te
{laments.
I. How many derivath'e
v:ays of
Jcquijition.
II. Grocius'/ Definition cf
a Will is examined.
III. M'^/Mt is a Will to us.
IV.
Whether Wills proceeded from
the Law
of
Na-
ture is doubted.
V. The Antiems difpofed of
their Goods while they
were living.
AMONGST
the derivative ways of Ac-
quifnion, fome regard the Chance of Death,
and fome
transfer things whilft both Parties are
alive
'
. In boih Cafes the things are convey'd
from one Perfon to another, either by
exprcfs
Will of the former
Proprietor, or by the Ap-
pointment
of fome Law interpofing in the Affair.
Varro De Re Ruflica,
1. ii.
Somewhat muft
necef-
farily
intervene, before what was another's can become
mine
.
II. On account of Death tis the common Pra-
aice of Mankind to transfer things by Teftament
:
The
Nature and Origin of which Afl: we ought
with fome Care to examine.
According to Grotms
therefore a
Tellament is the
Alienation of
a wbvle
Eftate
in cafe of
Death, and before
that time revocable
;
ni the mean
while the Right of PoJJtJfng
and
of
En-
joying being referv'd.
Whereas 'tis not altogether
certain,
whether a Teftament
can rightly be call'd
an
Alienation,
in that flrift Senfe under which it
denotes fiich an Ad, by which a Man makes a thing
that was his own become
another's. For Aliena-
tion being in this Scnfe a transferring of Right
from one to another Perfon,
confequcntly fi.ppo-
VI. How far
MAlls proceeded from
the Lav) of Na-
ture, and how far from pofttive Laws?
VII. An Inheritance given by WiH, wanting due
F rtn, may be enter'd upon, if
none oppcje it.
VIII. But the Heir may null that Will, as
if
his An-
ceftor
had died iiite/iate.
IX. Donation in cafe of
Death.
feth the Exiftence of the two Parties at the time
of its Date ; fo that henceforward the thing may
be faid to be eflrang'd from him who thus tranf-
ferr'd it. But the Teftator
'
, fo long as he draws
Breath, retains a full and abfoiute Right to all
his Goods,
without the leafl Diminution. There-
fore, whilft he lives, he cannot properly be faid
to have alienated any thing : And at the Moment
of his Death he lofeth immediately all the Right
he held whilft alive, and is reckon'd as no body
in civil Confideration. Therefore an Alienation
cannot be faid to be made at that time, when in re-'
fpeft of the Party who fhould alienate, nothing
can be call'd his own or another's. Nor is the
Difficulty taken cff, if we affirm, That the^Aliena-
tion is indeed made when the
JT^iH is fign'd, but
depends in the mean while upon the Calualiy of
Death, as upon a neceflary Conditio:'. For in eve-
ry Act of Alienation two Parties r/uilt join Con-
fents ; the one from whom, and the orl;er to whom
the thing is transferr'd i
and thefe Cunfents mnft
be united by confp.ring, as it were, together at
the fame time. But now nothing happens more
frequently, than that a Man (hall not know
Lib. ii. c. 6. f. I
4-
Mr. Barb.
NoTES at Chap. X. .
i, n.
Here is a more exaa Divifion of derivative Acquif.tions : I. In refpea to the Law, by virtue of which Property is transferrd,
we may divide them into Acquifitions; ,. Natural; 2. Civil; and 3.
Mixt. Natural Acqu.htions areku-h as are conformab e
IZ Rules of the Law of Nature only, /. e. which depend only upon the mutual Conlcnt of P.ufes. Thus we acquire by virtue
of all Engagements, where the civil Law leaves every one at their full Liberty Civil Acqu.iinons are iuch as transfer a Properqr
without
the-'Confent of the Proprietor. The principal w.ay of .acquiring here is by Prelcnpt.on. Sec Chap. xn. 1.
.
.
"
'^
^^ ;
'"f'
Acquifitions mixt are made by the mutual Conient of Parties, either exprefs or tacu, but yet with fuch regard to cu ,1
Conftitutions.
fhat" they be not conformed to, the Afl is void. Thus we get things by a W. 1 or Contraft, yet the Laws of the State prefcnbe
certain Forms to be ufed in fuch fort of Adions. IL Thefe three forts of Acquifutons may be confider d either with refpeft to the
Time they were made, or in refpeft to the Thing acquired As to the Thing, they are univerial or particular, according as jv^cquw
the Good^. of a Perfon, in whole, or in part. As to Time, they have place either in cafe of Death, or m time of L ie^ Se^
Mr TL's
Obferv. on P///.W. 300, i^c
The firft fort comprehends Wills, and Gifts in cafe of De.atn which are treated of m
his Chapter
The other comprehends all Agreements and Contrafls in which any Alienation is concerned, to which we may alio
re er Donations
among the Living, altho' our Author in Us Abridgment of the Dutie. ot a Mm nd Cjt.zen 1.
..
c .2.
has ranked
them under a differeil Head, and fo has not touch'd on them in this Place. But we Ihall fupply this Ddcii by a Note, becaufe h*
has not treated of them in this Work.
-n. t> n n.-
1
2
S>U'ji alter'iu! f'"it, id, ut fiat
,:icum, neceffe rfi aliquid intercedne.
Varro De Re Ruitica, 1. 11. c. i.
_
Eabove f 4 n ,. All that our Author fays here proves only, that in a Will the Alienation is real and clear not irrevo-
cable but that hinders not, but that the Teftator's Aa mav be look'd upon as a kind of imperfeft Alienation, and which may
become perfea, and give the Heir a true Right, tho' liable" to no Effea. So that there is a great DifFerence between an Al.ena
t^bnt Wil and a bare verbal Declaration of a prefcnt Defign to give fomething one time or another, to a certain Perion
For
he Effea of fuch a Declaration
depends always upon the Humour of him that made it, and can't take place without lome better
AffuraneV from him Whereas fo long as the Teftator has not revoked his Will, the Right of the Heir continues,
whatever
Hu-
m!rh IST; tt if the Teftator
halving refolved to change the Legacies he has made of his Goods, but for -nt
time do
it not or becaufe he flatters himfelf that he (hall have time enough when iie comes to die, the Heir and Legatee, have
acquired
.1 fulUnd irrevocable Right, which they have Power to enjoy.
himfelf
Chap.
X.
Of
Wills and
Tejiaments.
#\\
nor know himfelf to be Heir 'till the JVili coitiQS
be open'd upon the Tiftator's Deceafe. And like-
wife when the Will is thus open'd, 'tis at the
Choice of the Heir appointed, whether he will
enter upon the Inheritance, or wave and refufe it.
Again, Since all the Right of the Heir by JVtU
commencech at the Teftator's Death ; he hath not,
before that Moment, any Right which can be
faid to depend on the Death of the Party as on
a
Condition. Befides, when any kind of Aliena-
tion is made, though fuch as may be recall'd,
yet it ought to transfer fuch a Right on the Per-
fon
towards whom it is directed, that it fliall not
be
difanniiird at the bare Pleafure of the Aliena-
tor. For otherwife, neitiier the Alienator can be
fuppos'd to have contmfted any Obligation, nor
the other Party to have acquired any Right, if
the whole Tranfadion amounted to no more, for
Example, than this flight Prcmife, Tuu Jhall have,
cue time or rther, fomnvhat which I noxu
f'ljfefs,
pro-
videdyou dont dijpkafe me in the mean ivh/le ; but
then you jhall have no Right to hinder me fri.m being
difpleas'd at any time when I think
fit,
or without any
manner oj Reafon. Such an Aft as this cannot be
fliled an Alienation, being a bare Declaration of
a Man's preient Deiign, without any ncceflity of
continuing the fame Refolution ; which is incapa-
ble of producing any Obligation on the one iide,
or any Right on the other
^
. But a Teitament is
really fuch a Declaration of a Man's Intentions,
as doth not confer any Right on the other Party
before the Teftator's Death ; fuch, at leaft, as may
have the effeft of full and perfeft Right againft
the Claim of the Teftator himfelf. For after the
Will is drawn up, the Teftator doth not only re-
tain the moft abfolute Right of poiTelHng and en-
joying, making over to the Heir only the bare
Property ; but indeed the Property itlelf is fiill,
without the leaft Diminution , his own. Of
which we have this evident Token, That after all
this he may alienate his Goods, or may ftrike out
thofe who at prefent ftand Heirs, without any Pof-
fibility of Redrefs. But now even revocable Alie-
nations ever fuppofe fome Cafualty, or fome Con-
dition under which they are to be revers'd, and
which doth not depend merely on the Alienator's
Pleafure or Humour,
4ip
III. We (hall exprefs the Nature of a Teftamenc
more plainly, and more agreeably to the Senfe of
the Roman Lawyers, if we call it, A Dahtrativn
'
of
our Will toiulmig the Siiuejfurs to cur Goods, after
our Deieufe, yet
fuch as is mutable and revocable at
our Pleafure,
xuhilft we live, and which creates a Right
in others to take Place only, when we are gtne. Con-
cerning which Mutability the Law of general
Kindnefs commands thus much, 'that no Man, un-
lefs on Account oj his Demerit, be wheedled and ca-
jiil'd with
filfe Hopes ~, or be ridiculed and expifed.
V/hence, tho' we can hardly difapprove of what
Pliny
reports of Domitius Tullus, who had chous'd
fome hungry Rafcals in the wicked Tribe of the
Ha:redipetix
; 0:hers on the contrary, fays he
*"
,
am-
mended this Humour
; in that he fruftreted the ivil
Hopes
cf fuch Men, whom, confiJering the PraElics
of
the Age 5 , it is a Part
of
Pruder.ce thus to deceive
'-
.-
yet Valerius Maxitnus
''
had good Reafon to cen-
fure
Q^
Ca:cilius and
7".
Barndus, of whom the for-
mer pit a Trick of this kind on L. Lucullus, the
latter on Lentulus Spinther, their greatefl Friends
and Benefaftors.
IV. Whether thefe Teftaments owe their Origi-
nal to natural or to pofitive Law, is difputed a-
mungft the learned. The Meaning of which Qlic-
ftion is not, Whether a Man be obliged by the
Law of Nature ro make a Will (for that certainly
is in every Man's Clioice, unlefs fo far as it proves
neccfiary to prevent Qiiarrels amongft his
^
Rela-
tions) but whether after Property hath been intro-
duc'd, it neceiiarily tollows trom the Nature of
that Eftabiifhraent, that a Man may etfettually dif-
pofe of his Goods by Will , or whether this Pow-
er is granted to Proprietors by pofitive Conftitution?
Grotius's Judgment
^
in the Cafe is, Th it a Tefta-
ment, as many other Acls, may indexed receive a par-
ticular Form from civil Ordinances
;
yet the EJfeiice
and Subftance of
it is nearly allied to Property, and up n
Suppofition
cf
Property, belongs to the Law
of
Nature.
Or, that the Power of difpofing effettuaily of what
we poflefs, is deriv'd irom the Law of Nations
'
,
which the Civilians term fus
Primariu?!}, the hrft
or principal Law ; but the Reftraint which lies
upon us to difpofe of them only after fuch a cer-
tain manner, is owing to civil Appointment. In
regard to which Aflerticn, 'tis not improbable.
="
WA. fiipra,
1. iii. c. 5. f.
5.
*
Lib. viii. Epift. 18.
"^
Add Li/cian in Dialog. S:!.':yl- Sc
PolyJJrat. Tom. i.
p. 275.
Edit. Amji.
"
Lib. vii. c. 8. f.
5,
8.
'
Comp. i/5z. xxxviii. i.
f
Lib. ii. c. 6. . 14.
Mr. Barb. NO TES en
. iii, iv.
^
Their Words .ire, Teflrtmentum
eft
voluntatis noftrre jufta fententin, de eo quod qui; pofi mortem funrn fieri
velit. Dig. 1. -txviii.
t. I. I^i teftamenttt facere poffunt, &c. leg. i. Ambidatoria enim cjl voluntas defunfei ufqiie ad vitcs jupremum exitum, 1. xxxiv. t.
4.
De adimendis vel transfcrendis iegatis. Sec. leg.
4.
^
Hear what the Oracle of Gafcoi^^rie (which is the Title that the Abbot of St. Realm his Preface to Cicero's EpiUle to Attian
gives Montagne) fays,
"
I now fee 'tis time loft to beftow much Pains in Cotirtfhips ; one Word ill conftrued blots out the Merit
"
of Ten Years. Happy is he that can hit the time, pleafe their Humour at the laft Gafp ! The neareft Aftion pleafes
moft
;
"
not the bell or moft frequent good Offices, but the frefheft and moft prefent do the Work. Thefe Men manage their
Wills as
"
Apples or Rods, to encourage or correft every Adlion of their Dependents. 'Tis a thing of too much Attendance
and Weight
"
to be thus hurried every Moment, and againft which wife Men refolve once for all, relpedling, above all, Reafon and
publick Ob-
"
fcrvation. Effay, 1. ii. c. X.
p, 284, 285.
"
See alfo a fine Paflage in Mr. de la Bruyere's Charaders, in the
Chapter about
certain Ufages, printed at
Bruffcls
in
1697.
The Charafler begins thus ;
"
It is true, there .ire .i fort of Men whofe
Will nothing
"
can determine but Death, becaufe fo long as they liv'd they were never rcfolvcd nor quiet, isSc-
3
The Latin is, Alii contra hoc ipfum laudihus ferunt, quod {Domitius Tullus, cum
fe
captandum prrebuiffet] fit
frufiratus
improhas
/pes hominum, quosfic decipere pro moribus temporutn prudentia efh
See alfo what is faiid .above, 1. iii. c. ?. f 5.
n. 3.
As to iuch Men
in general, and the Right which their fervile Addreifes to gain an Inheritance, when they arc fuccelsful,
gain, read two curious
Difcourfes of Mr.
Jhomafius i the one intitled, De Jure injufto Heeredipctarum, publifii'd at Hall in Saxony in 1695,
and the other,
De Captatoriis Inftitutionibus, ini(Jg6, and reprinted in
1703.
I
' The Diftinftion of the Law of Nations into primaeval and fecondary was not made by the Roman
Lawyers, but their Inter-
I preters. Moreover, the Power of making Wills ought to be referred to that Right of Nations which they call iecondnry, and not
I
to the primeval, which is nothing elfe, according to lliem, but the Law of Nature taken in the Senfe which I have elfewhcre ex-
plained it, 1. ii. c. 3. f 2.
H h h a
but
420 Of
Wills and Teflaments,
Book
IV.
but that fome Scruple mav arife
^
. Foe fince the the Command of his Goods during Life, difabling
tilings, over which Prope'rty was firft eitablifhed, him to extend it farther, and to have left to tHP
are dehgned only to ferve the Uies of Men in Care of the living the Management ot what be-
this Life, and fince the dead lofe all their Title long'd to the Dead, who are no longer Members
to worldly Pcfleffions, it feem'd not altogether of human Society.
fo needful, that Property (hould contain in it a Farther, fince Death removes Men from all C^n-
Power of ordering what fhould become of a cerns below, it feem'd that the Difpofals and De-
Mtii's things after his Deceafc. But it might clarations made in their Life-time might be af-
have been fufficient to have allow'd every
Pcrfon terwards negkfted with Impunity.
Mr. Barb. NOTES on . iv,
2
Our Author in my Opinion makes a Difficulty where there is none. I am miftaken if his falfe Notion about the Original of
Property, which we have above confuted, h.ith not made him without Rcafon rejeft Grotius's Judgment, and multiply Beings with-
out Nece'ffity. Another Author, which I have icen fince my firll Edition of this Work, alferts. That the Power of making Wills
is only from civil Risht, a Principle wcrfe grounded in my Judgment, as I have fhewn above, c. vi.
f
i. n. i. I fliall now only
fpeak of this Pofition of his. That the Right of Property ends and is extinft with Poflcfiion of itfelf See Mr. Byxkerjhtici's Ob-
fcrvation, 1. ii. c. 2. The Hypothefis bei'ng then confuted, 'twill be eafy to invert the Confequence. I afiert then, That the
Settlement of Property being neither founded on any Agreement, nor limited by the time of PoiTeffion, bat depending only jas
we hive (hewn) upon this. That every one has feizcd for ever of a certain reafonable Portion of the Goods of this World, which
naturally belong no more to one than another, it follows, that when a M.m hath appropriated to himfelf any thing after that man-
ner, no ether Perfon can pretend to it, unlefs he abandons it anew to the firrt Occupant, or transfers it to lome other
;
but he hath
a Right to difpofe of his Goods during his Life, and may leave them, as their Proprietor, to whom he pleafes, after his Death.
And truly I can't fee why this ftould not be a confequent of the Right of Property. Suppofe Men were immortal, fhould not 3.
Proprietor eternally prelerve the Right he has once gotten .? The neceifity of Dying, to which all Men are fubjeft, will permit
them to enjoy their Goods but a few Years, and then it is but natural to make up the Lofs, and perpetuate as hr as they cm their
Right of Property after their Death, by declaring to whom they will have it pafs ; and fo the Heir taking the place of the Dead,
and reprefenting him in fome manner, no other can pretend to his Goods any more than if he had poflefTcd them himfelf In the
CoJ( 'tis laid down as an uncontroverted Ma.xim, That Men can defu-e nothing more reafon.able, than to have a liberty to difpofe
of their Goods at their Death. Nihil eft
enim quod magis homiin'ms debeatur, quam ut Jiifrcmie
voluntatis, poftquam jam aluid velle
non poffunt,
liber
fit
ftilus, izf licitum, qugd ittrum non redit, arbitrium, 1. i. t. 2. De SacrofanBis Ecclejiis, leg. i. See the Paf-
fage of ^linailinn quoted below, . 5. n. 2. All the World agree. That Men while they live, and hold as it ^vere hand in hand,
may transfer to other-s, either abfolutely, or upon certain Conditions, the Right of Property which they have to a thing
;
and
why then m.ny they not do-the fame at their Death, and in a manner revocable or irrevocable ? I can't fee the great Difference th< there
is between thefc two things, efpecially if we confider the Donations in cafe of Death, of which this Author treats at the End of
the Chapter, and which without doubt are a Right purely civil. Further, the Goods which Men ordinarily leave at their Death
being ufually either the Fruits of the Indullry alone of the Proprietor, or things which are cultivated and improved by Care and
Labour, would it not be unjuft to have them aliandoned after his Death to the firfl Occupyer ; lb that he can't have the Satis-
fiftion before his De.ith of thinking that he fliall leave them to fuch Perfons as he loves .? 'Tis true, that (as Mr. Bynkerpoek fays)
the Earth was appointed for the Service of Men of all Ages, and that all Generations, that fucceed one another, ought to have a
Provifion for themfelves by their Labour and Travail. But it does not follow, that by natural Right, when a Perfon dies, he leaves
his Goods to fome body, as he mull necelTarily do, no Man being able to carry any thing away with him to the Grave
;
and there
are in the World befid'es things enough which belong to the firll Occupant, if we will take the Pains to find them out. Mr. de
Bynkerlhock himfelf acknowledges, that if every Man's Goods after his Death were left to the Plunder of others, il would caufe
infinite Diforders ; and therefore the civil Laws have regulated SuccelTions and allowed Wills. Farther, it is not necefiiiry that
they, to whom we difpofe out Goods, fhould know and accept, when we are alive, what we intend to beque.uh_them at our
Death. Our Author m.aintains, that in reality the Willof him who transfers his Right, and of him to whom it is transferr'd,
ought always to be united in a mutual Confcnt .it the fame time ; but in this he doth not agree with himfelf, for he acknowledges
above, 1. iii. c. g. . 4. Th.it a Gift is valid, though the Donor be dead before 'tis accepted by the Legatee, if he who ought to
declare it be only a bare Reporter of the Will of the third. As to the dead Perfons themfelves, they have nothing to do with the
things of this World ; but it doth not follow that they never had, while they were yet alive, a Right to order the difpofal of their
Goods after their Death, but only they are not in a condition to make it of Force themfelves. If the Antients, as our Author
fpeaks, m.ide their Relations fwear to perform the Orders they made when they died, 'twas to engage them more flriftly by an
Oath, and not that they believed no other Reafon fuliicient to oblige them to fulfil the Will of a Perfon dead. We fee that in
the highcll Antiquity fuch, as were not Members of any Society, difpofed of their Goods before they died, without Controul.
Abraham''^ Example is remarkable; he had Parents in Charran, in MeJ'ofotamia, and without going far; he had with him in Ca-
naan, where he dwelt, his Nephe^v Lot ; neverthelefs, when he thought he fhould have no Children, he defigned to exclude all
his Relations, and make Eleaziir, his Steward or chief Slave, his Heir, Gen. xv. 2. We mull then conclude, that a Power of
difpofing of our Goods in cafe of Death, in a manner cither revocable or irrevocable, refults from the Right of Property, and bj
Confequence is founded on the Maxims of the Right of Nature and Nations. So that if the civil Laws prefcribed certain Limita-
tions and Forms to that Power, it proceeds from the Authority which the Sovereign hath to limit the Right of Property, and to re-
gulate the Ufe that Citizens ought to make of their Goods ; as you may fee, 1. viii. c. 5. . 3-
following. In fine, what I have
faid is fo true, that our Author himfelf, after an ufelefs Circle, returns again to the fame Point, and in the following Chapter
builds the Succeflion to a Perfon intellate upon the Prefumption of the Will of the dead Perfon. All the Difference is, that inllead
of making the Power of difpofing of his Goods at his Death to depend upon the Right of Property, he refers it to a tacit Agree-
ment of the People, by which he fuppofes, without Neceflity, that they entred into a common Covenant to put fuch a Strength
in Property, as according to him it had not before. This Notion is the more fatisfiftory to me, becaufe Mr. BudJeus, in his
Difcourfe intitled De Tefiamentis Summorum Imperantium, maintains alfo againll the Opinion of our Author, That the Power of
making Wills proceeds from natural Right, and not from civil only. He alfo there obferves among other things, that the Difpofals
of the Telbtor can't be executed without the Confent of the Heir
;
yet the want of that Confent does not deprive the Teilator
of that Right which he hath by Nature to difpofe of his Goods; a Right which hath fuch a "Virtue and Efieft, that no Man can
lawfully appropriate to himfelf the Goods of a dead Perfon, before he knows whether the Heir will accept the Inheritance devifed
to him, or no. If this be obferved, the Will of the Dead is fully fatisfied, becaufe without doubt he intended not to force his
Goods upon his Heir againll his Will. The Heir alfo has fome Right during the Life of the Tcflator, altho' 'tis not irrevo-
c.ible, nor becomes his 'till the Teilator is dead, without a Change of Refolution. They, who affirm the contrary, are fallen in-
to this Error for want of diftinguifhing well between Als imperfeft and not confummate, and fuch as arc null and ot no effedl.
It is certain, that by natural Right a Will can't be entircy fulfilled, 'till the Heir accepts of the Succeffion after the Death of the
'j'ellator, yet it doth not follow that before that 'tis a vain Aft, and of no Force. It is valid fo far as the Nature of the thing will per-
mit, and in this, that no other Perfons can claim the Goods of the Deceafed, until he that is appointed the Heir refales to inherit.
The rell of Mr. Buddeuri Difcourfe is worth the reading. At prefent I fliall only obl'erve, that Mr. Tho/nafius, who heretofore forfook
the Opinion now oppofed, is returned to it again ; but I can't find that either in his Fundam- Jur. Nat. W Ge?it. 1. ii. c. 10. . 9.
t^c-
nor in his Difcourfe, De Origine Succejfionii TeftameHtaria; printed at Hall in 1705,
he has confuted any of the Reafons now laid
down. In a Word, whether it be advantageous to civil Society to leave every one at their Liberty to difpofe of their Goods by
Will, is a QMcllion of a dift'erent Nature, and which our Author himfelf will treat of in the laft Paragraph of the following
Chapter.
u
Chap.
X.
Of
Wills and
Teflaments. 42.1
Id
cinerem & manes credis curare fepuhos
*
?
Think you cold Duft and Shadows feci fuch Cares ?
An Evidence of this it feems to be, that the moft
antient Men we read of in Story were wont to
engage
their Friends by Oaths to fulfil their laft
Commands, as if no human Bonds were ftrong e-
nough to oblige them in tliis Cafe. See Gen. xxiv.
2, 3.
xlvii. 29. DiiidoY.Sic. 1. ii.
p.
iip.Rd, Rhodom.
c. 33.
fpeaking of Parfudes's Death.
Thus too in Sophocles {Xrachin. 1192, &c.) Her-
cules requires an Oath from Bil/tn, for the Perform-
ance of his lafl Commands.
So Cuiiftanthms Ducas obligeth his Wife Eudocia
by Oath never to enter on a fecond Marriage after
his Deceafc. Yet by what Stratagem fhe recover'd
her Writing from the Patriarch, who had the keep-
ing of it ; and how, as if flie had hereby been re-
leas'd from her Engagement, is very flrange, fhe
marry'd
Diogenes, we read in Zunar. Tom. iii. in
Eudocia, and in Michael Glyc. Ann. Tom. iv.
So in Jfepbus (Archaoltg. Jud. xvii. 10
)
Herod's
Commai.ds for flaying the chief of the Jews are
negieded by his Sifter and her Husband. So
;
yujjerat hac rapidis aboleri carnnna
flammis
Virgilius, Phygium quje ceciaere Ducem.
luaa vetat, Variufq^ue Jhnul ; tu, masime Cafar,
Non fuiis.
Virgil thofe Strains which rais'd the Trojans Fame,
Dying, bequeath'd to feed th' injurious Flame.
Tucca and Varius flop the rafh Dcfign,
And you, great Cafar, fave the Glories of your Line.
Dio Cajjtus, lib. lix. relating how TiLerius's Will
was declar'd null by Caligula and the Senate, adds
this Reflection, That no Cojtnfel or Forejjght can pre-
vail againfi
the Ingratitude
of
Men, and the Power
of
Pvfterity. To which may be applied that Saying
of Lucan,
Ntilla
fides
rebus
poft
terga reliUis, 1. ii. v. 628.
In vain we truft to things we leave behind.
Therefore 'twas at the Pleafure of the Survivors,
whether or no a Man's Will fhould take efieft, even
after he was dead. And confequently they were to
determine by fome Agreement amongff themfelves,
how far they fhould comply with the Defires of
thofe who had now lofl the common Rights of Men.
Without fuch an Appointment any precedent Dif-
pofal would have been vain and ufelefs, which the
Author could not, and others who could would not
maintain and put in Execution.
But, on the contrary, it manifeflly appears, that
'twas not fufEcient, in order to the Peace of human
Society, to introduce fuch a Property or Dominion
of things, as fhould turn only to the prefent mo-
mentary Ufe ; but 'twas needful to make it fuch
as Qiould hold good hereafter : Man, fo far as Na-
ture allows, having no lefs a Right to preferve
Lite for the tumre, and to provide Means towards
obtaining that End, than for the prefent Moment.
To which it we add, That we are enjoin'd to take
a particular Care of thofe who are allied to us in
Blood, whofe Race we wifh may continue to an in-
definite extent of Ages, it will on the whole ap-
pear to have been conducive to the Peace of Man-
kind, not to make the Force of Property depend on
any fix'd Period of Time ; lincc this would have
created no lefs Confufion and Trouble than the pri-
mitive Community : But to affign it, as 'twere, an
Indefinite Duration, by means of which it might
pafs down and be continued to others. Now as to
the preferving and the continuing this Pioper:y,
thofe who live in a ftate of natural Freedom, ap-
point Means according to their own Judgment.
But in civil Governments, as it is fupporred by the
publick Strength, fo it hath been va-iouOy tem-
per'd and retrench'd, as particular Nations have
at any time thought it to be for their Intereft.
As for the Notion invented by the Author of the
Nev: Method
of
Law
+
, I queffion whether it will
meet with the Approbation of found Judges,
T'e-
jlaments, fays he, by meer Right, that is, without the
Confirmation of
civil Ordinances, would be
of
no force
or weight, unlefs the Soul were imino.tal ; but becaufe
thofe who are taken out of
this World do really
ftill
live, therefore they remain Proprietors of
their Goods
j
and thofe whom they appoint their Heirs are to be
look'd on as their Stewards and M.ma^ers.
V. But as no one will be forward to maintain,
that for a Man to be able to difpofe of his Goods
at fuch a time as he is the true Proprietor, and to
fix the EffecS of his Dilpofal on a time when he
fhall not be Proprietor, is repugnant 10 the Law
of Nature : So, on the other hand, it doth by no
means appear that this flows by any neceflary Rea-
fon from the ElTence of Property.
Thus much indeed flows from t'lence. That a
Man whilft alive may confer a Right to his Goods
on another living Perfon, which fhall not be ex-
tind upon the Death of the Collator, being ftill
kept alive in the other Party who furvives.
For
inafmuch as the Efficient and the Effedt are
diftinft
and feparate Beings, there's no Necefliiy that the
latter fhould always die with the former.
And
therefore, as a Man in his Life-time may fully
transfer fomewhac which he pofleffeth on
another,
who fliall not lofe the Property of it by the Death
of him from whom it was receiv'd ;
fo nothing
hinders but that a Man may make over the Pro-
perty of any thing to fome Perfon elfe, yet fo as to
referve ffill to himfelf a certain Right over the faid
thing during his continuance in this World.
Hence
in the moft antient times we find the Fathers
of
Families difpofing of their Goods at the
Approach
of Death
'
;
(for as to the Paffage in Gen.w- 3.
Abraham feems not to have already made his Ser-
*
Vid. Virgil. JEn. iv.
34.
Mr. Bar b. NO TE S on . iv, v.
* This Notion is abfurd, and contrary to what is faid, Ecc/ef. xi. 19. and Luke xii. 20. and fo is juftly
difapproved by our Au-
thor. By the Title I guefs the Author of it to be the famous Mr. Leibnitz, who publiih'd a Work under
that Title cxaclly at
fr/7.^/ir; upon the Mifi in
1703 ; but having not feen it, I am not pofitive.
re- re
'
By this it appcirs, that it w.is a Cuftom in the Times of the Patriarchs to difpofe of their
Goodj as they faw Jit in cafe ot
Death. But if we examine the Paffages of the Old Telbment which our Author quotes, and are fet down in the Margin, we fhall
fee that they prove not what he would infer from them, that the transferring of Property was made
among the Living, and, as it
were, from hand to hand.
vant's
422 Of
Wills and Teflaments.
Book
IV.
vant's Son his Heir, but only to have thought of
making him, in cafe he happen'd himfelf to die
without IlUie) yet fo, as that they themfelves o-
pen'd and pubhfh'd their Will to their Children,
that thefe, by acquiefcing in it, migiit feem to
confirm it by mutual Covenant amongft themfelves.
By this means the Right immediately pafs'd from
the living Parents to the living Children ; and the
latcer were admitted prefently, as 'twere, intoPof-
feflion of the Goods. And 'tis probable, that
thofe primitive Men, who foUow'd fo plain and
frugal a way of Life, commonly were not cut oft
by our fudden and violent Diftempers, but decay'd
leifurely by the gentle wafting of the radical Moift-
ure ; fo that they were Mafters of their Reafon
to the laft, and were never fummon'd by Death
unawares, and upon a Surprize
^
.
After the fame manner CyfUi, in Xenophon
^
, al-
lots his Sons with his own Mouth the Divifion of
their Father's Fortunes. And indeed thefe laft
Difpofals ought to obtain great Favour and Al-
lowance ; it being thought no imall Comfort un-
der our mortal Condition, that what a Man hath
labour'd for in his Life, fhould afterwards fall to
that Pevfon rather than others, wiiom he particu-
larly choofeth and defires
-
. '7ii ejiaklijhed, fays
Qjiiiictilian
"^
,
l>y the Laws and Cujloms
of
the State,
that m often as it can pvffibly be done, the Teflaments
of
the deceas'd fhould be jlyiElly obe)ed. And this upon
no ordinary Grounds and Reafms. Fur there feems no
greater Confulation in Death, than to have a Will
which fhall h Id good after Death, Othrv:ife a Man
?}!ight think an Eftate
a Burthen, if he bad not the
full Difpofal of
It ; and
if
all the Right a-hich ue are
al/o'iv'd to have over it, uhilfi we live, were to be taken
from us when we die. Nor is Statius's Refleftion on
Banennefs unworthy of Confideration :
Oi bitas omni fugienda ntfu,
Qjiam premit votis iriimicus hares,
Optimo pofcens ipudet heu I) propinquum
Fiinus amico.
Oi bitas nulla tumnlata
fletu
.'
Stat domo capta cupidus
fuperftes
Itnminens leti fpoliis, ciT ipfum
Computat ignem.
From Barrennefs, good Providence defend !
Which feeds the Wifhes of th' ungodly Heir,
Begging the fpeedy Funeral of his Friend.
Barrennefs buried with no parting Tear
!
The eager Succeflor in th' empty Seat
Stalks like a Viftor in a Fortrefs won.
Greedy to faften on the Spoils of Fate
;
And counts, with grudging Care, the Charges
of a Stone. Sylv. iv. vii.
34,
&c.
Add to thefe a Paffage out of Pindar, who thus
fpeaks,
%mv jtotiJ^ivse iitKyirov uhXirfiov
QvMTMVTt e^uyepirciTog.
Od. X. ver. io<5, &c.
The Rich Man mucli doth grievcj
That when this World he leaves.
Strangers his Wealth receive.
VL But the Queflion under Debate doth not pro-
ceed fo much with regard to thefe aftual Difpofals
during Life, as to thofe Teftaments by which
a
Man fo conveys his Pofleffions, as to retain the
liberty of altering them to his laft Breath, fo that
the Right of the Heir to the refpeftive Goods fhall
not commence 'till the Teftator's Deceafe : Wliicli
Method of Appointment many have, with very
good Reafon, preferr'd to that other, but now
mentioned, by which Men upon the Brink of Death
diftributed their Goods amongft theit Heirs with
their own Hands. For fome fudden unfoicfecn
Fate frequently either hurries Men out of the
World, or however removes them far from their
Friends, fo as they want Time or Opportunity to
exprefs by Mouth their laft Refolution.
And again, Perfonswho feem'd to have had more
than one Foot in the Grave, have o/cen by fome
ftrange Turn recover'd their Health, when they
utterly defpair'd of it. And it waslikewife judg'd
more convenient, that a Man fhould difpofe of his
Goods rather vvhilft he was in Eafe and Qiuer, and
Mafter of a found and clear Reafon, than when he
was trembling at his laft Hour, or when his Mind
was fliock'd and weakened by the fotce of his
Diftemper.
Befides, it was more advantageous for each Per-
fon to remain Lord of his own PolTcfllons to his
final Gafp, and to give no Man fuch a Right over
them as could not, without Inconvenience, at any
time be revoked, when either the Merit of the Par-
ty, or his own Inclination fhall alter
'^
. (As the
French tell lis, 'Tis frnfelefs
to put
off
cur Chaths be-
fore we are near going to Bed.) For tho' the Con-
veyance of Right, in this Cafe, might be made re-
verfible, or fuch as the Conveyer might difannul,
upon appearance of fome Condition,
either cafual
or voluntary
'
, on the part of him to whom the
Conveyance was made
;
yet the Doubts which muft
nectllarily have arifen about the proof of this Con-
dition, and which each Perfon would have urg'd for
his own Title, muft have occafion'd endleis Dif-
putes. At leaft he, who had been once declar'd
Heir, would have conceiv'd the higheft and moft
mortal Rcfentment againft the Difpofer, fhould he
for any ilight Reafon be depriv'd of what he had al*
ready feiz'd upon in Hope and Expectation. Ma-
ny likewife hax'e expos'd themfelves to very great
Dangers, by openly naming their Heir too foon-
Thus Caligula, when Perfons had put him down in
their Wills amongft their Children, and had made
open Profeffion of it, and yet ftill liv'd on, gave
them the Name of Mockers, and fent many of them
a poifonous Mefs to difpatch them
^
.
When Herod had taken up a Delign of dividing
his Kingdom amongft his Sons, Auguflus forbad him
to proceed, ordering him, fo long as he liv'd, to
>
See Gen. xxv.
5,
6.
'
DeclMn. 308. frincip.
xlviii. 22. Deut. xxi. 16, 17. i
'
See Zirac. xxxiii.
20, 6fc.
Kings i.
35-
Sirac. xxxiii. 24.
''
CyropceL
'
Suejton. Calig. c. 38.
Add. Sueton. Galb. c.
9.
1. viii. c. 7.
Liv. 40.
c.
54.
Mr. Barb. NOTES on . v, vi.
*
His Words are, Et in more civitatis, l5f in legibus
ptfitum eft,
ut quotient fieri
potuerit, defunlloram teftamento ftetur,
idqut
nin nediocri ratione. Neque enim aliud videtur foUtium mortis, quam voluntas ultra mortem ; alioqui pot
eft
grave videri ttiam ipfum
patrimonium,
fi
non integram legem habet, is" (um mnejus nobis in id permiltatur viveatiius, auferatur morientibus,
'
See lib. iii. c. 8. L /^.
keep
Chap.
Xe
Of
Wills and
Teflaments.
keep
botli his Kingdom and his Sons in due Siib-
ieftion
^
. As the Family of Auguftus himfelf was
afterwards
diftracted with a very fatal Emulation,
upon
his uamiug a Succeflbr in his Life-time : It
hath
therefore been thought fafe to take care Mens
Wills
fhould only be publifli'd after their Death,
that they may bring no Odium, and no Danger
upon them, whilft they live.
On the fame Ground it hath been look'd on as
a moft
detellable and barbarous Vi lany to unfeal
and divulge a Teftament during the Life of the
Teftator.
So when Cafar^ upon the breaking out
of the civil War, caus'd Antony's Will, which he
had depofited in the Hands of the Vt/ial Virgins,
to be rehearfed in open Senate ; many took very
grievous Offence at the Act. For, as Plutarch ob-
ierves
''
, they judgd it to be
moft monftrons and un-
reafonable, that a Alan Jhould be obliged to give an
Account, ivhilft alive,
of
thfe things which he intend-
ed jhould be done after his Death. Efpecially lince a-
mongft the Rmans 'twas an ufual thing to give
Judgments and Characters of particular Perfons in
thele lail Infiruments
^
. As appears from frequent
Inftances in Tacitus. Add. leg. i. f. 38. D.
Deprjiii,
Li. f. 5
D. ad L. Cornel. De'palfis.
Nv'W the' the Reafons here aliedg'd, and othets
the like hignly recommend to moftNations thisway
of final Dil'pofal, yet we cannot hence evince, that
fuch Tcftaments do naturally flow from the Propri-
ety of things, and confequently are prefcribed by
the Law of Nature. For the' we Hiould fuppofe,
that by the common Confent of Mankind fuch a
Force was granted and affi-\ed to Pnperty, as that a
Perfon might conftitute whom he pleas'd to polfefs
his Goods after his Deceafe
;
yet that this fhould
be done in fuch a particular manner, whereby both
the Teftator's Will fhould remain ambulatory or
changeable during his Life 5 , and the Right of the
Heir not begin 'till the Teftator's Death, and the
Party who is Heir not know fo much 'till then ; all
this is invented and eftablifh'd by pofitive Ordi-
nances. For otherwife, in transferring Right from
one to another, according to the regular Courfe, it
had been necefl'ary that the Confents of the two
Parties fhould exift together at the fame time*,
and, as 'twere, meet and unite : From which Uni-
on the Tranflation of Right is conceiv'd to arife.
But now in the Cafe before us, 'cis fo far from be-
ing neceflary, that the Confents of the Teftator
and of the Heir fliould be united ; that there is al-
low'd an Interval of Time, even between the Death
of the former, and the Entrance of the latter ; the
Jofephus Antlq. Jud. 1. xvi. c. 8.
4^3
Law, in the mean while,
fupporting the Heir's
Right, which might
otherwife fiuk.
VII. It is wont likewife,
with great Pains and
Labour, to be difputed
; Whetiier the Heir by Will
can with a fafe Confcience enter
upon the Inherit-
ance, when the Will was defedive in any Pouit of
Form required by civil Ordinances ? As hl.cwife,
Whether the Heir at Law, or he who was to fuccced
in cafe the Party had died inteftate, can honeftly
overthrow fuch a Will, upon failure of thele For-
malities, tho' he is aflut'd that the Teflator feri-
oufly defign'd to bequeath hi? Goods to the Perfon
there fpecified ? Thole who take the negative fide of
both Qiieffions, rely chiefly on the Hypoihefis for-
merly mention'd ', that the making of Wills is a
Piecept of the Law of Nature. Whence they con-
ceive that he, who overthrows a Will tiius defect-
ive, may indeed defend his Pioceediiig in outward
Cognifance, or in civil Courts, but not in the in-
ward Judicature, or in the Courc of Confcience.
For the thorough Underfiar.ding of th. ie Mat-
ters we ought beforehand to obfervc, that national
Laws are icarce in any Point more careful, or more
flriftly exaft in requiring certain Forms and Cere-
monies, than in Teuaments,- as well to prevent the
many Frauds and Jnglings which might creep iito
thofe written Infiruments, as to cue oft" chofe moft
grievous Contentions, which Avarice would have
rais'd upon the Cafe; fcarce any thing being
g
;tten
with lefs Pains than a rich and plentiful Inheritance.
Hence, inafmuch as every Perfon of competent
Years, and not flufidly rude and ignorant, is pre-
fum'd either to ha\e known himfelf, or to have been
able to learn from more skilful Heads, after what
manner the Laws of his Country cmmand Tefta-
ments to be made ; no one is fuppofed to have ex-
ptefs'd his ferious Refolution in fuch a way as he
knew would not hold good againft tiiofe who fhould
oppofe it in Court ; efpecially confidering that Men
are allowed fo vaff a Time for the fettling this Bu-
fineis. When therefore a Teflament is found dila-
greeable to the civil Conflitutions, 'tis eafiiy pre-
fum'd tiiat there hath been feme fraudulent Con-
trivance, or diat the Telfator cither was not well
in his Wits, or elfe drew up the Inlfrumer.t negli-
gently and haftily, and more by the Infligation of
others, than by his own free Motion : So that the
only End and Dellgn of thofe Forms was, that a
forged Teflament fhould not be fet afoot inflead
of a true one
; or a fudden and unndvis'd Impulfe
be admitted for a deliberate Refolution : Efpeci-
ally lince, without any fich Aft, the Law calls to
'
In Anton, p. 942. Dio
Caff.
lib. 1. calls tliis Acl of Co'/.r, A vioft
unjuft Proceeding.
Mr. Bare. NOTES en . vi, vii.
'
See Mr. 7'A(iw,7/,7/s Difcourfe, alre-idy quoted, De Captatoriis Injlitutionibus, <j. ig. You'll find in the following Pangraphs
ni.my curious tilings about the Cautions that the Romans took to hinder Men from being put into Wilh.
^ I own, that a wile Man ought to difpofe of his Goods, and ought not to ch.mgc his Will raflilv or out of an Humour, as they
do, of whom Mr. tie In Bruycre fpeaks in a pleafant Railery in the Place I referred to above.
"
A peevini Man as long as ther live
"
puts them into his Will, they appeafe him, and tear their Dr.iught, and throw it into the Fire ; they have as many Wills in their
"
Cheft, as Almanacks on their Table ; they m.ay count them by the Year." But it doth not follow from hence,that they may not
by a natural Right difpofe of their Goods in cafe of Death, but in an irre\-ocable manner. On the contrary, as upon the moll
mature Deliberation "tis eafy to miibke in the choice of his Heirs, or fu.Ter himfelf to be deluded by fome cr.ifty Fellow, or change
one's Mind, fo alfo a thoufand unforefeen Cafes happen, from which great Inconvenience may arife, if the difpofals of cur Goods,
wliich we have once made, mull remain unchangeable. It is very natural, that no Man fliouidtie his own Hands, and that Deatli
alone fhould fix a Teftator's Will entirely. Without this the Right of Property will be limited where it ought to have the greatefl
Liberty, I mean, by the Difpofal of his Goods fort time, and fo be inevitably ffript of them through the fad Confequenccs of the
natural Condition of Mankind.
M2>Aov iVao-iw 01 yover? ri IE a-.Tiu % ri yivv>;9{VTa. o'ti \h thtuh ku) (xaAAov euvaKtMTXi to afp' JtS
yjvvije/iTi,
5
tJ rewanstov
t
l/a!us's Greek is, 'O yo'fioc avrii a'xoiiSmst tmOh. to. th xarfoi, xa, u SiaiiaSat ia stm to.fi xalSes yv^ffioi, Orat.
5.
And again,
Oixs yi? Si662> BTt SavBi a'5vi Bifv, lys^i Tww iaxiri, uvrj Twv ivyxTtfinv, lav ti; KaraAiT'-Jv
yvt^ciz; Tihe;r.
I i i t
gtvg
42.8 Of
Slice
ejftons
to Perfons Book
IV.
give and
bequeath, or appr.int any Method
of Siicce(fton.
But liithout fttch
Approbation they cannot adopt an
Heir, or put their Fortunes into other Hands.
Add. Lib. xlviii. tit, 20. Leg. 7.
Princip. D. De
bonis damnator.
'Julian in Cafarih.
J.
It is the legal Ciiflom to let
the Sons fucceed to what the Fathers pojfefs ; and this
is a Rule which we all de/ire to fee obferved.
Thus Valerius Maximus obfervcs. Lib. vii. C.
7.
Seft. 2. that the procreationis vinculum, the Band
of
Generation, is the ftrongell and clofefi Tye which
can atfedt Mankind.
That which fo highly favours the Childrens
Claim is, not only the Obligation laid by Nature
on their Parents to provide for their Maintenance
and good Inftitution, but likewife that ftrong and
vehement Affedion,
which can only be extinguifh'd
(and that very rarely) either by the enormous
V/ickednefs cf the Children, or by the uiiufual
Barbarity of the Parents.
IV. As to that Maintenance, which Parents owe
their Children
'
, it hath been doubted by Authors,
whether the Obligation to pay it were perteft or
imperfeft, or whether it belong'd to expletive or
to attributive Juftice
*.
'Tis the Opinion of fome,
I'hat Parents di indeed owe their Children Maiateiinnce,
but then 'tis by the latter kind
of
jujlice only, and not
by the fertner ; fo
that Parents would act very inhu-
manly,
fljould
they deny them this
A(f
fiance
;
yet Chil-
dren have no Right to challenge it from the?n againjl
their IVilh, thii being the proper Effect of
expletive
fuftice
: though civil Statutes may inie/l Children with
a full and p.rfefi R'ght in this Matter. But we are
rather inclined to think, That Parents lie under
a perfecl
Obligation to maintain their Children, fo
long as they ave unable to maintain themfelvesi
and this Duty feems to be Inid upon them, not on-
ly by Nature itfelf, but by their own proper Aft,
in bringing them into the World
^.
For they
would be in the highefl manner injurious to their
Ilfue, flioiild they have given the Children Life,
for no otiier Rcafon, but that they might after-
wards fee them perifli. By the Ac}
of
Generation
therefore they fecm to have voluntarily bound
themfclves, to endeavour as far as in them lies, that
the Life which they have bellowed fhall be fup-
ported and preferved. And thus the Children
will have a perfeEi Right of receiving
Maintenance
from their Parents, Yet this Right is hinder'd
from producing all its Eftcfts by the natural Weak-
nefs of Children under that Age, in which they
cannot provide tor their own Support. And cou-
fequently they do not fo mixh want Right as
Power and Strength to execute that Right
; only
in fome Points the civil Ordinances help them
out, and compel their Parents to keep and feed
them, upon refufal. Though, through the wife
Ordering of the Creator, the natural Afleftion of
Parents is ot fo great Force, as that, commonly
fpeaking, they joyfully undertake and difc.arge
their Duty, without the Compullion of the civil
Government.
V. Not only thofe things which ate neceflaiy
for the prefervation of natural Life tall under che
Term of Maintenance or Almwny, but thofe like-
wife which fit and prepare a Man for a focial and
civil Lite. And the former are due, 'rill fuch
time as the Children are able to fiipport them-
felves by their own Induftry. As for the Meafure
of what ought to be fpent on Education, in train-
ing up Children for a civil Lite
'
, it is to be fta-
ted according to the Fortunes of ti^.e Parents, and
the Genius and Capacity oi the Children. Thus
much at leafl: is required, "That they be enabled to
become hjtie/l and iifjul Members
of
human Society.
But this is a general Rule in the whole Atfair
;
"Tl.at as Nature doth not command Parents to pinch
and defraud their own Inclinations, and to make thtni'
Jelves mifrabte for the fike
of
thei, Iffue ; fo
a Parent
placed in a high and wealthy Condition is, no doubt, in
fault, ij he do not take care that his Children be brought
up after the mufl
exaEi and accomplijh'd Manner
cf
In~
fiittttion.
VL Under the general Name of Children
'
are
comprehended not only thofe of the firll: Degree,
but thofe too of tlie iccond, &c. whether defcend-
ing from Sons or Daughters ; in cafe their nearec
and more proper Parents are not able to maintain
them z .
Farther, Maintenance is due not to legitimate
Children alone ; but to natural, and evtn to in-
ceftuous Iffue 3
. For what Reafon is there that the
>
Vid. Grot- did. loc. Sefl.
4.
Mr. Bare. NOTESon . ni, iv, v, \i.
% His Words arc, na<o-ii> vofiifji5i/ Ititpetciv to;? SiaSoxi? xai t^to aratTt? f-'x''"'^'-
'
Every one alnioft knows, that among the antient Greeks and Romans 'twas thought that tliey had a Power to expofe or flay
their own Children, and that Chriftianity had much ado to abolifh that barbarous Cuftom, as appears by Mr. Noodt's Treatil'e, De
fartus expojitior.e
U
nece npud veteres, which was reprinted in
1 709.
-
See lib. vi. c. 2. . 4.
following.
'
See lib. vi. c. 2. . 6, 1 2. following.
'
Liberorum appellatione nepotes iff pronepotes, crtterique, qui ex his defcer.dtint, continentur
The Words of Agef.laus are fo mifreprefented by our Author for want of tliroughly underflanding the Greek, that I have
thought fit to give the Reader a new Tranilation of them. Agefihius then alledgcs,
"
That Agis never own'd Lc.tychides for his Soii,
"
and that Lcoiychides his Mother, who mull needs know better than Agis, had difo'An'd that fhe ever bore him (fur then; is no fuch
thing in /"/.YMn-A, as that he exceeded his Father in Comelinefs of Body, as our Author trandates io?.u kkpiAiow ^ke/vh, which llgnifies
only better than he)
"
That by an Earthquake caufed by Neptune, Agis was tofs'd out of hi; Bed from his Wife in the fight of all the
"
World, which evidently proves, that he was not the Father of Leotyehides, which was better confirm'd by the time of his Con-
"
ception, which is an infallible fign in thefe Matters. For when Leofyebides was born, it was ten Months after Agis had efcaped,
'
and never after lay with his Mother.
"
See alfo Plutarch in the Life of Alcibiades, p. 203. Edit. Steph. Thefe Reafons are
not very concluding. See upon the laft Article 'Joan.
Vincent. Gravinie Origines 'Juris Civilis, 1. ii. p. 301, feV.
'
See Dr. Po/^r's Greek Antiquities, l.iv. c. i 5. in fine,
and Ij'a.u Cajattbon^v^ari Dijgenes Laertius, 1.1. .
94.
*
Antenir (in Dillys Cretenf. 1. iii. c. 26.) rcfolv'd to banilli his Son Glauais from his Family, for making one of Paris's Copi-
pany at the ftealing of Helen.
Ejnity
Chap.
XL v)ho die
inteflate.
Eonit^
of that
Right term'd, The Right
of
Reprefem-
ation ; by
virtue ot wliich Chiidren are fuppos'd to
till the
Place ot their deceas'd Father
'
, fo as to be
allow'd
the lame fli^rc in the Family Inheritance,
as
their
Father, were iic now living, would receive;
and
coi'ifequently to fucceed on the level with thofe
who
(land in their Father's Degree^. And it
would
indeed be a lamentable Misfortune, if, be-
lides
the
untimely Lofs ot their Father, tiiey fhould
tardier
be depriv'd of vi-.ofe Puffcjjhm-, which either
the
Rtile of the Law, or the Dtiigu of their Proge-
nitors
had given their Parents juft hopes of enjoy-
in"
"
But it in any Plare the civil Confiitittions
win
not admit ot tiiis veprefentative Right, the Chil-
dren,
who have been fo unhappily bereav'd of their
Father
and of their Hopes, mufl endeavour to bear
che
Calamity as an Ailiidion which Providence
hath
laid upon them.
XIH.
Upon failure of IlTue in the firft, and the
other deicending Degrees,
^
Reafon fuggefted that
Inheritance ought to turn back into t!ie Line of
Af-
cendents ; as well in confideration that, for the moft
part, either the Prjfi-jfivni themfelves, or at leaft the
firif Seeds and Principles of them, which the Chil-
dren afterwards increased, proceed from the Pa-
reiitSy as becaufe their extraordinary Benefits give
them anefpecial Title to this Reward : Who lince
they would much rather have defired, That their
Children fiould
inherit their Fortwies, yet when they
lurvived them, contrary to the ordinary courfe of
Nature, 'tv^'as but equitable they fhould receive,
however, this melancholy Comfort, of fucceeding
to what the Children poflefs'd. 'Tis a Condition
(as Pliny obferves) abundantly unhappy,
for a Father
to be thefok Heir
of
his own Son
'
. Panegyr. c.
38.
Vid. l.v. t. 2. I. 15. D. De
imffic.
te/iam. Lib.xxix.
t. 4.
D. Siquis, cmijfacaufa, O'c. leg. 26. Cod. lib. iii.
t.
28. De
inpjfic.
tepam. & t. 2j. De Inftitut. <ijc.
leg. p. & Lib. vi. t. 56. ad Senatufcnnf. 'Tertull.&
Lib. iii. t. 5.
de fenatufconf. Tertull.
Philo the Jeiu
*,
reporting. That Mfes eftablifti'd
this Order of Inheritance, T^hat the Sons jhould
fland
fiyfi,
the Daughters next, then the Brothers, and in the
fourth place the Uncles by the Father's
fide, ufeth this
as an Argument to prove, that Fathers like wife may
inherit what their Sons leave behii.d ; For 'ttvotild
be fenfekfs (fays he) to imagine, that the Uncle Jhould
be atlovj'd to fucceed his Brother's Son, as a near Kinf-
man to the Father, and yet the Father himfelf be a-
bridgd of that Privilege. But inafmuch as the Law
of
Nature appoints, that Children
Jhould be Heirs to
433
their Parents,
and not Parents
to their Children,
Mofes
pajjed tins
Cafe over in Silence,
as on.inous and unlucky,
and contrary
to all
pious
Wijhes and
Deftres Lefi the
Father and Mother
fiould
feem to be Gainers by the
immature Death
of
their
Children,
who
ought to be
af-
fliHed with mofi inexprejjlbh'
Grief Yet by allowing the
Right
of
Inheritance to the
U.cles, he obliquely
admits
the Claim
of
the Parents,
both
for the
Prefervaticn
cf
Decency and Order,
and for the continuing
the
Eflate
in the fame Family.
Some Parents too have the
additional
Title of an
infirm and indigent old Age
; under which
lad
Condition their Children were otherwife
obliged
to
maintain them
: As one of the Attic Laws expielly
enjoin'd
^
. Ifaus Orar. \';i. The Lav: cmmauds us
to maintain our Parents, under which Nime are com-
prehended not only our Father and M:ther, but our
Grandfather. For thefe are the
fiyjl of
our Kindred,
and from thefe defend the Goods and Fortunes ivbich
their Pojlerity enjoy. Thefe therefore we are
neceffari-
ly bound to fupport, even tho they
Jliould have mthing
to leave us. A_dd. Grot. d. I. Seft.
5
. & Ziegler ad d. /.
Yet in cafe a leather hath wichout
Reafon grievoufly
hated and injur'd his Son, wichout any fubftquenc
Reconciliation, the Son may juilly exclude him
from the Right of Inheritance 3
. It's the fame
with him who expos'd his Son, when an Infant,
utterly ncgUaing his Support : For here no doubt
the Claim of the Foller-father,
who hath under-
taken the Care and Burthen of the Child's Educa-
tion, ought firfl to be admitted.
Nay, fartl.er it
feems reafonable, IMiat an adoptive Father fhould
in this point be preferr'd to a natural Parent; that
he may recover what he hath expended on bringing
up another's Child. We are likcwife to obfcrve, that
the Lawyers do not admit of Rtprejlmation in the
afcending Line, as they do in the delcendiiig
; that
is, if a Man die wichout IlTue, leaving a Father,
and a Grand-father by his Mother's fide, the latter
of thefe Hiall not be allow'd to make Claim in the
room of his Daughter. A Rule which feems to be
grounded on this
Conlideration,
That naturally the
Hopes ot Succeffion
do not afcend, but defcend :
y/herefore, the Son had indeed Hopes of fucceed-
ing his Father, and might tranlmic the fame Hopes
to his own Iflue
; but the Mother had never any
Hope or Defire of inheriting after her Children ; and
lo could not, contrary to the Order of Nature, con-
vey back any fuch Hope to her own Parents : And
confequently,
the nearer Claimant here excludes
very jullly the more remote +.
'
OiJ (xev ti )tuciyvi\ruo X'f'iov
Hverxi S; utv iraTpoi iiS.v xi'xvutiiust ti'S^. OdyJT. 8- ult.
'Cli avi^p Jl^l? T-CrOTOKTI (TUVTlIKt), iufiaTOi UV
Oreft. 806.
Further, we may confult upon this Qiieftion Mr. 5/zi/d'w;'s Difcourfe, intituled, De Comparatione oiligationum, qute ex
iivtrfis bo-
minum ftatibus oriunlur,
.35, i^c. among his SeleSla Jura Nat.
is"
Gent.
*
Aulus GelHus'% Words are, Convcniebnt outem facile, covftahatque ex moribus populi Romani primum jiixl/t parentis locum tenert
fupillos Jebere
fidei, tutelieque noftrte creditos
[Ji
ticcejfe ejjet in opera danda faciendaq; officio
alios aliis antefcrre'\ Jecundum eos proxi-
mum liicum, cliintes habere, qui
J'eje it idem injidem, fatrofiniumque nojirum dediderxnt, tarn in tertit loco
ejft hej'pites,
pofisa ejfe cog-
iintm adfinefque. Lib. v. c. 13.
Chap.
XI. "who die
tnteflatL
ing to the
Degree
of
Nearnefs in which they
flood ;
ye: in
tranfmuting PcJJejJwns this Method ot pro-
ceeding
was not in ths leaft regarded.. Farther, if
Frienxis,
in the cafe of imeflates, were at any time
to have the Advantage of Kinfmen, this would o-
pcn a wide Field for Qiiarrels and Contentions, as
well
amoiii;(l the Friends themfelves, if they hap-
pen'd
to be more than one, as between them and
the
Relations, For to take more Pleafure in a
Man's
Company, or to communicate Affairs more
freely
with Inm, is not prefently to be look'd on
as an infallible Token that he ff ands highefl in onr
Aftei^ion.
Many times a jocofe or eafy Temper,
Equality of Years, or Sagacity of
Judgment, ren-
der the Acquaintance of a Friend more pleafant
or more profitable to lis, than that of a Relation,
who
poiTibly may want the fame Advantages.
Yet when we arc about to difpofe of our Goods,
we are feldom fway'd by this Confideration to fa-
vour the former more than the latter. Hejiod's
Advice will here be good.
Let mt thy Friend thy Brother's Rights invade 5
.
La(ily, The Degrees of Kindred are eafily diffin-
guifh'd and rcckon'd up ; but who will undertake
to fettle the Degrees of Friendfhip in fo exaft an
order, as to leave no room for Cavil and Difpute ?
XVI. But ffill 'tis urged with better Pretence,
That thofe Friends at leaft are to be preferr'd to
Relations in the cafe of Succeflion to Eftates, by
whofe Bounty, Counfel, or Affiffance the refpedive
Eftate was acquir'd ; it being but equitable, that
the Goods Ihould return to the place whence they
originally flow'd. Yet here likewife there will be
moil plentiful Matter for Contentions; the cutting
off of which ought to be made the chief Aim and
Defign of all Laws. For a Friend putting in his
Claim with fuch a Plea, might be well anfwer'd
to this Purpofe : That either what he takes for
Merit was not the conferring, but the returning a
Kindnefs ;
or, that if he was the firft Benefaftor,
he hath fince receiv'd a fufficient Requital
; or, that
he gave without any hope or profpeft of Return
;
and defired, that his Bounty fhould reach not to
the Perfon only, but to the Family of his Friend
;
or, that what he did was undertaken upon the
Principle of Glory, or of prefent Advantage
; that,
in cafe we had not found his Afliflance, we did not
want Opportunity of being reliev'd in our Difirefs
ty other Means ; that it cannot certainly be de-
termin'd how much his Aid contributed to our ac-
quiring thofe Goods which he demands to inhe-
rit : And then again, that he, who hath been only
ufcful to us in getting a thing, cannot prefently
require, that we fhould admit him to hold the
thing in common with us. Farther, That the
good Offices of Friends would be turn'd into a
mercenary Service, or rather into perfeft Ufury, if
they were to be advanced to the Eftate of inte-
fiates, before tiie Relations of the deceas'd : For
then a Kindnefs to another could not be fuppos'd
to be conferr'd with any other Defign, than that
43'>
the Receiver
fliould only for a little time be the
Steward and Keeper of what was beftow'd, or
fliouldreflore it with large
Increafe at his Death.
Tlicrefore, when there is no exprefs Difpofal extant
in Favour of the Friend, the Right of the Kinfmen
fliall obtain : Yet fo as that, together with the
Goods of the deceafed,
they Ihall likewife take up-
on themfelves his Obligation
towards
this great
Benefaftor
;
and fliall endeavour, as far as in them
lies, to repay it in a mofl grateful manner, acknow-
ledging by whofe Affiftance they arrive at fo ample
an Inheritance. Nor is it rcafonable for any Man
obftinutely to urge againft this
Judgment tiiat Say-
ing ot Arijhth
'
; We ought rather to requite a Be-
nefaElory than to oblige a Friend,
if both cannot be
done together
: Or that of Cicero
=',
There is no Duty
morenecejfary, than that
of repaying
Kindueffiis. And
again
;
Tliere being two Kinds
of
Liberality, one
of
beftowing, the other
of
returning a Benefit ; whether or
no we will
befiow, depends on our own Choice
; but not
to return the Favours
of
a good Man, is abfolutely un-
lawful, provided it may be done without injuring any
other Pevfon : Or that of Phccion 3
(in Plutarch's
Apophthegms) who being feveral times called up-
on to give fomewhat towards the Expence of a
Sacrifice, whilft all the reft contributed that were
about him, anfwer'd, It would i?e aSbaitie to giveyou,
before I pay this
honefi Man
; pointing to a Creditor
of his that ftood by. Add. lib. xxxix. t. 5. leg. i?..
D. de Donation. Becaufe indeed, the Budnels of
Succeffions to inteftates by no means can be, or
ought to be exaftly fquar'd in all refpefts accord-
ing to the Rules obferv'd in conferring and in re-
turning Benefits. For the latter are guided by the
Virtues of Humanity and Bounty, and, properly
fpeaking, are vouchfafed to thofe only, who had
no ground to exped them from us, but what is
owing to the Suggeftions of thefe Virtues in our
Mind. Whereas the former are built on other
Foundations, on the Obligation we lie under of
making Provifion for fome particular Perfons, on
nearnefs of Blood, and on that Propenfion to ad-
vance, improve, and prefcrve our own Family, en-
join'd by the Diftate of Nature. Ifaus Orat. 6. +.
All Perfoni, as they approach near their End, are pro-
vident in difpnfiiig
of
what tl:ey
poffefs, left they jhould
bring their Family to Ruin and Deflation. And in
this Affair, that which ought to be our principal
Care is. That we eftablifli fo clear a Method, as
(hall be expos'd, as little as po.Tible, to Contro-
verfy and Doubt. Now, there can be no fuch Way
or Method more ready than this. That in default
of an exprefs Difpofal by Will, the Inheritance
(liall pafs down according to the different degrees
in which the Relations of the deceafed ftood nearer
to him one than the other.
Hence Authors have remark'd. That Succeffions
to inteftates proceed in a contrary courfe ro the
Rule of common Kindnefs
; it being in the form^f
the more neceflary Duty to give, in the latter to
repay : As, in the Cafe before us, our Children
have the Preference of our Parents, to whom we
are much more indebted and engaged. Ludan Ab-
Mr. Barb. NOTES on
. xv, xvi.
^ Hejiotts Words are, MijSt x(7ivv>)tu Tcrsv Toi6?j6a< iTarpow. See alfo Mr. 5<if))'s Treatife of Friendihip, p. 155.
Ariftotle'% Words are, 'Eufpyfri) avraxoSoTjou xi-fiv [iSlKKov, v^ Iriipia Sotiqv lav afi(pory IJ.ii
tvSi^s^Tai.
* Cictro't Words are, Nullum
officium referenda gratia magii neceffarium
eft.
Alfo, Cum liberalitatis genera
fir.t,
unnm iasdi
bemficu, aheruh'^'e.ldendi, dentin necne in
noftra poteflate
eft,
mn reddere bono viro non licet, modo id facere
fojfttfint injuria.
^ Vhocionh Words are,
Puderet me vobis dare, ^ huic, (Savsi^^v
dcmonftrnm)
iton reddere.
*
Jf'Sfi'^
Greek is, nsvrt; 0; TiAVT(i( (*/IAovtj Tpo'voiav xni'SvTai ff^ujv utv, stbs f*5
l?pi)f*fc'yy< tb$ }(fftifvg ^vTv o,xa(-
K k k 2
dicat.
436
Of
Succejfions
to Perfons Book
IV.
dicat. 'Tis the Ordinance and Appointment
of
Nature,
that the AfeEiion of
Parents tovsards their Children
flyuld
exceed that
of
Children tc^uards their Parents.
Comp.
Bcecler. ad Grot. d. 1. Yet in what hath been
heie
oft'ei-'d, we would not be underlie od to infi-
nuate, as it" the Duty of Gratitude were to be al-
low'd no Place in the laft Difpol'al ot our For-
tunes ; but only that 'twould be inconvenient to
go about to fettle a general Method for the Eflates
of iuteftntes to be guided by, taken barely trom the
prefum'd Will of the Party deceafed, touching the
Exercife of this Virtue.
XVII. From what hath been laid down, it ap-
pears, that of all the collateral Line the Brothers
Hand neareft to the Inheritance ;
as well on the ac-
count of the molt fweet and hearty Atfcction by
which they commonly are engag'd to us, as be-
caufe they, on the fcore of railing their Brother's
Fortunes, recciv'd fmaller Portions out of their
Father's Eftatc. Qiiimil.
'
Declam. 321.
pag.
J09.
init. Edit. Lt^gd. But. What Friendfiip
can be
fu
hap-
py
as that which imitates brotherly AjfeBion ? Certain-
ly, when we would complement thofe
whom we take fur
cur Friends, Flattery itfelf
cannot inv.ht a higher En-
deannent than the Name
of
Brothers. With whom
the Sifters are likewife to be admitted, at leaft to
thofe Goods which were either brought by the
Mother, or lately acquir'd ; but they have not the
fame Title to the Father's PoficiTIons, which are
ufually defign'd to preferve the Splendor of the Fa-
mily ; whereas Women, for the mofl: part, marry
out of their own Line. Brothers by the Father's
fide, in the paternal Inheritance, exclude thofe by
the Mother's fide ; as again, in the Fortunes left
by the Mother, the latter have the Preference of
the former. In Goods newly gotten fince the time
my Father married the Mother of my Half Bro-
ther, 'tis convenient that 1 (hould carry cff the
largeft Share ; fincc toward the acquiring thcfe
Goods the Man ufually contributes more than the
Woman. Upon Default of Brothers, the Brother's
Sons fliall come in ; the' it fliould feem that thcfe
ought at the fame time to let in the Great-Uncles,
becaufe they too had fmaller Fortunes, on account
of
dividmg the Eftate with the Father of the de-
ceafcd. 'I'he fame is to be faid of Sifter's Sons,
and their Great-Uncles by the Mother, with re-
gard to the Mother's Goods. And this Order and
Method fhail be continued down in all other In-
fiances ; but fiill with this Provifo, That where
the paternal Line fails, there the Mother's Kindred
fliall be admitted to the Father's Eftate, and fo the
Kinfmen by the Father, to the Mother's Goods,
upon failure of her own Line.
XVIII. But we ought well to obferve, That the
Rules which we have propos'd for the determining
this Matter are ftiled natural, not becaufe they are
fo exactly prefcrib'd by any Piecept of the Law uf
Nature, as that they cannot be alter'd
; but be-
caufe they are in the highcft Manner agreeable to
the Law ot N.iture, and feem to be the moft ready
Means of cutting ctf^ all Difpuce, in caftS where
either the exprcls V\'ill ot the deceafed, or the na-
tional Laws are lilent. Yet indeed in the whole
Subject and Compals of the civj! Oidinancts, there
is karce any tning about which they are found
more careful and lolicitous, than about the Difpo-
fal of In:;eritances, not only for the Pieventiqn ot
Quarrels amongft Relations, but liLtwife becaufe
'tis the Interelt of the PubJick to have this Bufi-
ucfs fettled, and moderated according to the Ends
and Reafons of particular Governments. Hence
in fome Places the Pov, ir of making Wills is left
very free and wide
; in others it is more or lefs a-
bridg'd and reftrain'd. Amongft the Romans 'twas
one of ihe Laws of the Twelve Tables
'
, That
whatever a Majier
of a Familyjt ttled or bequeath'd with
regard to his Family, or to his Fortunes,
fiould fu fland.
Which was borrow'd from the Syflem of Attic Laws
compoled by Solon : For thus Piutarch
*
reports.
That tAe Ordinances
of
his, by which he gave free Stib-
jefls the liberty
of
making IVills, which they never en-
joy d before, was moji greedily embrac d, and was e
fhem'd moft juft
and right. Now the Reafon which
moved Solon to the palFing this Aft, was not that
he intended to defraud the neareft Relations of
their Right ot Kindred, but that by fetting before
Mens Eyes this common Advantage, he might en-
gage them all to contend with each other in good
Offices, and tiiat Relations might keep the greater
Affcftion and the ftriatcrTies amongft themfelves,
confidering that they muft exceed Strangers in
Kindnefs and Good -will, if they dcfired to be ad-
mitted before them to the V/calth of the Family.
Demojlhen. adverf. Leptitrj>.
374.
Edit.Genev. JVhen
Solon tnacJed by Law, Tliat tvery Man who wanted
legitimate IJfue, Jhould appoint
for
lit Heir ivhvm he
pleai'd : he did not rub the next
of B.'ood or Affinity
of
their Right
of
Kindred, but that by propojing this
common Advantage, he might engage Men to contend
with ea.h other in good
Offices
-
. Befides, it feems
more fuitable to Liberty, and to the full Extent of
Properties, That no one Jhould be forced to leave his
Goods, but to thofe only wimn he loved more than others.
To which we may add. That we often conceive more
probable Hopes, that a Stranger
to our Blood may bet-
ter imploy our
Poff^ffions
in the Service and
A
ff
fiance
of
Vntue, than fome near Kinfman, whom the Expe-
ilation of
a rich Inhe, itance frequently f
educetb to
Luy.ury and I.Uenefs
"
. And laftly. That 'tis fome
Comfoit, under the Neceffity of
a mortal Condition,
if
a
Alan m.ty confign over what he hath got by his oxvn LOr-
bour, to thife whom he looks upon as his deareji Fiends
b-
This Exception only there was in Solot/s ; That
thife flmtld not be permitted to make tViUs, who had
legitimate Mule Children liiing, to whom tie paternal
'
'Thcocrit.
Idyl. xvi.
59,
The Living zuajle the Tartunes
of the De'>d.
'
Ijlcrat. Mgir.it.
Mr. Barb. NO't ES on
. xvii, xvin.
'
i^//><.7r7;'.'s Words arc, ^xpoteft amicitia
ejfe tamenfelix, qua mitetur fraternUattm? Cirte qi.3ttins blanJiri vi'untus his
qui pffi'amici
videntur, nulla aiiilr.tio procedere ultra hoc nomen poteff, quart ut fratres 'joctmiii. Re.-.d Cyrut's Speech to his Chjldren
in XcaophonCyroperd. Lib. viii. Val.Maximus, 1. v. c. 5. zxA Stobctui, Serm. 82.
'
See this Law quoted, lib. i. c. 6. ^-6. n. 6. aforegoing. See aJIb two DifccurfeS of Mr. ThomaRiis'% about the Original of
Wills, and the Formalities ufed in making them, l^c. intituled, the one, Prima l^ initial fuccejpcnis tejlamn.taria a;ul Romr.tlss ;
the other, De ferSu legis Dt'cemviralis teflnmenlaria ; both printed at Hill ia
1705.
*
Plutarch's Words are, 'O H, u
(Ja'ACTai tij txirpivj/t?,
</ /u^ Ta7Sf tun airip, Jolvfl* ri a-.TcC (pi?i,'m T ffuyyim'aj ir'lJ.>t"
/*2a
*
Dfmojlhenei's Greek is, 'O /xiv SoAiiv tSijics o(xev, i\ii\iai Siji/ai ta. JauToC ^Ta av T(; /SoJAerai, lav /x>) TaiSt; Jri -,-v)5;<ei. i% I* if)'
hheritanci
Chap.
XI. voho die
inteflate.
437
Inheritance -was beyond afit:cntroverfy due. It cannot allovv'd.
And therefore if T^/c/wj had defign'd to
be
denied, but that under this ample Power of dif- obfcrvc, Tim only vjritten pyUls uere t/jifc -Mth xiUcb
poiing of Goods by Tejiament, tliere crept in, as the Germans -weie
unacqiuunted ; lie would have ex-
well at Jthens as at Rome, a prodigious Spawn of prefs'd himfelf more particularly and diiliniSly.
Cheats, like a peftilential Infection ; fuch as para- Befides, That the Rights of Kindred were ho-
fitical Flattery and Inveigling, efpecially of old_ ndur'd with the highcft Reverence and mofifacred
and childifh Perfons, Circumventions, Forgery of Veneration amonglf thofe People,
appears from
Writings, and the like. what the fame HiUorian afterward
remarks. The
Bodinus
^
chiefly objeds againff thefe teflamen- gi eater number
of
Relations ar.y Man hath, whether
h
tary Cor.ftitutions of Solon, 'j'hat they al/oiued Men Bloid or by Marriage, the niuie
ReJpeEl is paid him in
to bequeath by IVili Real as ii:ell as Perfonul E(laies. his Old Age : Nur are ahy Rewards allaxu'd to comfort
By
which means, as he obferves, whilff many of Perfons under the Mafortune tj being
childhfs. kvsry
thofe Eifates might happen to fall on one Perfon,
there arofe a vaft Inequality of Wealth between
the Subjffts, whence the Poor grew envious to-
wards the Rich
; the Rich proud and infolent to-
wards the Poor; Mifchicfs that have a peculiar
Tendency to the difturbing and fubverting of Go-
vernment : Efpecially lince the Proverb is often
made good. That the 7nore a Man hath, the more he
Jhall haxe. But Bodinus obfetves. That 'tis the Li-
tereft of
States, 'n-here the fupreme Pouer is lodg'd in
the People, to take care that fome few Perfons do not
exceed the
refl
by too
vaft
a Difproportion. Which like-
wife was the Reafon of that JewiJI) Law
"*,
for-
bidding the perpetual Alienation of Land ; and of
that other, by which Women who had receiv'd
Land in Inheritance, were enjoin'd to marry into
their own Tribe, left otherwife the Land fliould
pais from one Tribe to another'^.
Ariftotle
~^
i
araongft his Rules for preferving a
democratical Government, gives this as one. That
Inheritances jloiild defend not by Teflament, but by
Kindred, and that no Perfon jhaU have more than one
Inheiitance, becaufe thus the Fortunes
of
Men ivil} be
kept more upon a Level. What Mifchiefs were intro-
one Inoks on it as his ncceffary Obligation, to undertake
the Quarrels
of
his Father or
of
any near Kiiifmau,
as weU as their Friendjhips and Alliances. In many
parts of Germany at this Day, if a Man iiath a Son
born to iiim, 'tis an ufual E.xprcffion to lay, He
hath git an //t ir.
Again, It doth not appear why a Nation, ftxh
aS the old Germans then were, quite ignorant of
the ways of heaping up Wealth, content with the
poor accommodation of houfliold Conveniences,
and fcarcely dehring any fartlier Advantage frcm
their Fields, their Cattle, and their Pains in htinc-
ing, than a daily Subhftcnce
; why fuch a Nation
fliould have any Reafon to defire the privilege of
Ttflaments. It being an idle and unneceffary Care,
for thofe who follow this way of Life, to covet to
ihcmfelves any large Extent of Land. Nor is the
making of a Will fo neceflary a confi-quence of
Property, but that a State or People may introduce
fome one uniform Method of Inheritance, without
any fuch exprefs Difpofal. And this will efpeci-
ally hold good of that People, who, as Tacitm in-
forms us, affigned fuch a Tra[i
of
Land to fuch a
number
of
People ; u7;j afterwards panelt'd it out into
duced into the Spartan Commonwealth by thaC private /hares, according to the IVorth and
Efletm of
Liberty of Teftaments, which Epitades tht Ephorus particular Pofns. If it be fa id. That thtfe Men
fet up inoppofuion to Z.;a^!<j's Lawf, may be read were wont, however, at their Deceafe, to leave
at large in Plutarch's Life of Agis
*.
Amongft o- fome fort of Orders and Injiidions to their Fami-
ther Nations Men were allow'd no Liberty in this ly, we deny that every ALi of this kind comes up
Point
; or if they had any fuch Privilege, it was to the nature of a Tjlawent
^
.
very much abndg'd, and reifrain'd.
'
This method of Succeffion, as 'tis the mod plain
Of the Hebrew Laws in this Particular, Selden
'
and fimple, and mod agreeable to the common In-
and Grotius
'
give a full Account. Of the antienc
Germans Tacitus ^
reports. That they had no fuch
things as JViUs or Teflaments, but every Man's Chil-
dren were his Heirs and Succejfurs ; and, in default of
Children,
th.fe of the next Degree, as Brothers and Un-
cles by bi:th Patents. Which Place of the
^
Hifto-
rian, why we fhould interpret with fome in this
manner, that the Germans, who had not yet learnc
the Ufe of Letters, did not make ufe of formal and
written Wills after the R.man Cuftom, which Ta-
citus for the mod part hath an Eye to in that De-
fcription, we cannot yet find fufficient Reafon.
For amongft tfe Romans themfelves Teflaments by
ciinations of Nature, fo hath it an efpeciii Ten-
dency to the keeping up an equal Proportion ia
the VVealth of the Subjects, to the fccuring a Supply
of Natives in a jufl; and proper Number, and to
the prclerving the Eftates and the perpetuity of Fa-
milies ' .
1: hath hkewife been the common Opinion, that
this muff prove a new Bond of Alfefticn betweeh
Relations, and engage them more heartily to pro-
mote each other's Good, whilft they confidtt'd,
that they were of necefTity to fucceed each otlier
in their Pofl'eJTions. To this Point belongs trc Paf-
fage of Plato, lib. xi, De Legibus, quoted by Gro-
Word of Mouth ^
, and without Writing, were alfo tins, and explained by Bxcler. Alfo that Pliny in
" Lib. V. c. 2. De Republ.
>
Levit. xxv. lo. Upon which fee Mr. Lc Clerc''s Comments.
>=
See K'lmi- xxxvi. 8.
*
Add Arijlot. Polit. xi.
9.
Be Succejfionibus ad bona Hcbr^roriun, erpecialjy in c. 24.
'
Add Kumb. xxvii. 8, &c.
f
Cap. 20.
*
The Arabian Impolior hath likewife publifh'd Lau's lo regulate SucceiCons, in his A'uoran under the Chapter
of Wives. '
See Bdcofi'i Hen. VII.
p. 127.
Mr. B.iRE. NOTES on . xv'ii.
'
Arilintle'i Words are, Kai t2? xAiipovofx'a? fii^ -ncnu. So'jiu it\,a.i, a/^i xaxa yivnc,, ii.v^X TXiiivKj
%
ixi3.(i
tlv ifTov xJitpovc/ieV bt
yap au cfiaAcirtpai ai aVi'ai tliv. xa) riv aiopioy 1? Svicftav &v naS/'c^juvTo TAe.Bt, Ari'ljt. 1. v. c. Q.
infn-
See .>!io, 1. it. c. 9. p. 329-
Dc Tcft(-.mentis Summer. Imptrnnt. S:c. c. 1 . .9.
becaufe the Tclb.tor 7.',-?AV/\i/rt/ ,i>/fr^/-W;5 /?*/ rfi-
Luntatcm
fuam, i. e. he named his Heir or his Will. By the iJ,w.z/Laws they 'were .is good .u written Wills, provided thit the
Tcftator declared his Will by word of Mouth in the prefeucc of feven Witnefles, Iitjiit. 1. iL :. 10. . 14.
his
438
Of
Succejfions
to
Perfons, &c.
BooitlV.
his Pane'gyr. c.
37.
fo highly commends, that the
twentieth part was releafed to the Heirs of Fami-
h'es, Quod manifeftum erat, qiimto cum dulore latum,
difiringi
aliquod, &lc. becaufe 'tis plain, that Men
would bear it with great Grief, or rather never en-
dure ir, to have any defalked and taken from thofe
Goods which they by Blood and Relation merited,
and which they looked upon as their own, and to
defcend to the next akin, as their Inheritance.
And Puhliiis S)rus
'^
faith, H^redein fcire utilius eft,
qttivn qnarere, i. e. It is better to know than fcek
an Heir, ver. 255. And yet thofe Governments
feem to have fettled the Matter with mofl Pru-
dence, which left Men the Privilege of difpofing
by Will thofe Goods only which they acquired by
their proper Induftry, ordaining, That whatever
they received fro7n their Parens or Anceflors, fhoiddfafs
dozvn again to their nearefl Relations. For by this
Method all the Reafons produc'don both fides of
the prefent Qiieftion are moft happily brought to
a Temperament and Union.
It is altogether flrange to the Manners and Cu-
floms of us Europeans, what we are told of the
People of the Kingdom of Siam, 'that thcfe who are
Men
of
Siibftance amongfl them, are commonly oblig d
to parcel out their IVealth into three Divifions,
one of
which goes to the King, another to the PrieR {whence
likewife th.' funeral Charges are defray'd)
and the third
only to the Children. And no lefs ftrange is the Pra-
ftice of the Ethiopians on the Coafts of Guinea
;
where the G^^ods of either Parent do not defcend
to their Children, but to the neareft of their otlicr
Kindred.
XIX. The Heir by W:!/, and the Heir at Law,
though they fucceed in a dift'erent manner to their
refpeftive Eftates, yet have this Obligation
com-
mon to them both, That theyjh:dl difharge the Debts
of the
deceased.
And that not fo much on account
of any tacit Engagement which they have
entrcd
into to this piirpofe
^
, as becaufe thefe Debts are
a neceflary Burthen sffefting the Polleffions in the
manner of a tacit Mortgage. For, as QiiinSiilian
obferves '
, Such is the Nature and Condition
of
In-
heritance, that the Creditors mufi firfl be fatisjied be-
fore it can fffeHuaUy take place. And fo much only
is to be reckoned
a Man's Eftate, as remains when
all are paid their own
^-
Whence, likewife, 'tis
mofl highly agreeable to natural Equity, that the
Heir be not charged with Debts above the Value
of the Inheritance. Nor fhould we omit what
Gabriel the Sionite tells us in his Book of tie Man-
ners of the Eaftern Nations, That the Mufluimanni,
when they make their lajt Will, are bound to refiore a!!
that they have taken by Rbbery or Violence, to the pro-
per Owner, from whim they receive a formal Dif-
charge in Meriting : And
if
they know not the Perfon
to whom Reftituticn fl:ould be made, they lay cut the
Sum in publick Buildings, as Hjpitals, Mnfques, or
Bagnio's, or elfe bequeath it to the Poor, or to fome re-
ligious Order.
In Ferdinand Pinto, Cap. 21. tlie Chinefe Hermit
advifeth Antony de Fana, who had been guilty of
Sacrilege, to do thefe three things for his Soul's
Health ; to refiore what he had taken av.-ay, to beg
pardon for his Offences with Tears, and to diilri-
bute largely m Charity to the Poor. Add. Cap. 60.
^
On which Reifon depends that difpofal of the old Roman Law, which we meet with in 1. xxix. t. 2, 1. S. Dig- De acquir.
vcl omitt- bared.
Mr. B.1RB. NOTES on
. xviii, xix.
"S
Gn//<rr in his late Edition of ?ai/;w/ 5yrw reprinted in 1 708, reads thefe Words diverfely thus, Baredem
fern honefliui ejf,
qiiiim quarerc. It is more pniJent to refoKc to leave th.u Perlbn for an Heir, whom the Laws appoint for our Succeifor, than to
ieek for another to whom to give our Goods, which is a different Senfe from the other reading.
'
^ineliliaii\ Words are. Nam patrimonii in alium tranfituri ea ratio tjl, ut primum credito fatisfiat. The fame Author h.^d
before laid. Bona forro qua funt ? ui opinor, ea qua detraiiis alienis depreherifa fiint.
*
So the Law teaches. Id eiiim bonorum cuyufque inttlligitut, quod ari alieno
fuperefl,
Digeft. 1. xlix. t.
1
4. Dejure
fifci,
leg. 11.
Sec 1. iii. t. 6. De calumniatoribus, leg.
5.
inprincip. Lib. xi. t.
7. De religiojis ij furnp:. fur.erum, leg 14. . i. Lib. xvi. t.
3.
Dtpofiti vd contra, leg. 7. i. Lex Wijigothorum, 1. vii. t. z. c.
19.
4^
'W^
CHAP.
Chap.
XII.
Of
Ufucapion,
&c.
CHAP. XIL
Of
Ufucapion or Prefcription.
439
I. Hjw Ufucapion and Prefcription differ.
II. lV.:at Ufucapion is by the Roman Laws, and
v:here it takes place
III. How
far honefl Dtaling is required in Ufuca-
pion.
IV.
Continual Pojf.jjion is required.
V. T^/je Reajons
of
introducing Ufucapion.
\l. Whether the Law
for Ufucapion be penal.
IT
belongs to our prefent Defign to enquire like-
wife concerning that Method of Acquilition, by
which he who hath gotten PolTeffion of what was
really anorher's ', by a juft Title, and with honeft
Intentions, and hath al(o held it for a confiderable
time without being diflurb'd or oppofed, obtains
the full Propriety of the thing thus poilsfs'd, fo as
to extinguifh all the Rights and iegal Claim of the
former Owner. This the Roman Law terms Ufuca-
pio, becaufe the thing is, as it were, taken and ac-
quired by long Ufe or
Piffffion.
The Word Prafcriptio in the Senfe of the fame
Law imports ftriftly
^
that Plea, Demur or Ex-
ception, by which the Perfon thus in Polfeffion in-
validates the Claim of the lirft Proprietor. Though
>
Dige/. 1. xli. t. 3. 1. 3. D. De Vfucap. leg.
3.
VII. Many refer Ufucapion to civil Right.
VIII. Whether UJucapion can arife
from a tacit De-
reliElion
of
the Proprietor.
IX It ferns to depend upon the tacit Agre;ment
of
Nations,
X. How
Ufucapion may be prejudicial to ChUd en net
yet born.
SI. Ujiicafion is alfo in ufe among divers Nuticns.
thefe different Names are frequently taken for the
very fame Notion : and the latter nozv prevails in
common
Ufe, and is the Term by which we render the
fovmsr.
It may be worth our while to premife, what the
Roman Law appointed or directed in this matter
j
becaule we (lull hence e.t(ily gather how far the
Bufinefs depends on politive Conftitutions, and
how far on the Laws of Nature.
II. Prtfyiption, as Modeftinus
^ '
defines it, is the
Addition
of
a Property, by means
cf
long
Piffeffion
continued t<i the Term
of
Tears
fixed
by the Law. Cu-
jacius and others, on the Authority of U/pian, ufe
the Word adeptio inftead of adjeSiw, Acquifition in-
flead of Addition; but we do not apprehend that
Mr. Bare. NoTES on Chap. X. . i, ii.
'
This is a very confidemble fort of Acquifition. See n. 1. upon . i. of chap. x. It hath alfo a place among feveral People
in the manner, which fhall hereafter be expl.iined. The Author in his Abridgement of the Duties of Man and Citizen,
1. i. c. 1 2. . 1
4. fpeaks of two other kinds of Civil Acquifuions. The firft is that which is gained by the Sovereign, or the Laws,
which deprive a Criminal of all, or at leaft part of his Goods, and confiicates them or gives them to the Perfon damaged, which
is treated of at large, 1. viii. c.
3.
The other is obtained by Arms, or Right of War. But fee what is faid of this, c. 6. . 14. above.
^
The word Vnefcripthm will bell exprefs the Latin
Uficapio in our Language, and therefore K'e ihall treat of it under that Name,
Bnlefs fome fpecial Reafon oblige us to ulc the Word Ujucapion.
'
Bcfides, Prefcription has not only_ refpefl: to Property, but it deflroys other Rights and Anions, when Men are not careful
to maintain them, and preferve the ufe of them during the time limited by tha Law. Thus a Creditor, who has not demanded
his Debt during that time, difcharges the Debtor And he that has enjoy'd the Rent of certain Lands fo long, can't be difpofleffed,
though he has no other Title but his long PolfelTion. See Mr. Daumat upon this Subjefl in his Civil Laws in their Natural Order,
Part. IL 1. iii. t. 7.
Seft.
4.
and Mr. Titius's Obfervations oxiLnuterbach, Obf
1033. A% alio, in \\h Jus Privatum Rom.ino-German.
1. ii. c. g. We (liall hereafter explain, how far Prefcription is of n.itural Right, and what Civil adds to it. As to what we have
to fay about the Prefcription of things Incorporeal and their Rights, we are to obferve, that by Natural Right alone Prefcription
does not abolilh Debts ; (o that tho' neither the Creditor, nor his Heirs have demanded any thing for a long time, his Right is not
cxtinguifhed, nor is the Debtor fully difcharged. This Mr.
nomafim proves in his Difcourfe, De PerpetuAtate debitorum pscuniario-
rum,_ printed at Hall in
1
706.
"
Time,
fays he, in it felf is of no force, either to get or lofe one's Right ; it muft be accompanied
" with fomething elfe, which muft give it that Power. For no Man can be deprived againft his Will of that Right he has got by
" the confent of another, but by his own free Releafe. He does not diiengage himfelf by afting contrary to his Engagements ; and
" in delaying to e.vecute them, he lays no new Obligations upon him to indemnify the Perfon interefted; fo that the Engagements of a
" bad Paymaftcr become greater and ftronger every day, and can't be judg'd by Natural Right alone to change their Nature, and
" come to nothing at a certain Period of Time. It is aliedged in vain, that it is the Interefl: of all Mankind, that Proceedings in Law
" fhould not be eternal
: For 'tis no lefs the common Interelt of Man, that every one (hould keep his Word, and that bad Paymallers
Ihould not enrich themfelves without contradidion at the Expence of the Lender ; that
J
uftice be done, and every one obtain his
" own Right. Moreover, 'tis not the Lender that troubles Mankind in requiring what is due to him, but the Debtor who owes, and
" vvill not pay. For if he paid his Dues, there would be no ground for an Aftion. Nor is that Pretence better grounded, that
" 'ti.s the Negligence of the Creditor in not demanding hi^Debt, that is the Caufe of his lofing his PJght, and authorizes his Pre-
" fcription. This can only have place among fuch as live one with another in the independent State of Nature. Suppofe the Creditor
" be very negligent, can his innocent Negligence deferve more to be puniih'd than the noxious Malice of the Debtor ? Or ought he not
" rather to be punilhed for his Injuftice .? Did he defer the Payment fo long a time without any ill defign, yet is he not as much to
" be blamed for his Negligence } Does not the Obligation of keeping Word oblige the Debtor to feck for his Creditor, rather than
" the Creditor for the Debtor > Why then, if fo much Prejudice muft come by Negligence, why Ihould it fall rather upon the Cre-
" ditor than the Debtor ? Or rather ought not tlie Negligence of this iaft to be puniihed ; and fo much the more, becaufe this gets by
" Prek-ription, and the other lofes? Bat if we confiJer things abftradlly from the Civil Laws, which require that a Debt fliall bede-
" manded within a certain Space of time, the Creditor can't reafonably be aceufed of Negligence, becaufe he forbears the Debtor;
" fmce when he lent the Money, a time was fixed when it was to be paid. And every Man is free to allow more time than he has
" promifed, and 'tis fufhcient for the Debtor, that the time is com.e, v.-hefi he agreed to pay. Befides, the Creditor may have many
" commendable Reaibns for his Action, viz- Prudence, Neceffity, and Charity ; for which hedeierves rather to be praited, than ac-
" cufed of Negligence, as Mr. Thomajiu! proves particul.uly. Laftly, There is no oeufc to believe that the Lender has renounced
" hi.3 Debt, as a matter fubjcfl to Prc'fcription ; fmce the Debtor being not obliged to pay a thing in kind, but tlie value of what he
" borrowed, he does not properly poffefs the Goods of another; and fo can't be thought to keep it as his own. On the contrary,
" he muft be efteem'd to be always in poffelTion of his Right, 'till he has renounced it exprefly, and confirmed it under his Hand."
After this, Mr. T/JoOT,?/?/// explains how a Debt may be loft by Time for want of Proofs, andfliews, that without that, Prefcription
can have no place by the Laws of ail People yet known to us, nor by thofe of the Romans as far as the Emperor Conftantinus'i
Time. This whole Difcourfe is %vcrth our reading.
this
440
Of
Ufucapion
B OOK
this makes the leaft
ditference in the thing. For
he,
tliat having got PolVeffion of a thing with ho-
nell
Intention,
continues his PoiVeffion to that de-
terminate Period which the Law expreiVcth, may
be fa id to have fomewhat
added to him,
which he
hitherto wanted. And
again, he, to whom the
Law tlius adds any new
Property, may be faid to
have
acquired or obtained it.
To
proceed ;
as every Man, who is otherwife
capable of acquiring
Dominion, is hkewife capa-
ble of prefcribing ; ib by this
Right
of
Prefcnptim
, we may acquire
Dominion over both forts ot things,
moveable and
immoveable,
unlefs they are particu-
larly excepted by the
Laws.
And Firft,
Freemen are thus excepted
"
:
For
fince
Liberty is fo fweet a Comfort, as no one can
be prefum'd
to have neglefted any
Opportunity
ot
recovering,
'cis juftly fuppos'd that the Parry in
this Cafe continued fo long under Servitude, and
did not put in his Claim to be releas'd, only out
cf Ignorance of his prefent
Condition, not that by
this Continuance he tacitly confented to be a Slave.
So that this long Patience under his Mistortune
ought rather to make him a more worthy
Objea:
of Pity,
than to be interpreted to his Difadvantage.
Things confecrated
or fet apart for the Service of
Religion are likewife excepted ;
and fo too arc the
Goods of Minors, during their Non-age: For by
reafon of their unexperienc'd
Years the negleft of
challenging
what is their own cannot be fo far
charg'd upon them, as that they ought on this ac-
count to lofe it ; and it would be too hard and fe-
vere, if they were to fuftcr for the
carekfnefs ot their
Guardians.'
Further, the Law excepts ft olen Goods,
runagate Servants, and things gotten by 3 Violence,
tho' fome third Perfon hath obtain'd the PolVefTion
of them by
honeil Means.
Thus the Laws of the Twelve Tables ordain.
Ret fuvtivx aterna authoritas
efio,
Let the Claim u-
gainfi
Things fiolen
hold good everhftmgly. For, as
to the Robber himfelf, Ins Crime iiinders him from
prefcribing. And the third Perfon, the honefl
Poffeflbr, is likewife ftopp'd in his Right,
by
that Fault which is fuppos'd to atfcft and attend
the thing arifing from the unjuft Means by which
it was before acquired : For though,
properly
fpeaking, there is no Fault or Bleniifh
in the
thing confidered by itfelf, yet inafmuch as it was
taken from the foimer Owner in an unjuft and
villainous manner, it feem'd equitable to
enaft.
That his Right fhould not hereby ceafe or be ex-
tintl ; and at the fame time to take effectual
Care,
that no one fliould be a Gainer by his Wickednefs.
For fince three Years Prefcription is fufficient for
moveable things, it had been eafy for Thieves fo
to fccure their Booty, by carrying it off", and put-
ting it into other Hands, as rhat the lawful Own-
er iOiould not be able in a feaich of three Years to
difcover it,
Belides, amongft the Reafons on which
the
Rgl.'t
of
Prefcriptiun is founded, one is the Negli-
gence of the Owner, in fteking after them.
But
now, fince ftolen Goods are ufuaily concealed with
the ftrifteft Caution and Cunning, tiiis Reafon
cannot take place againft the Perfons who loft
them. Yet notwithftanding all this, fince it was
by fome fubfequent Laws eiiafted. That all Ani-
ons, after a conftant Silence of thirty or forty
Years
''
,
fliould litterly drop, and be extind:, the
Prefcription likewife of ftolen Goods, as well as o-
ther Preferiptiuns, (hall be valid, at Civil Law, af-
ter fo long a Period ^ , and fhall overthrow the
Claim of the former Proprietor : Which, how un-
reafonable foever it may appear to fome, who look
upon it as very abfurd that Irjury and Impunity
ftiould, by length of time, turn into a Foundation
for Equity and Right
;
yet it deferves Excufe on
Account cf the general Advantage arifing from
it to the Publick. Becaufe it highly concerns the
publick Peace, that Suits and Quarrels fhould at
length be finally quafii'd, and not fufter'd to run on
for ever, and that the Propriety of things fhould
not hang perpetually in Uncertainty and under
Difpute
''
. And becaufe within tiie Compafs of
Mr. Barb. NOTES en .
ii.
|
^
In general, all th.u is not concerned in Commerce. Our Author h-is forgotten in his enumeration of things not fubieft to
Prefcription, as publick Places, Goods that belong to the Publick, what is due to the Treafury, and the Prince's Dcmefnes, which
are all mention'd in thefe Laws. SeJ aliquando etiamfi maxbne quii bona
fide
rem pojfedent, non tatnen illi ufucapio alio tempore pro-
cedit, veluti
fi
qui! likrum hominem, velrcmfacram, vel religioftim, vel ferviim fugitivum poffideat,
Inllit. 1. ii. t. 6. De ufucapio-
nihui ^ longi tempnris prajmptionibus, . i. Furtiv>e qiioque res, fff qua vi pojfejfaJunt, nee
fi
pradiBo hvgo tempore bona
fide psf-
fijj'a:
fuerint, ufiuapi pojfunt,
ibid. . z. Res
fifci noftri ufucapi non
poteft,
ibid,
i
9.
Ufueapionem recipiunt maxime res corporate!.
26. De ujucapione pro emptors,
and
j.xcept
-
,
De amuili except. leg. i.
f
2. Things which a Teftator has forbid to alienate. See Cai/. 1. vii. t.
&c. leg. 2. An Eftatc in Dower, Dig. 1 xxiii. t. 5. De fundo dotali, leg. 4.
16. and fuch like things.
3
iluod fiihreptum erit, ejus ret aterna autoritas
efio,
as the Athenian Law fpeaks, mention'd by Aulas Geilius, 1. xvii. c.
taken out of the Twelve Tables, where we may fee that Authoritas fignifies a Right
of
Property, or a Right of claiming Goods
a^ain. Sit Cod. 1. vii. t. z6. De ujucapione pro empto, leg.
7.
, ,
.
"
*
Shi!eer%o antea non mota
fitnt
aeliones, triginta annorum jugifitlentio, ex quo jure comfetere caperunt invendi tiltenus nonhabeant
facuhatem.
Cod. 1. vii. t.
39.
De prafcriptitne 30. & 40. annorum, leg. 3. as allb the following Title, De annali except. &c. leg. I.
and C///c/'j's Obfervations, 1. x. c. 12.
l
j-
t-
/-
j 1
*
Prafcriptio longijfimi temporis, fo called to diftinguilh it from pra-fcriptio /ongi temporis, the ordmary Term, Cod. 1. vii. t. 22,
,5, 34, 35.
and which was regulated by the Mcafurc mentioned, ^. 4. n. 6, 7.
following. The Emperor
Jufihitan
being over-
pcrfuadcd bv the Clerg)- of Emefa or Emifa, a City of Swia, who by reafon of fome feigned Titles contrived to plunder lome of
the richcft Families of the Citv, made a Law, That the Goods of the Church, City, Hoipit.ils, and ctlicr Places iet apart for reh-
gious and charit.iblc Ufes, fiiould not prcfcribe under the Space of an hundred Years, Cod. 1. i. t. 2. De S.u-rofanais Ecclefiis,
leg. 23.
But the Fraud being difcovered, and this new Law caufing a great number of Ailions, Juftinian
himlelf corredcd it, and reduced
the Privileges to the Term of forty Years, at leaft in the Eallern Churclies, Nov. 9. n i .
See Ciijaciiis'% Obfcrvations, 1. v. c.
5.
and a good'Difcourfe of Mr. Wherlhof,
Profcfl'or at Uclmfladt, intituled, Vindida Grotiani Dogmatis de puefiriptione inter liberas
gentes, . 30.
Yet we muft not confound
Prefcription of an hundred Years with Time immemorial, though they often come much
to the fame. SzeGrot. 1. ii. c. 4. .7.
and the Difcojrfe above quoted, printed in 1696, ^ 18, isc In fine, it was Theodofiius
the younger, and not Theodofius
the great, that eftabli.li'd the Prefcription of thirty and forty Years. See the fame Difcourfe, . 29.
Md Mr. -fhoma/ii/s, DePerpet.'iitate Debitor. Pecun. ^.zj.
, . ^ , ,
, i
*
'Tis upon this Reafon, as well as upon the Negligence of the Proprietor to claim his Goods agam, that the Rv/naa
Lawyers
have founded the Right of Prefcription, Bono publico tijucapio introduSia
eft,
ne Jdlicet quarundarum rerum diu i:f fere femper
incerta
domivia ejent. cum fufficcrct domino ad inqiiirendas res fuas fiatuti
temporis ffatium.
Dig. 1. xli. t.
3.
leg. i.
thirrv
Chap.
XIL
and
Prescription,
441
thirty
Years
Mankind feem to put on a new Face, pag.
194. Edit. Pauf. A Man d,th not become juji
It
was
thought
very inconvenient that the following Pojjcfjr
of
a thing bardy by taking it to
himfelf, but
Age
flioiild
be dilliirb'd upon every flight occalion. by hMing it inmcently.
Hence
when the Lands
Ecfides,
when a Man had been without luch a which tbrnierly
belong'd to King
Apion, were left
part
of his Goods for tiiircy Years together, he was to the Rman People," and every
Man lliz'd on
juftly
fuppos'd to have fat down quietly under the wnat part he liked beft : Tadtus
calls this way o
Lois;
fo that there was no need of troubling fo Proceeding, Dintinaltcentia, A lung
continued
Licen-
iong
a
Pcili-lTioii on his account. The fame Rea- tiaufnefi and InjujUce.
According to the civil Law
fon
will hold for that ^
Prefciftion which is iome- 'tis enough if a Man had this
bonafiJes 3 , this Up-
times
allow'd in criminal Cafes; it feeming unne- rightncfs and Integrity of Thougiu
at his
firil en-
ceiiary
to bring to the Bar Offences committed al- tring on the Pollcffion, though he happen
after-
moft an Ago fince, the ill Eftcds of which Time wards to difcover, that the Perfon who
convey'd
itklf
hatn fufficiently purged and effaced; fo that it to him was not the juil Proprietor.
But the
the .ri.e end of Puniihment is fuperfeded. Canon Law requires the fame
Integrity
through
III.
But that Prefcription may effedually pro- the whole Term of Years on which the Prefcripti-
ceed,
'us icquifite that the Party, receiving the on is built *
; fo that it' a Man comes in the
thii g
at the H:inus of a falfe Proprietor, do ob- mean time to know, that the tiling was made o-
tainthis
PolkiTioii by a juft Title ', or upon fuch ver to him by one w.io had no Right to difpofe
grounds as arc efleem'd fufEcient in other Caks ot it, he begins immediately to be oblioed to re-
tor tne transferring and tiie acquiring of Property
:
(lore it to the lawhil Owner, and from thence-
And
conkquently tiat he ads in this Matter bona forward detains it mala
fide, foully and dinio;:efi-
fide,
\ ith kiir and honeff Intention
;
that is, that ly
;
efpecially in cafe he go about to hide it from
he be able to alkdge a fufficient Reafon why he the Owner's Knowledge by Craft and Drfit^n,
tiuis poiieffeth i
,
and be perfuaded in his Mind, Which Judgment feems to approach neared to die
that the Pipeity was transferr'd really on him, and Strictnefs and Sanftity of the Law of Nature
^
-.
himfelf conllituted true Owner
=^
.
Liban. Declam. i. Inafmuch as, upon the introducing of diftinit Pro-
Mr. Barb. NOTES on
. 11, in.
''
^erclafiilfi temforalibus prtefcriftionibus non excliiditufy
nifi
viginti antiorum exceptione,
ficut ctctera fere crimina. Cod, 1. 1'x.
t. 22. jIJ legem Cornel. Defalfis, leg. 1 2. See 1. i. c. g.
f
6. above, and vviiat A-Ir. Titius lays, Obferziat. on Lnuterhach.
Obfervat.
1 1 24. As alio Mr. Tbomajiui'i Difcourfe, inlitled, De Priefcriptione Bigamia, which is the eighth among thole at
Leipfick.
'
Ut qui bona file ab eo qui Domijius non erat, cum crederet earn Dovihum ejfe, rem cmerit, vel ex donatione aliave quavis
iufta caufa
acceperit, is ujucnperet, Inllit. 1. ii. c. 6. princip. Di.itina fuccejjio tantitm jure fuccejjionis,
finejuflo titulo obtenta,
frodejje ad
preifcriptioi'emhacfilaraiionejwnpoteft. Cod. 1. vii. t.
33. De prafcript. longi temp. &c. leg. 4. Nullo jujlo tituk prtseedente
'lof-
fidentes, ratio juris quarerere Dominium frobibet. Idcirco cum etiam ujucapio cejfet, intentio Domtnii nunquam abfumitur. Lib. iii.
t. 32. De rei vindic. leg. 24.
*
L!ba.>!/uj's Gree'-i h, Ou yip Iv t AajStlv '^i t3 Sixa.'aij KT>5aff9j!<j aAAa;
tm^^P^S ^yxAlf^^TUv "xeiv-
^
Ut in his omnibus cajibus ab initio eam bona
fide
capiat ^od i^ in rebus mobilibus objervandum
eJfe cenjmus, ut in omnibus
jtijlo titulo poffejftonis antceejforis juftn detentio, quam in re habuit, non interrumpatur ex pefteriore
forfitan alienis rei j'cientia, licet ex
tttuk I'lrutivo ea ccepla
cfi.
Cod. lib. vii. t. i. De ufucapione transformanda, ij fublata differentia rerum mancipi,
U nee mancipi,
&c. leg I.
+
VnJeoportet, ut quiprafiribit, in nulla temporis parte rei habeat confiienliam alieme. Decretal. 1. ii. t. 26. De frafeript. Can. 20.
See alio Can 5.
' Mr. Thomafius maintains. That by natural Right an honeft Intention is not neceflary to make a Prcfcription even in the be^-in-
ning of Poffeffion, provided fo long a time is run out, that it may reafonabiy be prefumed, that the true Proprietor has relinquilhed
his Pofleffion of his Goods.
" For,
fays he, in whatever manner we get into the Pofleifion of the Goods that belong to another,
"
from the moment that he to whom they belong, knowing that they are in our Hands, and being able, if he pleafes, to claim theni,
"
declares either exprefly or tacitly, that he will let them rell there, we become the law.*"ul Owners of them as much as if we had a.
"
jurt Title to them originially. Theodofius tin punger, who eftablifli'd the Prefcription of thirty Years, did not require any good
'
intention in the Pofleffor ; 'twas
Juftinian, who at the perfuafion of his Counfellors added that Condition in certain Cafes, and
*'
the Canon Law afterward improving, the civil required a perpetual good Intention in all forts of Prefcription. The Clergy of the
"
Roman Church by this means found out a way to recover fooner or later all the ecclefiaftical Revenues that h.ad been alienated, altho'
" the Polfeifors had peaceably enjoyed them by an immemorial Cultom. Ambitious Princes alfo made their Advantage of this Hyno-
" thefis to ufurp the Lands which they pretended to recover to their Eftates, under this Excufe, that the Lands of the Crown could
" not be alienated ; and fo thofe, who enjoy'd thofe Goods which had been alienated, pofTefTed themfelves of them by a bad Defign
;
" fince they ought to know, that in fuch Cafes no good Purchafes can be made. Hence it appears, that the Maxim of the Canon
" Law, whatever fliew of Piety it m.iy feem to carry, is built on a Foundation contrary to natural Right, fince it creates many
" difturbances among Men, whofe Quiet requhes that there (liould be an end of all Adions and Differences, and at the end of a cer-
" tain time PoflefFors by fair dealing fliould be fecure againft all Claims.
"
Thcfe are Mr. Tbomafiui\ Notions, which I have collerted
from divers parts of his Works. See his Difcourfe concerning the Perpetuity of pecuniary Debts, . 3. in Not. lit. K. & . z-'. 32.
As alfo his Infiit. Jurifprud. Divin. 1. ii. c. to. . 193, 195,
201. with the Ckap. Fundamentn Jur. Nat. is Gent, which anfwers it,
V
14, ^c. As for my felf,_ I own, that if the true M.iiler of a thing bought, or ufurped and gotten from him, in a word, by foul
Dealing, doth not put in his claim, nor declare any Defire of recovering it for a long Space of time, though he knows very vi'cU in
whofe Hands it is, and there is nothing to hinder him from obtaining his Right ; in this Cafe, I fay, the unjuH Pofieflbr becomes
the lawful Proprietor, provided that he hath fome way or other declared that he was ready to reftore it, if it had been demanded :
For then the antient Owner acquits him, and manifellly renounces, tho' tacitly, all his Pretenfions to it. And thus our Author de-
termines it in his Element. Jurifprud. Univerf p. 76, 77.
But if he that takes Pofleifion honelfly of the Goods of another comes
to difcover his Error before the time of Prefcription is expired, he is obliged to do the Duty of an honcll PoJTeflbr. See what is .faid
in the next Chapter. But if, continuing always in his hontft Intention, he come to the time of Prefcription, whether it agree with
the Maxims of the natural Law only, or the civil Laws have reduced it to fomething lels, the Right of the antient Owner is entirely
extinft, as I fliall hereafter fliew. The whole amounts to this. That as the honeil Poilefibr who prefcribes is the Occafion, the' in-
nocent, that the other is debarred of all his Pretences, he ought to aiM him as far as he can to revenge the Wrong done by a third
Peflbn, who i'old him the Goods which he knew were not his own, and fo was the caule of this Prefcription. In fine, tho' a good
Intention is alway neceflary to keep the Confcience quiet, yet this is no Impediment but that human Lav.-s may overlook this Con-
dition either wholly or in part, to avoid great numbers of Atiions. And to obtain this End, it may be very fit not to require a good
intention in Preicriptions, to which they have fixed fo long a time, or to demand it at leaft in the Beginning of the Polfel'fion
; and fo
the M.ixim of the Civil Law in my Judgment is better grounded than that of the Canon Law. The Artifice of the Clergy confills
not lo much in this, that the Determinations of the Popes require a perpetual good intention in him that prelcribes, as in this, that
they will have the Goods of the Church look'd upon as not capable of being alienated, cither abfolutcly, or under fuch Conditions
as will make all Prcfcriptions void. As for what Mr. Thomafius fpeaks of Princes, who afiirm that the Dcmeafhes of the Crown can-
not be alienated juflly, and that Preicription has no place among fuch who have no dependence one upon another in a Hate of Nature,
fee the lall P.iragraph of this Chapter, and Lib. viii. c. 1;.
f.
9. L 1 1 perties
442.
Of
Ufucapion
Book
IV.
pe ties,
all Men were fuppofed to enter into an
Obligation,
That they -would, to the
m?mfl of
their
p. ive'-f- let every
PerJon
erjoy his oim again, -when they
fiiiuld
happen to be in P<J}e[fion of
it luithout his Confent.
But the
Compilers of the Civil Law were con-
tented with fecuring the outward
Innocence of
Mens A6:icns ; and authoriz'd the PoflelTor qui-
etly to enjoy what he had honelily gotten
;
leav-
ing to the refpe6tive
Owners the whole Care of
feelung afcer their Goods, and of challenging them
upon a timely Difcovery.
IV. Another neceflary
Condition, in order to
Prefcription is, That it be fou.Jtd
on conflam PoJfeJ-
fon,
fuch as hath not been
interrupted either natu-
rally
'
,
as if
the thing
hath returned in the mean
while to the former
Oxvntr, or hath at any time lain
abandon d or furfake
n : Or civilly
"
,
as
if
the Owner
hath
been aBually engaged at Law -with the Pojfijfor
fvr
the B-ecovery of
v:hat he
loft ;
or, at leaft, by
fo-
kmn Proteflations
h.ith put in a Sah'o to his Right.
Boeder and Ziegler, in their Annotations on Gro-
tius %
obferve farther on this Siibjed:, That the
Space oj Time, during ivhich the prime Poffejfor
holds
the thing
of
which roe fpeak,
{hail be reckon'd to the
Etnefit of
him that fucceeds
5 in the Pc/feJJion ;
pro-
vided that bah the former and the latter
firfl
entred
upon it with hoiieft Minds, and upon a
jufl
Title :
For
ctherwife the prime PiJJi/or Jhall mt b= alhwd to make
ever his Time to the next Holder ;
and ccnfquently if
the former came to the Pujjejjln by difioneft
Means, the
Time he pnf'd in it JJiall not be computed towards the
Prefription of
the latter, tho' he, for
his own part, ob-
tain d the Pijfeffion
fairly and
juflly.
And this Rule takes place as well in a general
SuccclVor, an Heir, as a particular, a
Buyer, a
Grantee,
&c. But then here is the Difference be-
tween theie two kinds of Succeflbrs ;
the laft of
'em, tho' he cannot reckon the time of the
diflioneft
Acquirer to lengthen out his own, yet in
cafe he
himfeif wasn; t privy to the wrongful Dealing, the
Fault of the faid Acquirer, if it cannot be ufed
for his Advantage, fliall not turn to his
Prejudice
;
bur he Huil be allow'd to complcat the
Term of
Prefcription in his own Perfon
*. Whereas
'tis o-
therwife in the cafe of a general Succeflbr,
or an
Htir
^
: For he cannot, by his own
Ignorance
^
Lib. ii. c. 4. . 9.
*
Vid. Inpt. ubi ftipra.
and honeft Intention, atone for the Fault of the
deceafed whom he reprefents, and whofe Rights
he takes in full upon himfelt.
A longer Space of Time is required for pre-
fcribing againft one that is abfcnt, than one
that
is prefent
^
.
So again, moveable things may pafs into
Pre-
fcription fooner than immoveable
''.
The reafon
of which latter Conftitution feems to be. That im-
moveables are judg'd a much greater Lofs than the
contrary ; that they are not fo frequently
made
the Subjeft of Commerce between Man and
Man
;
that 'tis r.ot fo eafy to acquire the PolTefTion
of
tiiem without knowing whether the Party that
conveys them be the true Proprietor, or the falfe
j
and confequently, that they are likely to admini-
fter much lefs Occafion to Contrcverfies and Suits.
Plato's Rules for the Prefcription of moveables are
as follow
J If
a thing
of
this kind be ufed openly in
the City, let it pafs
into Prefcription in one Tear ; if in
the Country, in
five
Years ; if
it be ufed p-rivately
in the City, the Prefription Jhall not be coynpleated in
lefs
than three Tears.
If
it be thus held with Privacy
and Security in the Country, the Perfon that
lift
it
Jlmll have ten Tears allow'd him to put in his Claim
^
.
As for the Prefcription of immoveables, this the
Coniiitution of Plato's Commonwealth was not
acquainted with.
V. The chief Reafons, which the Learned in
the Roman Law aflign for the firfl: introducing of
Property, are to this purpofe ;
That in order to the
avoiding
oJ Conjufion,
and the cutting
off
of Difputes
and Quarrels, it is
of
great Confequence to the publick
IVtlfare, that the Proprieties
of
things jliould be
fix'
A
and certain amongft
the Subjdls. VVhich would be
impoflible, fliould perpetual Indulgence be allow'd
to the Negligence of former Owners, and fliould
the new Pofltfl'ors be left in continual Fear of lo-
fing what they held.
Then again. Trade and Commerce could not
otherwife fublift in the World : For who would e-
ver contract with another ? Who would ever make
a Purchafe, if he could never be fecur'd in the
quiet Pofl'ciTion of any thing convey'd to him ?
Nor would it be a fufficient Remedy in this Cafe,
That if the thing fliould be thus challcng'd by a
<:
DeLL. 1. xii. p. 990, 991.
Edit. JFefb.
Mr. Barb.
NOTES en
.
iv.
'
See the Digep, I xli. t. 3. De ufurpat. (5f ufucapion. leg. ;
& i 5-
Thus we lofe a thing, or are depriv'd of it
'ufa
in judi
fellat.
conteft.
feffione, leg. 10.
r > 1 ii
t^
5
Plane Inbuuntur accejjiones poffeftonum
his, qui in locum aliorum fuccedunt, five ex contraau, five
voluntate ;
h^redibui emmiS
bis, qui juucjf^rum loco bnbentur, datur acceffio teftatoris. Dig. 1. xliv. t. 3.
De diverfis temporalibus praeicript. &
de acceffiombus
poireff. leg. 14. .1. Frxterea nevitioja quidem poffcftoni
ulla poteft
accedere, fed necvitiofaei qua vttiofa non
eft,
I. xb. t.
3.
Ue
acquir. vel .iinitt. pofleff. leg. 13.
> n- r
V
Si quis loci vacantis pufejfunem
propter abfertiam aut ncgligentiam Domini, out quia
fine
fuccejfore decefent, fine
vi nancifiatur,^
quamvi! ipfe mala
fide
pofiideat (quia intelligit
fe
alienum funium occiipaffe] tamen
fi
alii bona
fide
accipicnti tramderU, poterii ei
lonira poffeffione
res acquiri, Inftit. 1. ii. t. 6. . 7. Diutina pojfcjfio
qua prodeffe cceperat defunfso, i^ haredi
&
bonorum pojpfori con-
tinuatur, licit ipfe fiiat
pradium alienum
effe.
^od
fi
ilk initium juftum
non habuit, haredi, ^
bonorum
poffeffon,
licet ignoranti,
poffefto
non prodeft,
ibid. 1 2. Cum hares in jus omne defiinaifuccedit,
ignorationefua defunai vitta non excludit ufucapere mn
:)/-r;^ ?(</ l/cA'7Avf3/o.^v^^
Dig. xliv. t. 3. Dediverl". temp, prxlcript.yi-. leg. II.
, , , t,.
The honell PoflefTor prelcribes in ten Years againft a Peribn prel'cnt, but not under t^venty \ ears againft one .aWent, altho fte
that keeps the thing be pofl'efTcd of it unjuftly, Cod. 1. vii. t.
33. De prafcript. hngi temforis decern vcl viginti annorum, leg. ix. &
Novel. 7ff/?/- 119- c. 7.
Sec the next Note.
j
j v :ft ,
6
Prefcription for moveables is gained in three Years, whereas for immoveable 'tis not gained under ten Years againlt a
Perfon prcient, and twenty againft a Perfon abfent. AV Domini maturius fuis rebus defraudentur cautum
eft,
ut res quidem
mobiles per tricmiium, immobiles vero per hngi lemporis pojfeftionem
(i. e. inter prafentcs decennio, inter ahfentes viginti annis) ufu-
(apiantur, Inftit. 1. ii. t. 6. prmc. By fuch as are prefent, is meant fuch as are m the fame Country, See Ccd. 1.
vu. t.
33.
Ui
prafcript. longi temp. &c.
third
Dt
Chap.
XIL and
Prefcription.
443
third Party, the Perfon from whom we receive it
fliould be obliged to make it good
'
j for after fo
long a
coiirfe of Time thoufands of Accidents
niight
render him incapable of giving us this Sa-
tiiiaftion.
And what grievous Commotions muft
Ihake
the Commonwealth, if at fo vaft a diftance
of
Years, fo many Contrafts were to be difannul-
led
-
, fo many Sacce/Iions to be declared void, and
fo many Poflcflbrs to be ejefted ? It was therefore
judg'd fufticienc to allow fuch a Space, as large as
in Reafon could be delired, during which the law-
ful
Proprietors might recover their own. But if
thro' Sloth and Negleft they fuffer'd it to dip
3
;
the PrMor might fairly rejeft their too late Impor-
tunity. And tho' it might fo happen, that now
and then a particular
^
Pcrfon loft his Advantage
of recovering his Goods utterly againll his Will,
and
without his Fault, only becaufc, he was una-
ble to find out the Poifeflbr
j
yet the Damage and
Inconvenience ariling from that general Statute to
fome few private Men, is compcnfated by the Be-
nefit it affords to the Publick. But we ought well
to obferve, That before we can charge the antient
Proprietor with Carelefnefs and Sloth, we mnft fup-
pofe. That he had a convenient Seafon to exert
his Diligence.
Hence it is highly agreeable to Reafon and
Equity, That the time during which a Country
hath been the Seat of War, fhall not avail towards
Prefcription : As Honoritu particularly decreed, Tl at
no one jhould reckon toivards the procuring
of Prefcripti-
on that Space
of
Time in which the Vandals /laid up-
on the Roman Grcund
*
.
VI. But there's no Neceffity, that, in order to
aflert the Jufiice of civi! Governments, in efta-
blifhing the Right of Prefcription, we fliould have
recourfe(with a certain Author ^) to that Power of
executing Punifliment on the guilty, with which
the chief Magiftrate is inverted. As if the Law
denied an ABion to thofe, who for fo long a time
forbore to challenge their own, for this Reafon on-
ly, becaufe the Parties deferve to be put into the
Lift of Criminals, for fuffering Prefcription to be
pleaded againft them ; whilft by thus neglecSing
their Property, they not only prejudice the com-
mon Good of the Society, but likewife fin againft
their own Nature, which hath in all Cafes an e-
fpecial Regard to the publick Advantage : And
that therefore as Solon ordain'd a Penalty againft
thofe who were idle and negligent, fo here the
Negleft of the
Proprietor
is punifli'd with the
Lofs ot his Property.
But indeed the principal
Aim and Defign of the
Lavy concerning P,t/m>i/o
\s not to puniflvMens
Defaults m this refpeft, but to provide,
that the
State be not difturb'd by
uncertain
Titles,
and
by Properties in conftant
Doubt and
Sufpence.
IMiough it's true, that by a Psrfon's being
denied
to fue tor Recovery, when he liath long
negledted
it, he fuffers fome Lofs or Damage
as a necelTary
Confcquence.
Befides, to be excluded from feme
Advantage,
lying open to thofe only who are vigilant
and in-
duftrious in their own Affairs, doth not come up
ftriaiy to the nature of a Punifhment. For we cer-
tainly ufe a Figure when we fay, That an idle Tem-
per is a fujficient Revenge to itfelf: Or, That 'tis Pu-
nijlment enough to the jluthful and imaclive, that being
Jhut out from all
Pofis of Honour, they are
confiraind
to pafi their Days in Ohfcurity.
Befides, the Afferrion is not true. That thofe iiho
fufler
their Goods to be nith- held from them by Pre-
fcription, are really Offenders
againft tie Common-
u'ealth. They indeed do manifeftly injure the Pub-
lick, who either abufe and fquander away their
Subftance, or whilft they fit brooding over it, and
are Proprietors only in Name, let it grow ufelefs
for want of Application. But now a thing that
is gain'd by Prefcription, is however under the
Care and Management of fome Perfon
; fo as ftill
to be ferviceable to the Occafions of the Commu-
nity. And 'tis altogether the fame thing to the
State, whether fuch a Piece of Ground, for In-
flrance, be in the Hands of this Man, or of that,
provided it doth not lie quite neglefted, without
any one to cultivate and improve it.
To thefe Reafons we may add farther. That
when any private Perfon receives Advantage from
anotlier's Puuifhment, 'tis neccffarily fuppcfed,
that he was before confiderably hurt or endama-
ged by the Party offending. Whereas he wlio
commenceth a Proprietor by the Right of Pre-
fcription, can on no Account be faid to have fuf-
fer'd Harm from the Neglecft of the Party, whom
he thus fucceeds. Nor doth he rightly apply to
the prefent Purpofe thofe Words of Book xvi.
t.
3.
D. Depoftti, &c. Male ineritus publice, &c.
"
He that hath deferv'd ill of the Publick by em-
"
bezzling what was deliver'd to him in Charge,
"
ought to be left to ftrugglc with Poverty, that
Prucop. Hift, Vand/il. 1. i. c.
3.
''
Hugo de Roy, de co quod jujlum
eft,
1. iii. t.
3, 4.
Mr. Barb. NOTES on
. v.
'
See Lib. v. c, <;. . 5. following, at tlie End.
* It was a judicious Refleflion made hy Jratus of Sicyon in T/z/Zy's Offices, 1. ii. c. 23. Et quinquaginta muiorum pcjfejfsonis mo-
veri non nimis rfquum putabat, propteria quod tarn longo fpatio multa hareditntibus, multa ernptionibu!, multa dotibus tenebiiiitur
fine
injuria. He did not tliink thit Pofleflions of fifty Years fliould be diilurbed, becaufe in fo long a time many tilings in Inlieritances,
Purcliafes, and Portions miglit be held witliout an Injury to any.
^ Tlie Rom/in Lawyers hold, That they who fufter their Goods to become fubjefl to Prefcription, may be thought to alienate
them.
Alienntionis verbum ujucapioiicm continet. Fix
eft
enirn ut non videatur alicnare, qui patitur ujucapi. Dig.
50. t. 16. Deverbor.
fignificnt. leg. 38. in princip.
* The Ignorance of the antient Owner hinders not the Prefcription. The Civil Law orders things fo, that he that lofeth the
PofTeffion of his Good,? may claim ihcm again, if he can dileover in whofc Hands they are ; but it doth not fuppofe it a thing abfo-
Jutcly neceffiry that he lliould aftually difcover them. The Proof of that Condition, fays the Emperor Juftinian,
would run us into
new Perplexities.
Vt bono initio
pojfejfionem tetjentis, & utriufque partis domicilio
requifito,
fit
cxpeditn quaftio
pro rebus ubicnnque
pofitis, NULLA SciENTiA vel IcNORANTiA EXPECTANDA, ne altera dubitationis inextrieabilis oriatur oceafio. Cod.
]. vii. t.
33. De pr^fcript. longi temporis. Sec. leg. 12. It is fuihcient then in general to prefume, tiiat he againft whom the Pof-
fclTor prefcribes lias a competent Knowledge ; and it was upon the account of this PreUimption, tliat the fame Emperor took himielf
obliged to prolong the time of Prefcription, which according to the Laws of the Twelve Tables was but one Year for Moveables,
and two for
Immoveables.
Sed cff
ft
quis res alienas, Italicas tamen, bona
fide
poftidebat per biennimm, miferi rerum Domini ex-
dudcbnntur,
fjf nullus eis rid cas refcrvabatur rcgrefi'us, qua feC neftientibus Dominis procedebaut, quo nihil inhumanius erat. Si
Homo ABSENS
is- NESCIENS TAM ANCUSTO TEMPORE SUIS CADEEAT PoSSESSlONlBUS, Ibid. t. 3 I . Di
ujucttp.
tramform. &c. leg. i.
L 1 1 2 he
444
"
he may ferve for an Example to deter others
"
from
VVickcdnefs.
Since then the Law concerning P.efcriptkn is not
a fend
Statute, 'tis idle to difpute, why the Negli-
gence of the Pnpietor fliould be rather punifh'd by
the Lofs of the neglected Goods, than by
Tome
pecuniary Mulct. Though it is very evident, that
fuch a Muia could not procure the true End of
the civil Conftitutions in this Affair, which was,
"
To cut otf all thofe Suits and
Quarrels that
"
would for ever have been fpringing up, and to
"
enfure, at leaft, a quiet Enjoyment to long Pof-
"
felfors, whofe Cafe entitles them to more than
"
ordinary Favour.
For in the firft Place the Matter muft have been
brought into Court by the Claim of the former
Proprietor, where the Caufe would have been the
more difficult
and perplex'd, by reafon of the things
continuing fo long in other Hands
;
and then the
prefent Polleflor was to be ejeded, whence a new
Hardlliip would arife. For if the Fine were to
go to the Magiftrate, then the PoflelTot's jr.ft Title
and honefl: Intentions were likely to (land him in
r,o ftead. Nor if the Pofleilbr himfelf were to re-
ceive the Fine for a Comfort and Recompence,
would all the Doubts be hereby refolv'd. Becaufe,
fliould the Fine be lefs in Value than what the
Pofldlor \oferh by quitting his Hold, he mull ftill
be, in part, a Sutferer : But were it as much, or
more, then the antient Claimant would get little
by his Suit. Therefore there cannot be, in the
Point before us, a more ready way to Peace and
Qiiietnefs, than to declare, that after the Term of
Years appointed for P>efcriptiori, the Right of the
former Owner fhall ceafe and be cxtindt.
VII. By what Law Prefcription was firft fet on
Foot, the learned are not well agreed : Moft a-
fcribe its Original to civil or po/itive Law, and op-
pofe it to thcfe Methods of Acquifition, which
are commonly faid to proceed hora the Law
of
Nations. Nay, Cujaciiis^ goes (o tar as to affirm,
"tkat Prefcription doth really cnutradicl the Law
of
Nations, in that it takes a Man's Property from
him,
uithotit Us Confem : That it interferes likewife "with
natural Equity, tho' only
for
the Sake
(f
pnttick Good
;
whiljl it endamageth private Owners, but turns to the
Benefit and Advantage
of
the Community. To which
De Roy anfwers, ^That each particular Proprietor, in
Of
Ufucapion
B OOK
IV.
45*3
may
likewife
gather the Abfiirdity of that Praftice Pounds to him -who
gave it you in Charge, or v:hether
in fome
Coiintries, by which the ftolen Goods, you
fiall fay
it into the
Tre'afiiry ?
If
-x^ regard only
when
difcover'd
^
,
are not reftor'd to the Owner, tie La-ixi
of Nature and
of N.itions
s
, the Momy is
but
are
claimed by the piibHck Treafury
*.
to be given back
"^
to iL-
P^ty ii-ho coimnitted it to your
V.
Inafmuch as this Engagement to reftore the Trufi
; if -we confukr the End
if civil Government,
Goods of
others arifeth fro.n a general Agreement and the Rule and Method
of pujitivc Laws,
you ought
amongft
all Mankind, a Bar is hereby put to all rather to throw n into the publick
StocL Fur he, who
particular
Contrafts made about a thing which is hath deferv'd ill
of
the whole State,
fiould be Lft
-to
any
way kept from the true Owner; the Eff;cf of ftrugglexmh Poverty tio
amongfl his other Inconvenien-
which
is, that when the thing is known to be an- ces, that his Example may deter others
fom offending.
other's,
any Bargain about the conveying it to a But, indeed, fince fovcreign
Rulers have even by
ihird
Party
becomes null and void '.
And this the Law of Nations a Power to piinifli Ciiminals
too is the groinid of Diogenes's Jeft on two Thieves, in their Fortunes and Eftates
; when fuch a Penal-
one of which had pkinder'd the other; One, he faid, ty is jiiftly agreed agaiiift a Malefaftor, 'tis agree-
had ftolen
fmewhat,
but the other had Ivjl nothing^, able to the very Law of Nature, that all his
As to that Law of the D/gefi
'
,
produced by Goods fhould be forfeited to the Government:
Ziegler \
to prove that a Contrad made after fuch Yet that the Confifcation of Goods fhculd attend
a
Difcovery
is not always evacuated or hindered any one particular Crime rather than others, is
by the Force of Property, it is really no prejudice purely owing to the Appointment of pofirive Con-
to what we now aflert : For in the Cafe there al- Ititutions. The confideration of that Benefit which
Icdg'd the
Lnercft
of the Creditor is more con- accrues to the Publick from Penalties duiy infli^ed
cern'd that the Pledge (hould remain fafe, than (:he Reafon urged by Tryphonimis) did indeed
the Intereft of the Debtor who owns it; and the ftew that fuch a penal Sanction ought to be ap-
Dcbtor cannot
challenge the Pledge, unlefs upon proved of; but it was not properly the C;.ufe,
Payment
**
.
v/hy the
>'
Treafury fliould have the advantage of
The Judgment of 'f>7/>/joi7/?;j, in the fame place the Criminal, as to challenging the Sum which he
of
the Digejl, upon the other Cafe which he there had lodg'd in other Hands. For by the Sentence
piopofeth, doth not to me appear fatisfadory, of the C urt all the Right and Property of the
A
M.rn caft for
a capital Crime, fays he, hath depo-
condemn'd Criminal over his Goods wa"; taken
fited
an hundred Pounds in your Hands
;
the Man is from him, and conferr'd on the Government
; and
afterwards
traijported, and his Goods confijcated
;
the confequently what he formerly gave in Truft is to
Qutftion
is. Whether you jhall
reftore the hundred
be dehver'd back, not to him, but to tl-e publick
^
Vid. Jxt- Mr.ttka:, De cr'tmin. tit. Defurtis, c. 4.
f.
4.
Diog. Laert. 1. vi. f.
54.
Add. Gret. d. 1. Sed. i.
i
See a full Inlbnce in B. xvi. t. 3. I. 31. f. i. D- Depojiti vel mitra.
Mr, Barb. NO TES on
. iv, v.
maiiing Satisfaftion isj and the Difficulty of knowing tlic true Oivners of the Merchandizes, which the Sea csfls up, proves only,
that they ought to be adjudged to the firft Comer, without e.xaminiug if there be Reafon to demand them ; .-.nd if the Owner can't
be found, they belong to the L rd of the Country as firll Occupant : In a Word, the Cuftom, of which we are fpeaking, can't
be jullify'd, but by fuppofing that Property is loft with aftual Poli'effion ; an Hypothefts, which I have fufiiciently confuted above.
Chap. vi.
i
I. Note i.
*
See I. iii. c. i . .11. Note 3.
foregoing.
'
This is only when there is no honeil Intention. But when the Contraft is performed already, before we are affured that the
thing belongs to another, we neither can, nor ought to break the B.irgain. And the antient Proprietor hath nothing to do to
demand his Goods of him, who is not in Poffcffion of them, and had a full Right to difpofe of them, as I liave lliewed above,
. 3. Note I.
*
The Words are. Item Pompmiu!, \.x-xxiv. /ml/it, pnrvi referre rei noflras, an alienas intulerimu!,
fi
tatnen r.ofira interfi; (al-
'jas cjfe.
Etcidm r.Ms magi^, quam quorum funt, dcbent fohi, isf iJeo
fi
pignori tiierces ncccpero
[p!/ pecuniam K.iuticam'] mihi m^igis,
quam debitori, nautn tenebitur,
fi
ante eas fufcepit, Digeft. Lib. iv. tit. 9. Nnut/c, Ctitipoi:es, Str.bulari':, ic. 1. i. ^.7.
^
Incurrit hie y alia infpeBio, an bonam
fidem
inter eos tantum, inter quoi ccntradum dt, nulla extrinfscus ndfumpto, lejiimare
deleitmus, an rejpeBu etiam aliarum Verfonarum, ad quas id, quod gcritur, pertinet ; exempli loco, latro fpolia, qua mihi ahflulit, po-
fuit apud Seium injcium de mditia depojientis, utrum Lxtroni an mihi rejiituere Scius debeat ? Si per
J'e
dantcm, accipientemq'te intue-
mur, h/tc
eft
bona fides,
ut cianmiJJ'am rem accipiat is, qui dedit,
fi
totius ret aquitatem, qua ex omnibus perfcnis, qua negoti)
ifto
tontingnntur, impletur, mihi reddenda funt, quoi (for fo we mull read v.-ith Gf/>/j) faElo fceleftifftno adcmpta fun!, if probo banc
(ffe
juftititiam, qua fuum
cuique ita tribuit, ut non diftrahatur ab uUius pcrfona juftiere repctttione, Digell. 1. xvi. Depcfiti vel
contra. Leg. 31- l- See 1. iii. c. 6. 11. at the End aforegoing.
+
Reus capitalis Judicii depofuit apud ie centum libras, is deportatus ell, bona ejus publicata fur.t ; utrumne
ipfi h/sc reddenda, an
in publicum deferenda funt ?
fi
tantiim Naturale Jus (sf Gentium intuemur, fi, qui dedit, reftituenda funt \.
fi
Civile Jus, iff Le-
gum ordiuem, magis in publicum deferenda funt. Nam male meritus publics, ut exempla aliis ad deterrcnda
maleficia f,t,
etimr. ege-
ftiUe
Inborare debet. Ibid, princip.
*
See Mr. Noodt^s Probnbilia Juris, 1. iii. c. 2. As to the thing itfelf, there ought, as I think, fome Diilindion to be made ;
if we fpe.ik of a truly wicked Perfon, who is guilty of enormous Crimes, and who appears to be hardened in Sin, 'tv/ill be a
means to make him go on in his evil Courfes to reilore what he has intrufted us with. But if the Criminal be condemned for
things which are not evil, but only as they are forbidden by the Laws ; or if Ibme violent PafTion, Temptation or Habit, aifili-
ed by hi; Temper, has hurryed him into the Commitfion of an Aftion heinous in its Nature ; we may not only, but we ought,
in my Judgment, to reftore our Truft faithfully to the unhappy Perfon. And in this he doth nothing contrary to the Duty of a
good Citizen. For the End and Defign of the Laws, which punifh with a general Confifcation of Goods, requires that all that
appears, or can be difcovered, fliould be confifcated ; but it doth not require that every one fhould go and declare what he has Jr.
his Hands, belonging to the Criminal. This were to enlarge the Severity of the Law, whereas it ought to be mitigated as far as
poffible ; and if it e.xprefly commands, that none fhall conceal any thing that is his, it ought to be interpreted in fuch a manner, as
to imply, that he fhall be guiltlefs if he undergo the Punifhmcnt to be infii(Sed on fuch as have the Courage to run the Hazard of
ferving an unhappy Perfon. The Tyes of Relation and Friendihip, which it is the Intereit of t.he publick to favour and cheriih,
make this Interpretation reafonable, fmcc it is common to trull a thing with a ReLition cr Friend ; and if he find, that by putting
the thing intruiied to him into the Treafury deprives Children or other innocent Perlons of a thing that ought to delcend to thcni,
how great a Criminal foever the Offender may be whofe Goods are confrfcatcd, and how horrid ibever the Ct;mcs which have bro'.igiiC
this Punilhment on him, there is no human Law can be io undcrftood as to oblige iiini in Conlcicnce to difcovcr the Secrets, or bctr.ry
the Intereft of them who ought to inherit the thing intrufted to us, and havcdone nothing to defcrve to be difappointed cf it.
Receivers.
4^4
Of
the Obligations v)hich arife Book
IV.
Receivers.
Bseaiife all kind of Property, whether
it
arifecli from politive Ordinances, or from the
Law of Nations, hath this etild amoiigft others,
Tnat he, who is in pcfleiTion of any thing over
which the faid Property extends, fhall be bound to
reftore it to the Party who at prefenc a j^ pears to be
the true Owner
^
. What Demurs and Exceptions
the Law of reftoring things s,i\tn in charge admits
in other Cafes upon account of particular Circura-
ftances,
is hequently fhewn by Authors. Vid. Cic.
Oii. iii. c. 25.
Seneca De Bench 1. iv, c. 10. Ambr.
De Oft. 1- i. c. ult. To which may be added what
Pol)hmi (in excerpt. Peirefc.
p. 172.} reports of Ari-
aratkei King of Cappadccia, who haiing recover'd
the
Kingdom from Oiophtmes, demanded ot the
Prienians the forty Talents which Oyophernes had
put into their Hands ; and upon their refufing to
deliver them to him, fell upon their City with Fire
and
Sword, in Polylius's Opinion very unjuftly.
Too'
this Aftion of Ariaratbei mzy be commended,
if we firft fuppofe that OiOpheraes had injurioufly
depviv'd him of his Crown.
Upon this natural Obligation to Reflitution^ the
Compilers of the civil Law have built a great
number of additional Rules ^ And this too is the
Ground of claiming by judicial Procefs 7, what is
detain'd
from us, together with all the Aftions
which border on that Claim ; and in fome iort,
the
AElion of falfe Debt
^
; the AHion for Recove-
ry of what we have given ^, either upon fome
Reafon, which Reafon hath not been made good,
or elle upon no Reafon at all
'^
Though thefe
Allivns are faid likewife to depend upon a kind
of in.aginary Contract
".
For when we deliver a
thing
Without intending it for a matter of pure
Bounty, it is fiippos'd to be given by the one
Party, and receiv'd by the other on this Condi-
tion, That it fhall be delivered back, in cafe there
appear no Reafon why it was given.
What hath been faid about the Rcflhution of the
main Thing or Subflance, exicnds likewife to the
Fruits or Prohrsof it, fuch as are now remaining
;
fo much flill being deduSed as amounts to the
Chargesof producing, gathering, or preferving them.
VI. But if what we have honellly gotten, tho*
really belonging to another, hath been as honeftly
fpent, then it feems moft agreeable to natural Equi-
ty, that we fliould not pay the whole Value of it
to the Owner, but only the Advantage they brought
us, or fo much as we were made the richer by it
;
provided ftiU that the Owner hath not been re-
quited tor what he loft, fome other way. For if I
honeftly acquire and confume what was ftolen
from you, when you have already received full Sa-
tistattion from the Thief, you can then demand
nothing of me, how much foever I have been a
Gainer by my Bargain, The Ground and Rea-
fon of this Aflertion is not fo much to be taken
from the End of Property
^
(which was eftablifli'd
that every Man might, according to Proportion,
enjoy his own : whereas he, who gains by what
is mine, hath more than his Proportion, as I on
the contrary have lefs) as fro.m the following Con-
fideration ; That a thing m which I have not loft
my Property, either by my own free Confent, or
by Default, or by the Right of War, ftill belongs
to me ; as doth likewife all the Fruit and Produd
of it. When fuch a thing therefore hath fallen in-
to another Man's Hands, who hath made an Ad-
vantage by fpending it j his Honefly and good In-
tention fecure him indeed from all Guilt and Cen-
fure
;
yet he can on no Prerence with-hcld the
Profits, when I lay claim to them
'
, becaufe they
are to be look'd on as the Reliuue, or the furviv-
ing part of the thing, at leaft they are the proper
and neceflary Fruit proceeding from ir. Hence it
is one of the moft common and proverbial Say-
ings
^
, 'That iio Alan ought to gain by another's
Lofs
',
that is, by fuch a Lofs as he did not himfelf pro-
cure, either by his Confent or Default, fo as to
be the Caufe of the Damage, or to have it any
way imputed to him. For it can be no Sin in
me to take an Occafion of Advantage from tlic
Lofs or Damage of another 2 , when it was not
of
2
Vid. 1. xxv. t. 2. 1. 25. D. De till, rerum amotar.
^
\'A.Grot- 1. ii. c. 10. f. 2.
Mr. B.-vRB. A/OT'Ei' on
,
v, vi.
6
There are, adds our Author here, other Cafes, in \vhich the L.iw, which commands to reftore our Truft, admits of Ex-
ceptions ; as when a Mnii \vho hjs put hLs Sword into our keeping becomes delirious, and then comes to demand it ; or when he,
that h.ith put a Sum of Money into our Hands, raifes War againll the State.
''
Rfi I'trnHcath. See Dige/f. 1. vi. t. i. and what I have faid above, c. 9. .3. Note
4.
S
See ahove, 1. iii. c. 4. ^.5.
Note
4.
9
See Chap. ix. of this Book, . 4. Note
5.
' '
Conditio Jine Caufa is, when ^ve promife or give a thing for a C.iufe which is fupcrfcdcd, or upon a Condition which \vas never
performed ; as if one receives a Portion in order to a Marriage, which was never accomplil)icd, but v.as difannuUed.
"
In the Opinion of the R;man Lawyers there is no Obligation to another, which is not founded on tlie Confent of him, who
is bound bv it; when there appears no figns of a Conlcnt in certain things, wherein Men are neverthelefs obliged, th:y fuppofe
it, and call it a
^nfi
Contra^. But in all vhe Cafes that they alledge on this Occafion, and which refpecl the Management of
another's Bufinefs by Commiffion ; the tranfifting of publick Affairs in S.x'ieties ; the Adminiftration of a Guardianfhip ; the Addi-
tion or AccepMtion of an Inheritance, and the Payment of a thing not due. In all thefe Cafes the Obligation proceeds either
from a tacit Agreement, properly fo called, or from a pofitive Law, or from fome Maxims of moral Equity only, and there is no
need of feigning the formal Confent of a Perfon wholly ignorant of what paffes. See what I have faid above, 1. iii. c. 4. . z.
Note 3.
vcAInlitut. !. 3.
t. 28. Dc ohligatioifihus, qmz
qiinfi ex nntrallu nafctintur.
'
He may very well diipcnfc with it, fince, as I have fhevved above, . 3. Note i. all the time that he was the honeft Pofreflbr,
he a6\cd as Matter, and fo ^^'as really ; fo that the Profit he had from it was a Part or Rerenue which came from the Goods of ano-
ther, but was an Acquifition made by virtue of his Right of PoiTeffion, and it ought to remain his with fo much the greater Rea-
fon, bccaui'e 'tis almoll always one way or other the Fruit of his Indullry.
*
The Words of the Digejl are, Jan- Nat:ir^ aqiium eft, iteminem cum alterius detriinento dff injuria fitri locupletiorem.
^
D/mndcs, the Alhenian, condemned a Man of his City, who profcffed an Art of felling things neceffary for Funerals, un-
der pretence of taking too much Profit, and becaufe that Profit could not be compalTed but by the Dcuh of many Men. This
Judgment feems to have been ill given, becaufe he m.ade no Profit but by feme Man's Damage, ani by the fame Reafon all Gain
may be condemned. The Merchant can't manage his Bufincis but by corrupting of Youth, the Husbandman does his by the dcar-
ncfs of Corn, tho Builder by pulling down of Houfes, the Officers of Jullice by L.nv-Suits and Quarrels, the Grandeur and Call-
ing of the Clergy is (i:pportcd by Mens Deaths and Vices ; no Phyfician is much pleafed w^ith the Health even of his Friends, as
an antisnt Griek Comedian fpeaks ; nor a Soldier with the Peace of his Country, and fo of the reft. And which is worfs, if every
CH'.C
Chap.
XIII. immediately pom
Property.
4??
\^Iir. Secondlj',
Such a Pijfejfor through
Imefl
Miflake is hand
to
refiure, not only the thing it
fi-lf,
but likewife
fuch Euits or
Produtis
of
it as are
fiiil
remaining
j becaufe, in natural
E/limation, he that is
Owner
of
the thing, is Owner too
of
ihu F.uits
'^
. Ta
of my
own procuring
^.
It is obfervable, than
in the
Books ef the Roman Laws many Cafes are
dctermin'd
according to the Equity of this gene-
ral Rule *, with fome difference from the ordinary
Tenure and Scridnefs of the Letter. Vid. In/iit.
lib, iv. tit.
7.
Upon the fame Foundation the here they do di/liuguijij
befa:een the Ruits
of
the tbingt
AEiion which they term ^ de in rem verfj feems to and the Fruits
of
the Man's oxm Labour.
Grocius ;y
depend.
Vid. D. lib. xv. tit.
3.
of
Opmivn, that the former only ought to be given up,
VII.
Fiom the Rules already propofed may be and na the latter
; lecanfe thefe are not due to tl>e
drawn a fatisfadory Dccifion of many Points iifu- thing itftlf, tho' peJiaps they could mt have been procured
ally
controverted as well by Lawyers as Divines ;
luitlmtit it. Ociiers think, that e\en the latter
which we thii.k it may be proper to tranlcribe out
of
Grotius : Firft, He that hone
ft
ly and innocently
gains Pojjeffjon of
what is another's (^for of
him only
lue would here he all along mider/luod ; inafmuch as the
difioneji Pfjf'ff
>'
doth not only
ftand
ibliged on account
of
the thing
nf-lf,
but is farther obnoxious by his own
Crime) fo
lung as he continues in this Integrity^, is
bound to no Re/iitutitm, in cafe
the thing p.rijh or be
Ivft ; becaufe he neither e/'j^ys the Sub/lance, mr any
Fruit or Advantage of
it c.
We add, That he
doth not (land bound, though it (hould have hap-
pened to perifh by his Default: For his honcll
Intention was to him in the Pl.^ce of Property
'.
Now a Proprietor, tho' he lofe his Goods throus^h
his own Negleft
^
,
yet is thought to fuftain fufti-
cient Damage by the Lofs, and is liable to no
farther Punilhmenc : But we are to pronounce o-
therwife, if the Perfon in PoflefTion, iinderftand-
Fruits fhould be reftored, and allcdge a Law of the
Code
^
in favour of their Aflertion
'
. And indeed
this Judgment fcems to come ncareft to the Rule
of Kmdncis and Humanity
;
provided this Claufe
be fubjoined, Tiiat the honeif Poilellbr may in
this Cafe deduft, as well the Expence wiiich the
thing hath put liim to, as a due Reward for his
Labour
*
: As likewife that, to prevent trouble-
fome Suits, the Proprietor upon claiming his own
(hould not be too raking and greedy,
fhould rot
(as we fay)
fwe.p Duft
and all .
For after the Bu-
inefs hath been qualily'd by thtfe two Allevia-
tions, it will feldom happen that th? honeft Pof-
feflbr Hiall have much to give up out of the Ad-
vantage he made by his own Indufiry.
IX. Thirdly, Such a P^jfefjor is bund not only to
reflore the thing, but likewife to fnitfy for the Fruits
which he hath [pent ' , if
it appear that he would have
ing the tning to be another's, voluntarily made fpent as much i.ther-vjife : For he is judged to be
fo
awaj with it to avoid Rcjlitution. much the richer,
whilfl by Jpending another's Goods he
^
See Montaij^ne^^ EfT. 1. i. c. 20. Cicero, Off. iii. c. 5.
'77/
againft Nature to increafe our ozvn Advantage by the Damage
of
anothir M^in. Which is borrowed from that of Terence, Andr. A. 4. Seen, i
.
Hoccine ejl credibile aut memorabile,
Tanta vecordia iniiata ciii quam ut
fiet,
Ut mails gaudeat, atque ex incommodis
Aiterius,
Jua
ut comparel commoda ?
Is this to be believed, or c.in't be thought
That any one can be fo vile and naught.
As to rejoice in th'ills of other Men,
That to themlelves Advantage they may gain ?
SatDige/t. lib. 1. t.
17. De divcrfts regu/ii Juris, leg. 206.
i"
Comp. Zlcgler. ad Grot. d. 1. "^ Fid. D. I. v. t.
3.
1. 40. D- De hared. petit.
^
1. vi. t. 3. D- De rei vindic. *
Add.
1. vi. t. 1. 1- 20. 50. D- De rei vindic.
= Lib. iii. t. 32. leg. 22. De rei vindic.
"
Vid. 1.
5.
t. 3. I. 36. f
5.
1.
38, 39.
D De h^red. petit. &" lib. vi. t. i . 1. 27. f
5.
1.
3
1 . 1. 48. 1. 65. D. De rei vindic.
s
Vid. lib. ubi
fup.
1. 25. f.
8, 9. D- De
hared. petit. & 1. vi. t. i. I. 52. D. De rcivinaic.
Mr. Barb. NOTES on . yi, vii, viii, ix.
one would fearch themfelves, he'd find that our Wifhes inwardly are for the moll part raifed and fupported by the E.xpcnce of ano-
ther ; which being confider'd, it comes into my Mind, that Nature does not in this fwerve at all from her genera! Coune ; for Phy-
ficians hold, that the original Growth aod Increafe of every thing is the Alteration and Corruption of another ; for as Lucretius
fays, lib. ii. ver.
752, 753.
Nam quodcunquc fuis tnutatum jinibus exit,
Continuo hoc mors
eft
illius, quod fuit ante.
This Chapter oF Montaigne''s Effays, to which the Author refers us, and which is the twenty firft of the firft Book, was fo (hort,
that I thought that the Reader would no more grudge to read it, than I have done to copy it out. See Seneca De Bene/. 1. vi. c. 38.
from whence 'tis almoft all taken.
* See Examples of this in Grotius, B. 2. c. 10. f. 2. n. 2, (^c.
^ The Words are, ^lod cum eo, qui in aliena poteflate eft,
negotium gefium eji dicitur, ^ Digefl. 1. xv. t. 3. De in rctnverfo.
'
This Approbation of the Author is remarkable, but he faw not the Confequences of it, and it follows from all the other Prin-
ciples of his Decifion of the following Cafes.
*
The Roman Law alfo difpenfes with the honeft PoirefTor in reftoring what is loft through his Negligence, and what he has con-
fumed, or lavifhly fpent, believing it was his own. ^cmcunque igitur fumptum fecerint ex hareditate,
ft
quid diUpidaveruut,
ptrdiderunt, dum re fua fe
abuti putant, non prteflabimt, Digeft. 1. v. t. 3. De Hiercditatis Petitione, 1.
25. . 11. Sicut autem
fumptum, quernfecit, deducit, itafifacere debuit, neefecit, culpte htijus reddat rationem niji bona fidei pojfejpjr
eft,
tunc enim, quia
quaft juam rem r.egkxit, nulli querela fubjeBus
eft
ante petitam hareditatem. Ibid. leg. 31. . 3. Mr. Z.,5 P/^iW?.'
nevertheleis in
his Treatife of Reftitution, 1. iv. c. 5. p. 257.
adds this Reftridlion, At leaft if there be no Fault in the Getter. Indeed this appears
more agreeable to the common Principles, but yet we may dlfcern from hence that thofe Principles are not found.
'
The Truth is, the honeft Poffellor may keep both, as belonging to him by a full Right according to the Principles that we
h,ive above ellabliilied, ^. 3. n. i. So that let the Rules of the civil Law be what they will, I believe, that confidering natural
Right only, upon the whole Matter a good Intention produces the fame Effeft as to the Poflelibr as a real Property, as the Ro-
man Lawyers themfelves have agreed by this Maxim (making only an Exception in fuch Cafes, as the Law has ordered othervi-ife.)
Bona fides tantundem pofjidenti prceftat, quantum Veritas, quoties Lex impedimenta non
eft.
Digeft. lib. 1. t. 17.
Dc divcrf Reg. Jur,
leg.
1
36.
'
If the honeft PofTeffor may lawfully keep the Fruits produced by Nature, as I have afferted in the .foregoing Note, by a much
ftronger Keafon is he excufed from reiiorlng the Fruits fpent. The Interpreters of the Raman Law do not agree, that the civil
L.1WS oblige to Reftitution in this laft Cafe, although the Author cites fome Texts for it. See Vinnius upon the Inftitutes, 1. ii. t. 1.
haih
De Rerum Divifione,
f 35. Num.
9,
lo.
4^6 Of
the Obligations vjbich
arife Book
IV
hath faved his o-wn
^
. Yet here we are of Opinion,
Tiiat bcficies the Limitation
above added, it
fliould be Hkewife conlidered, whether the well-
meaning PollcObr be able to recover of the Party,
wr.o fold him the thing, Co much as he lolcth up-
on i:s being claim'd by the true Owner
^.
It
this is impofTible to be done, the Poflell'or is ne'er
the richer by the Bart;ain, when he is forced to
re.lore v.'hac he bought, and yet cannot make
hiruicif whole by recovering the Price he gave.
As to the Example of Caligula produced from
^
Sue-
toi, who tells us. That when he refior'd any exil'd
Pitnees to their Domiaims, he gave them tip likezvife
the Revenues, luhic't had been urmght in the mean time
into the Roman Treafur}. We may obferve, that
he be'ieved their Kingdoms to have been nnjuftly
taken from them, and confequently himfelf to be
in difhonefl Polleffion. Or if he did not condemn
his Predecefibr's Act in this Matter, yet it may
ftiil be quedioned, whether he rcftored thefe Fruits
and Profits out of fuppofed Duty and Confcience,
or out of meer Generoiity. So that we take it to
be the truer Judgment to affirm, that the innocent
Pcfiefibr is obliged to reflcre the Value of what
he hath fpent, when he cannot recover Damages
of the Perfon v/ho cheated him with this falfe
Title. For in that Cafe lie cannot be fuppofed to
have enriched himfclt by the Puichafe. And it
feems a greater Hardfliip to pay the Value of a
thing that is fpent and gone, than to reflore the
thing itfcif, were it forth coming.
X. Fourthly, Such a Pijftjfjr is not bound to jnake
good tho/e Fruits or Pafus -ahich he negletied to take;
becauje he neither hath them, nor any thing
clfe in
their Room. And his Negligence about what was
his own, or in all Ref;etts the fame as if it had
been his own, is adjiidg'd to be a fufficient Prtj.i-
dice to him
'^
.
XI. Fitthly,
Iffuch a Pcjf^jjor, having receiv'J
the thing as af.ee Gift,
fiall
have afterwu.ds be
flow'
d
it en another, be it net obliged to make Sati>fatiion to
the Owner,
unUfs it appear that he would have given
as jntich f^rne other way
'
;
for then the /paring his
own Stock will be reckon d a mutter
of
Gain and Ad-
vantage to him. Tin's Account feems to fuppofe a
Diftindion between Donations out of Duty, and
Donations out of nxcr Bounty
; as that the for-
mer only are to be made good in the Cafe before
us, and not the latter. Becaufe, ordinarily fpeak-
ing, no Man is prefum'd to give in this gratuitous
manner, unlcfs he tliinks lumfelf to have fcme-
what fuperfluous
;
and confequently his Inclination
to give IS judged to have proceeded from his Opi-
nion, that the thing which he tiiL.s difpofed of, and
which proved to be another's, was more than
he
wanted for his own Ufe. And as to that Obliga-
tion which arifeth from fuch a Bounty in the Re-
ceiver, it is by no means reckon'd amongft thofe
things which are capable of being rated at a fee
Price
; and theretore he, wiio only expects an un-
certain Return for what he hath actually beftow'd,
doth not in the leaft appear to have been made
richer by what he parted with on this Piofpett
*
.
But it is to be confidered likcwife farther, v/he-
ther the Prelent be ilill remaining in the laft Re-
ceiver's Hands or r.ot : If it be, the Proprietor
fhall claim it diredly of him, and not trouble the
intermediate Receiver : If nor, the main Burthen
(ball Hill fall on the Perfon who either novv polleiieth
the thing, or hath been made richer by it. But
the intermediate Poifeilbr lliall only come in for a
fmall Share in the Burthen, inalmuch as he too
perhaps had an Opportunity of making fome Ad-
vantage
XII. Sixthly,
If fuch a Pij](ff'.r, having
fir
fl
b tight the thing, (hrd/
afterwards have alienated it, he
Jhall nut be bound tu give the Owner any more tkin the
Overplus
of
the prime Co/i
'
j or
fo
imich as he hath
gaind by his Bargain. But
if
it
firfl cofl
him mtlnngy
and yet he hath Jold it, l.e jhiU then be obliged to give
up the Price received '
, in cafe the Owner cannot re-
cover the thing itfelf of the prefent
Pcffff^r ; and un-
lefi the former Paity hath fquander'd away the Price
he took, which,
if
net
fo eafily gotten, had not been
fo
prodigally
fpent. But he, who puts a tiling off tor
jufl; fo much as it cofl him, is no Gainer, being
fuppofed only to recover his own. Nor can it be
faid in this Cafe, that the Price fupplics the room
of the thing ; unlefs he parted with it out of a
knavifh Delign : Becaufe otherwife the Owner is
to challenge his Goods from tl.e hands of him who
is now in Pofledion.
There is a Law of the Dige/ls
^
urged in the
prefent Cafe, which runs thus ;
//'
ajter a Thief
hath fold the Goods he flole, the Ovener
of
them
jhall by violent means get the Pi ice out
of
his Hands,
he feems to be guilty
of
Robbery as much as the other
Party was befiAe, and to be equally vbnt:xious to the
Law. For all agree, that the Advantage
of a flo-
Icn thing, or the Money into which it is turn'd, is
not itfelf likewife flolen. But this Law proper-
ly refpeds civil Governments. For thofe who live
d I'fit
''' ''''''
^
^' ' ''7- ^-
'
The Words of the Digejl are, An ^Phihfiphi Profefonm numero Jint ? Et mn ptitem quia hoc prmum profiteri eos
opor-
tet, meranariam operam fpernere.
Proinde ne Juris quidem Chilis Profefforibui jus dicent : eft
quidem res
fanaiffima
Civilis fapicntia,
fed
qute pretio nummario mnftt aft\manda,nec dehoneftnnda, lib. 1. tit. 13. De Extraordinariis Cognitionibus, &c. 1. i.|.
4, 5-
We
may add, That the Rman Law allowed neither the Immunities, Privileges, nor Rewards to Poets, that it did to the ProteHors
or
ther Sciences, of which Monf. he Clerc gives th? Reafons in Tom. i, of his Parrhafiana, p. 51,
isfc
what
Chap. I.
Of
PRICE.
463
What
mighty
Rares fome Pearls bear, fVhofe Goud-
nefs confijis
in fuch
a degree
of
JVhitenefs, Largenefs,
Smoethuefs,
and IVeight,
'
Qualities
fo
hard to k
match'd,
that never any two
of
thvfe Pearls are found
alike ! Plin. Nat. Hi(K 1. ix. c.
35.
Pearls bear the
greatejl Priie of
any thing ;
they were
firfl
brought to
Rome
i^ben Alexandria was taken, not long before
Sylla'i
I'lme ;
but a little after were
ft much in Fa-
Jhion,
that even ordinary H^vmen ajfetied to wear them
;
for
the^ ufed to fay,
A Pearl to fVomen, when they
appear'd in publick, was as good as a Liflor, Idem,
ibid.
Some few. Is are
fo
valuable, that no Price can
be ft
upon them, Id. 1. xxxvii. Prooem. Our Coral
amoiig/i the Indians beiirs as great a Price as their
Jewkls do anwngfl us. Idem. 1. xxxii. c. 2. Ad. Idem.
c. xvii.
3-i.
1. X. c. 29. l.xii. c.
14, 17, 19 1. xiii.
c. 5.
1. xxxvii. c. 4.
1. vi. c.
7. Of Silk. iVnh
fo
much Pains, and
fo fir
is it brought, that Women,
when th':y appear m publick, may be feen through. At
this Day Amber
with us bears a ?no.lerate Rite, in the
Eaft it is va/i/j dear.
^
Nay, the Folly ot Men t'an-
iles thefe miifl; be foinerhing extraordinary in what
cofts much.
Hcliogabalus ordered the Prices of ihc
Dainties provided for his Table to be reprefented
to him greater than really they were ; for that, he
faid, created an Appetite to them
magis ilia
juvant,qua>pluris emuntur,
Jiiv. Sat.xi. ver. id. Lu-
xury has iinpns'd a Price upon the very Dregs that the
Sea
cafts
up. Curt. 1. viii. c.p. n. 19. Ed. Cellar. Old
Plate receives a JAtlue from the Fame
of
the Workmen;
Brafs from
a few
Mens Fi'My, Sen. Confol. ad Helv.
c. xi. "^janus Nicius E'ithraus
^
tells us of "Tulips,
that thirty Years ago (when he writ this) they
lay upon the Top of the Alps, without any Care
or Notice taken of them : Yet, when they were
brought to Town, the People fond of them for
their Rarity, fet fuch a Price upon them, as that
every Root fold for above a hundred Crowns. But
after they had increafed and grew common, their
Price funk fo low, that hardly any thing was cheap-
er. As our Defires are,
fo
are our EJleem of
things
;
and there's no End
of
raijing the Prices
of
things, un-
lefs
we
firfl
fet
Bounds to our Extravagancies, Cicero
in Verrem, 1. iv. c. 7.
China and Earthen Wares
are the dearer for being brittle : For 'tis an Argument
of
Riches, and a glorious piece
of
Extravagancy to have
a thing that fhall immediately be wholly defiroyed, Plin
.
1. xxxiii. T'he Brittlenefs makes Cryftal the dearer :
For among unskilful People the Danger, which ought
to
fink
the Price, raifes it, Sen. De Ben. 1. vii. c. ix.
Strab. 1. ii. p. 87. Ed. Genev,
Of
precious Stones,
that are
fo
much valued, that tbofe that have thetn not,
are as happy as thofe that have them. For Mankind
JS fo
whimfical and filly, as to think thofe happy
who
policfs Superfluities,
rather than thofe who
abound in all die
Neceil^ries
and Convenienciesot
Lite. And therefore
it ought to be rank'd among
the fenfelefs Opinions of the common People to va-
lue things either for their being new, or (carce, or
hard to be gotten, or brought from far,
unlels their
Goodnefs alfo and their Ufefulnefs
recommend
'em.
Charron de la Sagejje,
1. i. c.
39. num. 11.
and 1. ii',
c. 9. num. 2. Agatharchis de mari rtibro, c. xlix.
fpeaking of the Altlai and djjandriui,
whofe Coun-
try abounded in Gold, fays, They
barter'd Gold
for
a triple quantity
of Brafs, but gave double
for Jnm.
Fur they proportion d their Plates according
to the Plenty
or Scarcity of the Commodities, in which we have not
fo
much Regard to the Nature
vf
the Thing, as the Ne-
cejj'ity
of
its
Ufe. But thofe things tiiat are of dai-
ly Ufe, and efpccially fuch as relate to Proviiion,
Apparel, and Arms, rife in their Price, when they
become neceflary as well as fcarce ; as in a Dearth
of Corn, or in a Siege, or in flow Voyr.ges, where
Hunger and Thirftare craving to befatisfied, and
Life njufl: be prcferv'd upon any Terms. Plin. Nut.
Hifl. 1. viii. c.
57.
Quintlil. DecLim. xii.
p. i-]6. Ed,
Lugd. Bat. hi a very great fcarcity any thing that can
be bought is cheap. When Hmnibal befieged
Cafili-
rium, a Moufe was fold for two hundred Pieces of
Gold
J
and he that fold it died of Hunger, where-
as he that bought it was preferved.
The Prices of
artificial things, befidesthe Scarcity of them, are
much raifed by the 3 Neatnefs of the Art.
"
In
"
which L. Mummius was fo ignorant, that when
he had taken Corinth, and thereby got poflelfion
of the Statues and Pidures drawn by the ^tblell
"
Maflers, he proclaimed to thofe whom he had
"
hired to tranfport them into Italy,
that if they
"
loft them, they ihould find him new ones, Veil.
Pat. 1. i. c.
13. The Reputation of the Artificer
adds Credit to fome, and others are the more va-
luable for the Charader of their former Pofleilbr.
As Liician
^
mentions one, who had bougtjfc Epi-
cletus's earthen Lamp at three hundred Denarii, ho-
ping, no doubt, to get Epitietus's VVifdom, by ftu-
dying by that Light. Tnus the City Cufco in Peru
was in fo great Requeft, that even the Seed that
grew near it, tho' really no better than any other,
was yet of more Value than that which grew elfe-
where
"
, In fliort, the Difficulty, the E'egancy,
the Ufefulnefs, and Nece.lity of the Work, the
Scarcity of V/orkmen, their being
''
Maflers in the
Art, their not being under a Neceflity of Working,
all contribute to the raiiing of the Price. That fort
of
Work is mojl artificial, which depends leafi upon
^
Pitmcoth- lib. iii. c. 17.
in the Life of
J.
Barclay, who was a great Admirer of them.
>
Jdverjus indoSium, p. 386.
Ed. Amfte!. ^
GarcilaJJo de la Vega, Comment. Reg. 1. iii. c. 20.
'^ "
The Jthenians had more need of good
"
ftrong Roofs to their Houfes, than the famous Ivory Statue of Minerva ; yet I had rather be Phidias than the bell of Carpen-
"
ters. For a Man muft be rated, not according to what he can do ; but according to what Reputation he is in ; efpecially lince
"
few can draw or carve finely ; but any one is cipable of being a Carpenter, or a Porter.
"
Cic. in Bruto, c. 73.
"
Thus Nicias
"
gave a Talent for a Servant to look after his Silver-Mines.
"
Xen. Mem. Socrat.
p-435.
in fin. 1. 2.
Mr. Barb. NOTES on . vi.
'
Etenim qui modus
eft
in his rebus cupiditatis, idem
eft a:Jlimationis : Difficile
efl
enirn
finem facers pretio, niji libidini feceris :
i. e. In thefe Things the Value of theni is according to Mens Defires. 'Tis hard to fet Bounds to the Price 'till you have limited
your Defires after them. Cicero in Ferr. lib. iv. chap.
7.
*
Hence it was, that by the .^o(7// Law an Eunuch-flave, which was above ten Years old, and underftood fome Art, was valued
at more than a Slave that pretended to Phyfick. See Cod. lib. vi. tit.
43.
Cominun. de Legal. & 1. 3. princip. and Mr.
ThoKafius'^
Difcourfe, De Pretio AffeSlionis, Sec. chap. ii.
.15.
3 'Tis becaufe curious Works are rare. So that tlie Author improperly diftingi'.ifhes between the Rarity of fuch things as are
relate with it ; as is evident from other Examples alledged by him. See Mr, 'Thomaf,ui^i Difcourfe, De Pretio AffeSiionis, and
chap. i. . 1 1.
Fortune
;
4^4 Of
PR I C E, BO O K
V.
Fortune ;
that the
mofl
fordid, vclich
nwfl defiks
the
B:^ly
;
that the mofi Jeyuile, -which is
of
mofi Labour
to the Body ; that the
mofi
ignoble, which requires
the
lenft
Virtue, Arift, Polic. I. i. c.
7. (i i.) And
again, That Exercife, A,t, or Difcipline is to be re-
puted mean, that renders either the Body or the Soul
vnjit
for
the Praclice
of Virtue, Polir.l. viii. c. 2.
(4)
As for the more noble Arts,
fme are more worth than
they cofl ; you purchafe
of
a Phyfcian Life
and Health,
'Things invaluable ; of
a learned Tutor the liberal Sci'
ences, and the Adornment
of
the Mind : And therefore,
in fuch Cafes, we do not pay for things they teach us,
but
fir
their Labour, Sen. De Ben. 1. vi. c. 15.
VII. But fometimes it happens, that fome cer-
tain things are valued at an high Rate by fone
particular People only, which may be call'd The
Price
of Fanfy. It was a Saying ot a certain Ara-
bian, Whatfoever is dear, ahho it be dear, yet if I
have a Fanfy for it, it is not dear ;
nor can any thing
that pleafes be fiid to
coft
too tmich, Leo Afric. 1. iii.
All Gifts are valued, as they are acceptable to the Re-
ceiver, Liban. Declam. xli.
p. 870. D. Edit. Parif.
And this, where Animals are the Objeft, proceeds
from a fort of Acquaintance with them
'
; or, be-
caufe they know how to fuit themfeives with our
Humour ; or becaufe we have efcaped fome immi-
nenc Danger by their Afliftance ; or perhaps they
are the Remembrancers of fome fignal Event. Be-
lides, fme things are recommended by the Friend
that gives them, fo that we would not part with
them for feveral otheis of the fame Goodnefs.
ALhi lintewn remitte.
Qitod me non mcvet aftimatione,
Vtrum
ef} ij.vviiJ.i(rvvov
mei fodalis,
Catul. Carm. xii. 11, 12, 13.
Acceptiffima femper
Munera funt. Author qua pretiofa facit.
Ovid. Epift. xvir. ver.
71, 72.
Manytalfo put a Value on things, becaufe fome
great Man, whom they are willing to compliment,
has exprel.s'd an Efteem for them. Thus, this or
that Provilion or Apparel rifes in its Price, when
the King is pleas'd to be taken with if. But here
fome obferve, that the Fanfy of the Bi:yer
ought
not to raife the Price of the Commodity,
iinJefs
fome other Caufes concur. The
*
/iow
Laws
make
no allowance for the Fanfy of the Party in the
Rc-
ftitution of Damage done by Chance
"
: And
)ec
Mercnants frequently raile the Price, when they
fee
the Buyer fond of the Commodity. Diudorus
^icu-
lus
^
obferves what an advantage the Italian
Fadors
made of the Drunkennefs of the Gauls: They
brought
them Wtne, and fold it at
mofl
tmconfcionable
Rates
;
for they had a Boy for a Hogjbead, and
fu
exchangd
their Wine for a Butler.
However the Affcdion of the Seller may fairly
raife the Price, if fo be he h'gnifies it to the Buy-
er ;
for to pare with a beloved thing, for the fake
of the Buyer, deferves fome Confideracion
""
. Laft-
ly. The Price of things is fometimes enhanced by
fome virions Habit of Mind, as Vain-glory,
Cru-
elty, and the like
''.
Vlir. And thefe always raife the Prices of
things, as their Contraries always lower them. But,
in order to regulate the Prices ot particular things,
pro hie & nunc, and to reduce them to a j.ifl Stand-
ard, vve muft remember, that in the ftate of Na-
ture every one has Power to put what Price he
pleaies upon his own Goods, as being, in that
Itatc, the fole and fupreme Malter of tnem. For,
in this Cafe, fhould another prize my Goods, ic
would ftill be in my Power to accept or r- j.Ct it
;
and thus I fliould, in the end, put the Price upon
them my felf: and tho' I lay never fo extravaganc
a Rate upon them, no Man can have any Ci fe
to complain
J
for no one ( ught to be conctin'd
how much I magnify my Riches in my own Fanly
;
and they who think the Price too great, may let ic
alone. And therefore, if any one has a mind to my
Goods, 'tis fit I fliould put what Price i pon them
I pleafe ,
as, on the other iide, fhould 1 force my
Commodity upon another, 1 muft take what the
Buyer, who is indifterent, will be [ilcis'd to give me.
Indeed, if any one thro' ill Naciire, or Hatred, or
Envy, refufes a Man in want, either to (ell at all,
or at IcaR fells upon hard
'
unreafonable terms, then,
and only then there is Caufe to complain. Fiom
whence it tollows, that in a flate of Nature, the
"
ViJ. Lib, ix. t. 2. 1.
34.. D. ad L. Aquil. & lib. xxxv. t. 2. 1. 36. ad Leg. Falcid.
i*
Lib. v. c. 26. p. 304.
The fame
d. 1. c. 17. relates,
"
That the People of Baleares valued one Woman at the Rate of four Men, they were fo prone to Venery.
<^
Jdd. 1. Ixii. f I. 1. 63. D. ad L. Falcidiam.
''
What Rates the old Gauh fet upon the Heads of their Enemies, fee in
Died. Sic. 1. V. c. 29. p. 307.
and Strain, 1. iv.
Mr. Barb. NOTES on . vi, vii, viii.
"*
Rrfpondetur, quadamphiris ejje, quam emuntur. Emis a Medico rem !7ttrfiimabik?n, vitam, iff valctudiiicm boiiam : a bonarum artium
PrreceploreJludin liberalia, (^ animi ctiltum- Itaque his non Rei pretium,
fed Opertcfohitur, quod deferviunt, quod a rebui fuis a'l'tcati
nobis vacant. Mcrcedem non meriti,
Jed Occupati'jnisJuieferunt Se ^intil. Inllit. Orat. 1. xii. c. 7. in fin. P^tharoras blamed thofc
that took Money of young Men for teaching them fuch things as were not to be valued : Mirfou rHv u.riy.iirmy 'xpiTTovrai. Jambl.
de Vit. I'ythag. c. xxxiv. num.
245. Ed. Kufter.
'
I liave a little correfted this Place to make it agree with what he has faid in his Abridgment
of
the Duties
of
a Man and a Citi-
zen, lib. i. c. 14. ^. 4. and have alfo been obliged to make fome fmall Alterations a little farther ; for this Paragraph, and fome o-
thers in this Chapter are very difordcrly placed.
* The Words are, Si fervum meum occidifti, non affcHiones aflimandas ejfe puto [veluti
fifiUum fuum naturalem quis occiderit, quern
tu magna emptum -jelles)
fed quanti omnibus valeret. Sextus quoque Pedius nit, Pretia rerum non ex adfellione, nee utilitate ftngulo-
rum,
fed communitcrfungi. Digell. lib. ix. tit. 2. Ad Leg. Aquil. leg.
33.
See alfo lib. xxxv. tit. 2. Ad Leg. Falcid. leg. 62,61.
and Mr. fhomaftui's Difcourfe De Prctio AffeBiotiis, Sec. c. iii. . 12, 13.
'
Mr. Thomaftus, in his
Jurifprud. Divin. 1. ii. c. 1 1 . 5- 13. diftinguifhes between a thing of the fame kind, and a thing which
is capable of an Equivalent ; for only the firll can be valued as high as we pleafe. As for the other, if in a Loan, or Excliange, for
Example, one pretends to value his Wine or Corn at .an higher Rate, .iltho' in reality they are of the fame Nature and Goodnefs as
that of the other Bargainer, Mr. Thor/iaftus fays,
"
That he offends .againll the natur.il Equality of Men, which doth not allow US
"
to weigh our own and other Mens Goods in an uneven Balance, and judge differently of them, or of what appertains to them,
"
without a juil Caufe.
"
We may alfo add, That the Nature of Commerce, by which Prices are fettled, requires Equality ; for
there is a vifible Inequality, when things of the fame Kind and Goodnefs are cftimatcd at a different Rate : Whereas, when we are
treating about Things of a different Nature, befides that they can't be fo exaftly equalled, the Eileem which the Proprietor hath
for it may be refpefted in the Valuation as a part of the Price, and fo reduce the Exchange to a juft Equality.
Price
Chap. I.
Of
PRICE.
46?
Price of every thing is to be determined by the
Agreement of the Conrradtors ; nor can any one
be laid to have oft'ended againft the Law of Com-
roerce for making the bell of his Market, pro-
vided he has not been inhuman towards the ne-
ceflitons
"
.
But in a regular Government the Prices of things
are determined, either by an Order from the Ma-
giilrate, or lome Laws, or elfe by the common
Judgment and Eftimate of Men, together with
the Confent of the Parties : The former may be
cali'd the legal, the other the natural Price
^
. The
icgal is always preium'd to be confonanc tojuftice
and Equity, unjefs the contrary docs evidently
appear : for fometimes grofs Ignorance, and more
frequently Hatred or Favour towards tne Bayer
or Seller, or fome other Corruption, or private In-
tereil, interpofes. The legal Price is fix'd, as it
u'ere, in a Point, and admits of no Latitude, but
the ieafl; Excefs becomes Injuftice. And when ^tis
fix'd (as moft commonly it is) in Favour of the
Buyer, the Seller cannot in Juftice demand more
;
but the Buyer may, with the Content of the Sel-
ler, iink below it, provided he does not fall fliort
of the lowe/l Degree in the natural Price : and tiie
Seller may lawfully take lefs, provided it does not
tend to the Prejudice of others of the fame Trade.
But if the Price be fix'd in Favour of the Seller,
then the Buyer cannot lawfully prefs the Seilet to
take lels, who yet, if he tiiinks fit, may take it
^
;
tor any Man may recede from his own Right :
However, in this Cafe, the Seller inny take more,
provided it does r.oc exceed the
'
higheft Degree
in the natural Price. On Labour, the Price is ge-
nerally fix'd in Favour of the Labourer; on Com-
modities, in Favour of the Buyer. Li fome Places,
a more fnbtil Method is taken to prevent unrea-
fonable Prices
; as in Greece, the F/Jhrncngers were
not permitted to lit, but obliged to fell their Fifli
{landing, that fo, by the tedioufnefs and tircfom-
nefs of the Pollure, they might be forced to fell
them while they were fweet, and at a moderate
Rate.
IX. But the natural
Price,
which is not fix'd by
Law '
,
admits of feme
Latitude,
within which
more or lefs may be
demanded
and given. Of
this Price Seneca is to be
underflood,
when he fays,
"
Wnat matters hove much ii is,
fi^ce
the Buyer and
Seller agree upon it ? The Value of t!ri.;gs is :,ccord-
ing to the Market
; when you have
commended
them, tliey are worth fo much as they can fell for,
and no more. De Benef. lib. vi. c. 15. And Livi
63.
of Book XXV. I, 2. of the
Digeft. ad L FutJ.
'The Prices
of things 3
are not
fis'd
acccrdig
t- ti)e
Fancy, or
Ufe
of
particular People, but as they are va-
luable to every body. See alfo Lav.}
35.
of Bjok jx.
t. 2. of the Digefi. ad L. Aquiliam. In fome Places
(fays Arifktle, Nicojn.ix. i. towards the End) the
Lazes allow no AEiion
for voluntayy Commerce
; thinking
it reafenable that the Creditor
flxuld entirely depend tip-
on the
Hoaefty if the Debtor : For they thought the
Debtor fitter to fudge hroj much ought to be paid, than
the other. For 7nan\ things are
differently rated by
thofe that are in
Pcffcjfton, ana thofe that
dcfire to be
in
Pujfiffion of them
; every one fetting a great Rate
up;n hii ovsn. But a Return ought to be made accord-
ing to the Opir.ion
of
htm that is to make it , -nhiih
perhaps ought to be
adfufied, not according to th; Value
he puts upon the things, xxihen in
Pfftlfim
f
them, but
according to the Value he put upon them before he had
them
*=
.
By reafon of this Laritueic tncy generally
divide the natmal Price into three Degrees ; the
lowed or favourable,
the middle or Veafonabie,
the hightlt or rigorous : within which Degrees
any thing may be bought or fo a dearer, or clieap-
er. But of what Extent this Latitude m.^y be, it
is not eafy to give a Rule that will reach all
Cafes : But that may be faid to be the j.ft
Price, which is generally
agreed i;po'.i by tliole
who fufiiciently underfbnd the Market and tne
Commodities.
Hither may be referred that of
Varro de Ling. Lat. lib. iv.
*
Pretium efl,
quod
aflmaticnii emptionijque
caufa c nfiituitur : ditium a
periris, quod hi
foli piffunt facere re:le id. Yet Sal-
jnafius, De Ufuris, ridicules this Derivation, and
that with Reafon.
= See Gen. xli.
49.
& xlvii.
13,
(^c.
>
That is, as Mr. Bnrkyrac has it, the ordinary or current Price.
Grot. 1. ii. c. 12. f. 14. (J Ciceron. Verrin. De Signis. S>jii modus cfl in his reka cupidit/itu, idem
efl apmatimis.
Vid.
Mr. Bare. NOTES en
. vui, ix.
It is not always allowed to give a Price lower than what is let by the Law ; and this takes place chiefly when the Taxation is
fixed, not tor the Interell of private Perfons only, but ibr the publick Good, and as a fumptuary Law. Nor may we always con-
tent ourlelves with lefs; which ouglit principally to be obferved, when the Magillrate, by fixing a Price, endeavours to hinder Mo-
nopolies, or to encourage Merchandife and Commerce in general, as Mr.
Thmnfius has \ery well obferved in his 7unTiirud Di-jin
ubi fupra, .
56, 57. _
-^ -"^
3 See Atheiieeus, 1. vi. c. 2.
' The common Price, according to Mx.
Thomnfius, ubi fupra,
. 24. hath alfo Place among thofe xvho live in the independent
St.ue of Nature. For, as he fays, it would be very hard to maintain any Commerce, if every one fliould always over- value his own
Goods, and under-value another's. The befl: way to preferve an Equality between Perfons naturallv equal, is, that every one fub-
mit himielf to the Judgment of the greater Number ; and fo there is Reafon for fuch an Eftablilhmen't in Nations as thif. That both
Bai-gainers mould ordinarily govern themfelves by the Ellimation which their Equals make of things of a like Nature. So th.u ,f Men
do not follow that Eftimstion, they may be thought to ofFend, not truly againft the Law of rigorous Juftice, but againft the Lau .. of
Humanity, and natural Honefty. 'Tis alio a great Imprudence in Trading to value our Goods at lo high a Price, as to find no Buy-
ers
;
as It often happen?, when Men over- value their Goods at more than they are thought worth by fuch Men, as commonly de i in
them, and underftand them. See the fame Author's Dilcourfe, intitled, De .^quitatc Cercbrina, leg. ii. Cod. ii. De Rcfdnacnda
Vendiiione, c. ii.
. 24.
Seneca
%
Words are, ^id znterefi quanti
Jint, cum de pretio inter ementem tf vendentem convenerit. Pretium
cufiifque rei
froUnporccJi. Cum bene
ifia
laudaveris, tantifun't, quanta phris venire nonpojfunt.
>
He treats here of the Value of a Damage, and not of ^vhat may be given or required in Baying and Selling, or making any o-
ther Contraifl. See the Difcourfe quoted c. ii. .
34.
.
^
Py''^^' '" Latin Pretium, is that which is appointed upon the Account cf the Value and Buying of a thing ; 'tis fo called from
Perui.', i. e. fuch as are skilful, becaufe they only are able to fix it.
O o X. In
4^6 Of
PRICE, Book
V3
X. In regulating this natural Price, Regard is to
be had to the Labour and Expence
'*
o( the Mer-
chant, in imporcint^ and taking Care of his Goods
;
f r upon this ground it is that a Merchant can ju-
flity his feiUng fo much dearer than he bout^ht :
But this Regaru is only to be had to rhofe Expen-
ces wiiich thtry are ul'ualiy put to ; extraordinary
Chances have nothing to do h;re. And therefore
it can be no reafon for a Merchant to raife his
Races, becaufe he happen'd to break his Leg, or
to fall fick, or becaufe part of his Goods were caft
away, or ftolcn ; unlefs fuch Accidents contribute
to the Scarcity of the Commodity; much lefs can
he bring in his own extravagant and fuperfluous
Expences. Bur his Time, his Study, his Care, in
getting,
prefcrving, and forting his Commodities,
as aifohis Servants Wages, may tairly be rated by
him. And it would be inhuman, and tend to the
Difcouragement of Induftry, to ailow a Tradef-
man, or a Man of any other Calling, no more
Gain than julf enough to fupply him poL.rly and
fparingly with the NecefTities of Life. The Diffi-
culty aifo, and Length and Danger of the Voyage,
may be brought into the Accounr, as ailo the cit-
ferenc Value of Monies and Commodities in dif-
ferent Countries. Befides, the way of Sale may
alter the Cafe ; for they who fell by Retail may
demand fomewhat more than thofe who fell by
Wholefale ; their Trouble being greater, and it
being more advantageous to have a good round
Si.m paid down at once, than to receive the fame
by little and little. But what fudden and frequent
Alterations the Markets admit of by reafon of the
Plenty or Scarcity of Buyers, Money, or Commo-
dities, is well known. For the Scaicity of Money
and Buyers proceeding from fome particular Caule,
meeting with a Gli.t of Commodities, fu ks the
Price
^.
As, on the other (ide, the Plenty of
Buyers and Money, or the Scarcity of the Commo-
dity, raifes it
"^
'.
Belides, it helps to lower the
Price, when rhe Seller forces his Commodities upon
lis of his own Accord, as if they lay upon his
Hands
-
, f- r that ptoceeds from a Scarcity of Buy-
ers ;
and btlides, in this Cafe, the Purchafer lias
often no Occafion for the thing, nor would buy it,
but that he thinks it a good Bargain : And indeed,
in fuch a Cafe we often buy, not fo much for our
own, as for the Seller's fake. And tiicrcfore, when
things are fold by Auction, or Inch of Candle,
they often go off tor lefs than otherwife they would
fell lor
; it being the Condition of that fort cf Sale,
that
5 the Ware fhould go ro the higheff Bidder :
And yet, fometimes, the Warmth and Emulation
of the Company riles above the ordinary
Price
;
which is indeed, at all times, rais'd by the Plenty
of the Buyers. Again, tiic Seller ought to have
Allowance made him for the Lois enfuing, or the
Gain he foregoes, by felling at that time when tfiei
Buyer is importunate : For it would be unreafona-
ble to expett me to part with my Goods, b.ic up-
on fuch Terms as to be no Lofer by them. Be-
lides, the Lofs or Gain, by reafon oi How oc
prompt Payment, may be, and indeed always is,
brought into the Account : For
+
a Day is part
of the Price
;
which is more if paid down upon
the Nail, than if paid f-)me time after ; for in the
mean time I might perhaps turn and apply ic ano-
ther way to my Advantage
^
. And therefore
"^
Po-
lybius commends the Generolity of the younger
Siipio,
for
p.i)tng hii Siflivs their Portions forthwith^
which he was not obliged to do 'til! tvjo or three I'eurs
after, and that too at Rome, a City where no Mdit
gives away any thing at all, or pays a Penny before it
be due
; fo
diligent is every Body in getting Money, and
jo much Advantage do they make
of
the Time.
> Laliiy, We may add what Themiflocles, when
he was going ro fell his Farm, gave a publick Ad-
vertillment of
^
,
That he hud a govd Naglbour,
A
Houfe, fays Sadus
s , that has gr.t
fuch a Ncigi bour as
you (fpeaking to a rafcally
Jew) may p(,jf:bly fell far
ten Drachms
(f
b.id Mmey ; bin there is hopes, that
when you are gone, it may be worth an hiinared. A
good Neighbour therefore raifes the Price of a
Farm ;
cfpccially in a Country where the good old
way of the Spartans obtains
*"
, rvho fnade fre.' with
their Neighbours Servants, Dugs, and Horfs, as
if
they vjere thdr own : And when a Alan wanted any
thing that his Neighbour was Mafier of,
he need but to
open his Store- houfe, and to furnijh himfelf from thehce
with what he had occafion
fr.
'1
he Caule of railing
the Price of Slaves, in yu/lin, was very unufual,
and not a little owing to Cruelty : The Price
of
the Tlieban Captives was rais'd, fays he, not
for
their being ferviceabk to the Buyer, but cut
of
Hatred
to tl:e Enemy
'
.
XI. But, when mod Nations had degenerated
from their primitive Simplicity, 'tis eafy to ima-
gine that this proper Price could not fuffice for the
Dilpatchof Bulinefs and Commerce, wnich daily
incrcafcd : For Commerce conliffed in Bartering
only ; and Wo:k was paid in Work, or elfe in
Commodities. But after our Luxury had increafed
our Neccflicies, and we, not content with the Pro-
uuce of our own Soil, liad a mind to the Delica-
cies of other Nations, ic was hard for any one to
poiftfs fuch Goods, for which any other would be
See Grot, in the Place above-cited.
* "
Cheapnefs proceeds from a multitude of Sellers.
"
Ta:it. An. vi. c. i
-
.
\"'.^
Socrat.HiJl. Ecclff. 1. iii. c. 17. in the Beginning.
''
Vid. Mar/. 1. vi. ep.
30.
*
In excerptis Peirefcianis. Aa'd.GrotA.'u.
c. 12. f 14.
f
Plut. Apophtheg.
p. 185. D-
Rofar. Perl. c. iv.
^
Alention'd by Plutarch, Ir.fr.t. L-iconidi,
p. 238. Ed.Wicb.
'
Ju/l. 1. xi. c. I.
Mr. B.^RE. NOTES on
. x.
'
I have added this Period tikcn out of our Author's Abridgment De Officio
Ihrn- is' Ch- B. 1. i. c. 14. f. 6. -.vheri "rii tiid, a
high Price is fct upon a thing, when 'tis fold only to pleafe one importunate to have it, and without which Intreary it would
not
have been fold. Any one may fee that this ought not to liave been omitted.
^ Efpecially, where Calo\ Rule of good Husbandry is obferved, which Plutarch relates in his Life,
"
Nothing is cheap that is
" fuperfluous ; and what we have no Occafion for, although \u fold for a Farthing, comes dear.
"
'Tis a Provsr'o, M::rx
u.'trxet
futet, Proffer'd Ware llinks. Plutarch's Words are, "0*15
Ss n>jJsv iimtv tivai tUv jtifnrO.v, i>\h'^Tii
'
turcu, k^u aoirap.'s ii-rfiim'f'''*''
tsaab vofii'tiiv' In vit. Caton.
' See Chap. v.
5. 6. following.
* Nam Diesfilutianis, Jicuti fumma, pars ejljlipulalimis. Digeft. 1. ii. tit. 13. De EJc.':Jo, I i 2. See alfo 1. ::viii. t. 2. Df
in Diem atlJifli'jne, 1. 4. . 6. & 1. 15. in
Jin.
' In ail this Paragraph the Author treats only of the outward Circumftances, which help to raife or lelTen the Price of things.
But we ought always to fuppofe that the natural and internal Qualities of the things themfclves do very much alter the V"alui,
be-
caufe theic intrinlick Qualities or Circumft.-.nces increaie or leflen the Benefii we may have by it. To this the Example of Ihem'fii-
<lt;, alledg'd by this Author, is to be referred,
iS:<
willing
Chap.
I.
Of
PRICE.
467
willing to barter ihvfe Commodities that we want-
ed, or which indeed could be exactly equivalent
to th'-m. And, in a well-regulated State, where
the Subjects are divided into various Orders and
Ranks, there nuift needs be feveral forts of Men
which would not be able to fublifl, or at Icalt ve-
ry
hardly, oid the hmple way of Bartering (till
prevail. As 'tis very evident that thofe Nations,
which are yet unacquainted v/ith the life of Mo-
ney,
are pertedt Strangers to the more improv'd and
cultivated way of Living. Vid. Biisl^tq. E il\. iii.
where he treats of the Manners of the Coidi, Add.
\. i. princ. 1. xviii. t. i. D. De contmh. Empt. And
therefore Maximus Tyrius, Diil. xxxvi. p. 344.
Ed.
Liigd. An. 1630, is in a fweet Dream, when he
fays. Meat, Drink, and Raiment, and other Necef-
faries Men provide, by bartering Brafs and Iron ;
and
thcje
of
more Value, by Gold and Silver. But t'jis is
through the Coiritptiun
of
Mankind : for
-mithout any
life vf
Mi'ials they might cotnmunicaie gratis to one
another, by this mojl jilfl Meafurc, that he -who ivants
fh'uld provide for
bis Nicejjity, by burrotdng
of
hint
that abuunds ; and he that abounds, Jhould lend npon
no other Condition, than that he in his Turn jh.'.uld be
ferviceable to him.
XII. And therefore the moft civiliz'd Nations,
by Agreement, thought fit to fet a certain eminent
Price upon fom.e particular thing, as a Meafure
and Standard for the Price of every thing elfe
;
by the help of which one might procure any fale-
able Commodity, and Commerce might be carried
on
'
more conveniently. ^To this Purpofe A:i-
Jiot'e
^
difcourfes excellently ; IVhenPf^ant, fays he,
had made Bartering necejfary, an)
fimple
Exchange
of
Commodity -was f/ifpcient to anfiuer our prifent Exigen-
cies. But becaufe we knew not what, or how much we
might have
Oaafan fir hereafter, the Ufe cf
Aloney
was introduced; which is, as it were, a Pledge or Se-
curity, on which Men have agreed to iv7p(fe fich a
Power, as to make it capable
of
procuring any jaleablc
Commodity. And in another Place'', IVhen Alens
Ni'Cffjities were to be fupplyd from abroad, by import-
ing what they wanted, and exporting what they abound-
ed with, it was neceffary to introduce the Ufe nf Mo-
ney. For every thing necejfary for Life
ctuld not eafily
be convey'd backward
and
forward. And therefore to
cany on
fucb a Barter they
confemed to give and re-
ceive fuch a thing at
fuch a Value, as Iron, Sihrr, or
any thing
elfe : luhich, at
firfl, was determined by
Quantity, or Weight
; but
after had a Stamp put up-
on It, to fave the Tumble
of
Weighing
; for the Stamp
is a Token and Demonflrati'an
of fuch a Qumniiy.
Again,
*
'^
Becaufe an ArcbiteB
d^ferves more
for his
Work, than a Shoemaker does
for his
i
and it would
be difficult for thefe tiuo to barter together, it being un-
reafonable to give a Houfe for a Pair
of Shoes
; there-
fore, to render fuch things faleable. Mankind have
thought
fit, by comm.n Confeta, to make
ufe of
a Piece
of
Silver, which they call Jvloney : And this,
for the
Maintenance
of
civil Communication^ they have agreed
jhould be accepted for any Commodity, according to the
Value and P)ice
of
it,
Xlll. For this Purpofe the more noble and fcarce
Metals, Gold '', Silver
%
and Bral's feemed moft
proper. For as we accept a Man of iaiown Cre-
dit and Valuci and not every common Fellow for
a Surety, fo no Man would part with his Goods,
which perhaps he iiad acquired with great Labour
and Induftry, ior what he might meet with any
where, as a handlul of Duft and Sand ; it was
necelfiry therefore Money Ihould conlifl of fuch a
Matter, as might be convenient for keeping, and,
by reafon of its Scarcity, fhouki have the Value of
many things cro;:ded and united in if. Thefe Q^-ia-
lities are found in Metals, which are alfo of iuch
a clofe compaded Sublfance, as not eafily to be
worn out, and yet capable of being divided into
minute Pieces, both which are abfolutcly necefiliry
for that which is defign'd to be a Standard and
common Mcalure in Commerce. But fince this
Ufe ot Money does not follow from the Nature
of Things, but the com.mon Coiifent and Agree-
ment of Men
'
; any thing elfe, in Cafes of Exi-
gency, may ferve in its (lead. Thus Leather, Pa-
per, and fuch like, with fome certain Scamp upon
them, have often pafs'd for Money, in Times of
NeccUity ; which, when thole Emergencies were
over, have been exchang'd for the common Spe-
cies
s
. Thus in the Kingdom of Congo and Tm-
butto m Africa
^
, and in many Places of Nurth
^
Nicom. 1. V. c. 8.
"
Money was found out as .-i common Meafure to which all other tilings fhould be referred.
"
Nicom. ix. c. i.
^
Polyb- 1. i. 6.
(9)
Nicom. 1. v. c. 8.
"
All things th.it are barter"d ought to be cap.ible of being compared together, to which
" KJic Money is fubfervient ; which, in a manner, is a Medium, for it mcifures all things : For Money was fubftituted by Conlent,
"
and is therefore call'd vofjufffxa, as being fuch, not by Nature, but vo'rxw by the I.kv ; k being in the Power of Man to alter it, or
"
mike it ufclefs. Every thing ought to have a Price let upon it, for fo there will be continual Traffick ; and where that is, there
"
muft be Society. Money therefore, as a Mriiiiim, renders things commenfurable, and confequently equal. For there can be no
"
Society, where there is no Exchanging ; nor Exchanging, where there is no Equality ; nor Equality, but where things arc com-
" menfurable. '
Max"- Moral. 1. i. c.
34.
Rhet. 1. i. c. 16.
"
Money is, as it were, the Rate of the Worth of other
"
things ; and therefore all other tilings are procur.ible by it.
"
^
Which, why it is efteemed the moft noble, may be feen
in Pli/i- Nat. Hill. I. xxxiii. c. 3. about the end.
^
Vid. etiam 1. xxxiv. c. 14. Plin. Nat. Hi/l. & Liician. in Charm;.
p. 350.
Edit.
Amfl.
where Iron is preferr'd to Gold.
'
Add. Philofl. in Fita Apolknii Tyan. 1. ii. c.
3.
^ Vid-
Polyaen. Strata^, lib. iii. c. lo. n. i . oi Timotheus M\A liemetrius. Seneca de Benefais, lib. v. c. 14. at the end.
''
hi Leo
Afric. lib. \'i.
Mr. Bar b.
M
TE S, en . xii.
'
The Rwian Lawyers have well difcover'd the Original and firft Eftablifliment of Money, faying, Origo emendh vendendique a
fermutationibus ccspit. Oliiit enim non ita erat ivmmus, neque aliud mcrx, neque aliud pretium vocabatur ; fed
unufquifque fecundum
tieceffttatem tcmportim, ac reriim, lUilibm inutilia pcrm:i!abat, quando plerumque evenit, ut quod alteri fuperefl,
aheri dejit ; fed
quia
non Jemper, nerfacile concurrehat, ut cum tu haberes quod ego defiderarem, invicem haberem quod tu accipere velles, eleSla materia eft,
tujIts publica is" perpetua leflimatio difficullatibus pcrnritationum, tequalitate quanlitatis ful/veniret ; eaque materia forma publica pcr-
cuffa, ufum dominiumque, non tarn ex fihflantia pr^bet, quam ex q:iantitate ; nee ultra merx utrtimque, fed
alteram pretium vocatar.
Digeft. 1. xviii. tit. i. De contrahendi emptione, frV. leg. i.
* Thefe Paffages our Author quotes at large, but without any great Neceffity-
*
The Greek of this Paflage is, 'Ets< Se o'lmSotio; tAs.'ovo? aSiau Tiiier ri clvtH e^Vov, ^ 6 amTe\ii, til vfv 'Ipyov avTMuraWaTTisiai,
K3ti rZ ixuTtT xpo; tou oi.to5ofjiov, a;v9' uicSijfiaTay
5'
Bn ^v oUiav Hnlii'u, tvTavB^i vjSi ti/ofi-cr^v
rxura xxvra ui/vitj:. k^i ti dp>ui)iov rpaca.-
Vopti/cravT{ v6ii.iey.x, ts'tuj Xfv.'iHi, xdi TfJc rijv i'av 'Ua:;ov iKXz^ J.Sovrai, rtjv ah^aiiv Ts'tt^Saj T?' aAAi^^wi', koi tsVu t^k xoHirm^iv
fiivuvSav cuvliyiiv.
o o o
America,
468 Of
PRICE. Book
Vi
America, a certain fort of Sea-ftiell is in Ufe, in-
fltad of Money. The Apalachites, a People of Fio-
ridd ^
, life certain black and white Grair.s for Mo-
nty. The (mall Money of the Province ot Canidu
are Lumps of Salt
'' , which are alfo current among
the Abyffides
-
.
Tho' certainly fiich fort of Money
is capable of carrying-on biic a very imall Trade.
In the, Kingdom of Siam the great Money is Sil-
ver, the Imall a certain fort of Shell
''
.
And here,
by the way, we may obfetve, that in Co-.igb they
li ok upon Iron to be a nobler Metal than Gold,
or Sliver, becaufe thefe are of little Uie, whereas
that alfords molt convenient Inftrumenrs for the
Service of Life. Among the Ethinfnm Brafs was
the moft Icarce and precious Metal
"^
. And in-
deed, laying afide the Ufe of Money, Mankind
could better be without Gold and Silver, than
without Iron
'
. The Peruvicvti
^
thought them-
felves happy that the Europeans help'd them to Iron
Inftrurr.ents. And one of rheir Grandees could
not enough admire a Pair of Sciifars brought over
by the Spaniards, faying, Had the Spaniards broiigiA
natliing
elfi
but Raz,ors, Sajfars, Ci.7r.bs, and LooLing-
glajfet, it ivould have eafily obligd them to give ail
their Gold and Silver in Return. For before that
they fhaved themfelves with Knives of Stone, not
without great Pain. As for their Gold, and Sil-
ver, and Jewels, they gave them their King, r:0t
as Tribute, but as a Gitt ?. In a certain Coun-
try of Arabia they barter'd an equal Weight of
Gold and Silver for Iron ;
for tliey abounded in
the fomier Metals, and wanted the latter
". Here-
tofore thefe Metals us'd to pals by VVeiglit
'
;
in-
fomuch that ftill, among fome Nations, the Mo-
ney is denominated from the Names of Weight.
But that growing inconvenient, it became cullcm-
ary every vvhire for the feveral Princes of each
Nation to coin Money of a certain Size
-
, and
to {lamp it with a certain Mark to determire its
Value. Alexis Severus gave Order, That the Pieces
of
M:m.7y af fduo, three, four,
and ten Pounds JVeight,
up to thfe of fifty,
and an hundred, which Helioga-
balus had coin'd,
fiould
be melted down, and no longer
pafs in Payment
;
and that for the future the ALney
Jhould be dtnominated
fom
the Qjiautity
of
the Aletal.
For he obferved, that the Emperor was at a greater
Expence in Largejfes, by being under a
neceffity of giv-
ing avjay ten Shillings, nay,
frnetimes thirty,
fifty,
or a hiindyed in a
fingle
Piece, b-.cauje he had not a
Juficient Stock
of
fmalier Pieces to dijhibute.
Lamp.
c. xxxix.
XIV. But akho' the Value of Gold, and Sil-
ver, and Money depend upon the Agreement
of
Men
;
yet rlie iupremc MagiArate has not a Pow-
er at large uf determining it, as he thinks fit, but
mull have regard to fome certain Conlideration?.
And ^i\:i\, all Nations, that we know of, agree
that Brafs is lefs worth than Silver, and Silver
than Gold, and that Silver bears fuch a certain
Proportion to Gold
^.
Again, Money is not de-
liga'd for the Conveniency of Commerce between
Natives only, but alfo between them and Foieign-
ers. And therefore, if the Magiftratefhould rail'e
the Money extravagantly, he would render it ufe-
lefs in our Traffick with Foreigners. Indeed, a-
mong Subjects of the fame Nation
'
,
Neither the
Banker, mr ti:e Farmer can refiife the King's Money
;
but whether they like it cr no, mu/i take it in Payment.
But between us and Foreigners, fliould not the
Q_;antity and Goodnefs of the Metal be fo ad-
jullcd, as to render our Money, at leaf!:, as good
as that of the Country with which we traffick, it
would be a great Clog and Hindrance to Mer-
chandife, and would reduce us again to the Ne-
ceflicy of Bartering ; which, of itfelf, would not
be fufficient to carry on Trade, unlefs we export
as much or more than we import ; and Foreigners
iland in need of our Commodities, and we not of
theirs
'".
And becaufe, where our Eflate lies in
Moveables, it chiefly coniills in Money, it muft
apparently be much lelleu'd, when that admits of
fo much Alloy, as to difcover its own Bafenefs in
its Looks.
^
Polyanus
'^
relates of Leucon, that he
commanded all his Subjects to bring in their Mo-
'
Concerning ivhich, VideRnchffurt. Defiript.
Antillarurn Infill.
Pitrt II. c viii. n. 8.
''
As Vauloi Vennc leLites, 1. ii. c. 38.
'^'
franc. Alvarez- c. xlvi.
''
Vid. jod. Schotiteit, in Dcfcript. Regn. Siam. Add. Polydor. Virgil De Invent, rer. 1. ii. c. zo.
Alexand. Neapol. I. iv. c. 15. Budeu! ad\-\- D- De contrah. empt.
'
Herodotus Tha'lia conctrnrnglh^ Ethiopians.
'
Gareil.iJ. Comment. Reg. 1. i. 21
.
8 IJem, ihid. 1. v. c. 7. Add. Th. Mor. Utopia, 1. ii. "
Diodir. Sie. 1. iii. c.
4;.
Add. Strab. I. .xvi.
"
Iron is therefore faid to be better than Gold, becaufe this is defended by that.
"
Lueian. in Charron. d. 1. And
Vlin. Nat.
Hift.
1. xxxiv. c.
1
4.
'
Vid. Plin. 1. xxxiii. c.
3.
'' "
If for h.ilf a Pound of Goid a Man receives a doublf
"
Proportion of Silver, he receives only a double, whereas he ought to receive a twelfth Proportion. Vlat. inHippnrcho, p. 514. C
"
Ed. Weeh. In the League that the Romans made with the jEtolii^ns, they were to give one Pound of Gold for ten of Silver.
"
Pohb. excerp. leg. 1. xviii. 5. Add. Bod. De Rep. 1. vi. c. 3. p. 1071, fsfr.
' That of Arrinn takes place, Difert. Epift.
1. iii. c.
7.
"
\"\A. Polyb. 1. vi. c. 47.
about the End.
'
Lib. vie. 9. Add. Bodin. Dc Rep- 1. vi. c.3. Greg- TholafiiH.
Syntag. jiirif. univerf. 1. xxxvi. c. 2
Mr. Bari'.. NOTES on . xm, xiv.
'
Sec Mr Lieie's Philofophical EJfay
upon Human Xjhder/landiug, 1. iv. c. 12-
i
ii-
*
From whence that of Juvenal, Sat. xiv. ver. 29
1
.
.
Concifum argentum in titulos, fmiefque
ininutas.
'
To avoid the Cheat of filfe Money, it ought'not only to be mixed with a good Alloy, but fo curioufly wrought, that the La-
bour, joined with the intrinfick Value of every Piece, Ihould make it worth more th.m it commonly goes for. This is Mr. Ber-
nard\ judicious Reflection, m.idc by him in his Nezos from the Rep.illiik
of
Letters, Mar. 1704.
But \vhen ftlfe Money creeps
into the publick Commerce, private Pcrfons ought not to bear it, but the State ought to take it at t)ie Weight which they received it.
Our Author commends the Jullice of the Senate of Venice in this Cafe ; and we have h.id as great an Inftance lately of it in England.
Under the Reign of King William III. the Money was in fuch a bad Condition, becaufe it had been fo much dipt in the foregoing
Reigns, in which there was no Care taken to prevent it, that it was diminilh'd above a third Part of the true Weight. This made.
Men believe that tlicy had more than they had; for thn' the Money had not been lefJ'en'd by publick .Authority, yet in Commerce
the Value was one third Part lefs th.in it went for, which ruin'd Trade in many refpcdf s. Mr. Locke took notice of this Abuic, and
foretold. That in a little time, if fome Remedy were not taken, England would want Money to buy Bread, which happen'd in
1695,
infomuch that the Parliament was obliged to amend it in the Beginning of the next Year. That great Philofopher was one
of thole who helped to make it appear, that there was no other way to fave the Commerce of England, but to coin the Money
anew at the publick Charge, without diniinidiing the Price. Whereupon the Parliament following the Advice of this great Man,
given them in two fmall Works,
"
Made, in the midll of a terrible War, a Reformation of the Coin, wluch many States would
'
have been afraid to attempt in Peace. Some Kingdoms would have rais'd and lower'd the Money, only to have brought the
"
We.dt'i of private Men into the Prince's Treafury, not regarding what Lois the People had by it : But tjie Maxims of the EngHfo
'
Gove.nmcnt will permit no iuch thing.
"
Mr. Clerc'i Biblioti}. Choiji, Tom. vi.
p. 384,
&c.
ney
Cr^AP.
L
Of
PRICE.
46^
nev
to have it new coined
;
and, when he had
coiii'd it, he order'd every Piece to go tor double
;
and fo gain'd halt of the Money, wichouc doing
Wrong to his People. Indeed, fucli a thing as this
may
admic ot" fome Excnfe, in cale of NeccfTicy,
if remedied
when that is over. Bur what Zonaras
and others teil ot Ntc. Phocis, cannot be palliated :
For he
having coin'd a Qiiantity of ligiit Money,
belides the weighty that was cnrrenc, woukl re-
ceive none bnc the weighty into his Treafury, bnc
made all his Payments in the light
^
. Some Le-
giilators indeed have taken this Courfe, to extir-
pate Covetonfnets, Luxury, and luch Vices, by in-
troducing ball- Money. Lycurgus cyy'd duivn all tie
Gold and Siher
of
Sparta, and a/towed nothing to pi'fs
but Iron, having ajjignd a fmall Price to a vaji IVeight
and Bulk of
it
; Jo
that 10 1. lUini'd take up a large
Room, and ycquire a Teem
of
Oxen to bring it kmie.
By this Means he utterly rooted out feveral Jurts of Vd-
Inny. Fr tcho would jlsal, or cheat, or receive a
Bribe ivhti:h could not be concealed, and zvhich no Man
u'rtj- the better for
having in his
I'lJJ.-jJi'n, Jtnce
it
could not be applied to any ether
Ufe ? For, they
fay,
he
jnade all the Iron red hut, and quenched it m Vinegar,
which, h that means, became brittle, and good jor no-
thing. By tiiefame Methods were all idle fupeil^ii-
ous Arts rooted out, when nothing could be got
by them : For tlie Iron Money not paffing in
Greece, none of the foreign Delicacies could be im-
ported from thence into ^^Ortjfi?, which cut the very
Nerves and Sinews ot Luxury. Lyfinder
'^
brought
back Gold and Silver into Sparta, and with them
Avarice. Indeed, among other Nations too, Co-
vetoufnefs crept in with tlie lite of Money. For
as long as their Riches conliflcd in Corn, Cattle,
and fuch like, the Cumberfomenefs ot their Goods,
together wicli the Difficulty ot managing and pre-
ferving that which was io liable to Corruption,
was fure at length to put a Ifop to their boundlefs
Defire of increaling their Store. But now, fince
the Ufe ot Gold and Silver has been found our, a
covetous Man may embrace his Millions. Plato
^
in his Commonwealth, to take otf his Snbjeds
from too greaf a 'i'hirlf atter Lucre, commanded.
That no private Man jbuuld have any Gold or Silver :
That the Money -which the Subjeth make
ufe of, JhMld
ie fuch as pajjes no -where elje. But yet that the Pub-
lick fkould have in Ppffcjfion fome of
the current Money
of
Greece, in cafe they jhould have an Occafwn of
waging PVar,
of
Travelling, or
of fnding an
Embaffy
:
That Traveller^, at their Return home, jhould pay into
the Publick all the joreign Money they bring -with them,
and receive that
of their own Country
for it. The
Great Cham at Cnmbalu
put his royal Stamp up-
on a vaft Sum of Money maue of tiie Bark of
Mulberry-Trees, wnich
no Man in his Dominion.s,
upon pain of Death,
dared to refufc, or to coin
and ule other
=
.
Ihe
Foreigners too, who traded
into thoie Parts for the Gold, Silver, and the
Jew-
els which they imported, were forced to take that
Money, which they converted into the Commodi-
ties ot the Country, and fo exported again. By
which means that Prince heaped up a p^rodigions
Quantity of Gold and Silver. The Perfuws call
the Leatiicr-Money, which an upjulf King had im-
pofed upon them, Shehreva,
i.e. Money iiripofcd on
the Subjert at the Pleafure of the Prince. The
Memory ot which has made fuch an Imprefliou
upon them, tiiat when they would denote the In-
jullice of any King, they exprefs it by faying. He
impifcs Leather-Maiey iipji Us People
*
. On tne o-
tiicr hand, the Care that the Venetian Senate took
of their Subjects is much to be commended : For
when the fmall Money had been debafed, and a
vail Quantity of it crept in among them, that Ca-
lamity not being removeable any other w.iy, the
Senate made a Decree, That wholbever within fuCh
a time fiiould bring in their bad Money, fliould
have it exchang'd lor good. Upon which account,
above five hundred thoufand Crowns were disburf-
ed out of tlie Treafury
s.
XV. But lince Money is the common Mcaftu-e of
the Value of other things, its Vali e ought by no
means to be altered, but where the Intereft of the
Publick dees evidently require it. And then toe,
'
the more moderate the Alteration is, the Icfs will
the Peoples Accompts be confounded. And there-
fore fucii a fort of Matter was chofen for the car-
rying on of Commerce, the publick and unaltera-
ble Value cf which, conltantly applied to the
fame Qiiantity, might be able to relieve and fnp-
ply all the Inconveniences that were found in fim-
ple Barter''. But yet, as to the unchange.ible
Value of the Money, we mufl: obferve what Gro-
tius
'
afl'erts. That the Currency
of
Money is not na-
turally derived from the Matter only, nor )et from this
or that particular Form and Denomination
; but from
its Capaci
y of
being cmnpar'd with ail other things, or
at leaji all thofe that are mo/l nccefjary. The Mean-
ing of which Place is, that it does not proceed
from
'
the Matter
^
of the Money only, v.
g.
its
being Gold or Silver, that a certain Piece goes pro
hie
C7
nunc, tor fo much, and is equivalent to fuch
a Commodity (for the Currency of Money does
not only depend upon one Piece's being equivalent
to another of the fame Quantity and Quality, lor
^
J.iJ.
Jo.
Mariaiui, Hijl. Hi/pan. 1. xv. c.
9.
^
Plutarch, in Lycurg. p. 4.4, 45. Ed. Week
"^
Vid. eund. in Lyfandr.
"
De Legiius, 1.
5. p.
4S. = See M. Pad o( Fin. 1. ii. c. 21. G. Gen'.iui ad Sadi Rofarium Perficum, c. iii. Md.
Bitcharian. HiQ. Scot. 1. xii.
p. 450.
s
Andr. M.iurocenus Hijl. Feiiet. 1. xiv. p. 641 . Wc may'obi'erve out of/'//;;. Nut. Hift.
l.vi. c. 22. " Th.u the King of 7i/r.W<'/ very much admired che Jufticc of the /J^.OT//;, in that the Z)^;?^r;/, which he had taken,
" \verc all of equal Weight, whereas the St.nmp made it appear that they had been coined at different times.
"
Vid. Si/hn. c. Ixvi.
^ Vid. lib. xviii. t. 1. I. i. D- De contrah. Emp.
'
B. ii. c. 12. f 17.
'^
Fid. irg. uai fuprii.
Mr. Barb. NQ TES on
. xv.
Seethe End of the foregoing Note. Mr. .tt-;-//.w alfo quote? here the Hifloryof Mr. Thuanui, lib. viii. in the Year
1551,
about
the End; and lib. c.vxix. in the Year 1602. DeRdde, Annnl. Be'g. \. v. in i
586.' and GrotiinH Hill. Be'.g. lib. v. in the Ycari
J95.
Thii is not the Senl'e ot Grotliis : But this great Man means, as Groncz'ius e.xplains him, andasit will appear cafily by attend-
ing to his Words, and the Sequel of his Difcourle, That if Afoney be capable of an Equivalent, 'tii not only bccaufc we may give
Dollars, for Example, for Piltoles, or Pieces of fifteen or thirty Soufts for Dollars, but becaufc we may give Money for Corn, Wine,
i^i. lor, lays he, we mull pay, iinlefs we have otherwife agreed, for Things as much as they are vvorth at the Time and Place
of
Payment, ^ca
eeftimutio,
fi
aliud imi convenerit, facienda erit tempore y kco fdutionii. 'Tis another thing to fay, that if we
mull have regard in exchange to the intrinfick or extrinfick Value of the Species, it happens at the Beginning of tiie Debt : This
Qijeflion fhall be handled a little lower, ch. vii. . 6, 7. The Author doth not fpeaic here, at le.ill direclly, of the Wlue of Money,
with
refpeft to the Rarenefs or Abundance of other things. He fpeaks only of it in f^ort, at the End of the Paragnph, when f.c
explains the Words of Michael of Epkefm, a Cgmincntatgr on AriiUtlc.
all
470
Of
P R IC E. B OOK
V.
all coi'fitninbh Commodities are fuch) but upon its
containing virtually the Prices cf any thing elfe
;
nor
trom any particular Denomination, as that it
is ca'il'd a Ducar, Crown, Dollar, or Florin ;
nor
Iroin its having inch a certain Stamp
''
; but from
its Capacity ot being compared, inrefpect of Plen-
ty or Scarcity, with other things, efpecially thofe
that afford the more necefiary Supports of human
Lite. Now Land- does this ; for from it, medi-
ately or immediately, proceed mofl: things that hu-
man Life fubfiits on. And the Product of it be-
ing one Year with another pretty equal, it may be
prcfum'd to have its natural Value fix'd and cer-
tain, to which the Prices of other things, at leaft
of fuch as have not received their Value from the
Luxury
or Folly of Man, are referr'd, as to a
Standard.
For 'tis very reafonable, that the Prices
of fuch things as are the Produft of Land, or are
maintain'd by it, fhould be regulated by the Price
of the Land itfelt. Since therefore the Land every
where is in private Hands (moft Mens Elfates be-
ing now in Land) the Value of Money muft needs
rife or fall, according as it is fcarce or plenritut,
in
proportion to Land. For every civilized Nation
confifting chiefly of two forts of Men, the Farmer,
and the iradejman or Labourer, if, in a great Plen-
ty of Money, Land and its Prodr,6: fliould fell
cheap,
it muft needs break the Fa-mer
; and on the
other hand (hould Money be fcarce, and Land and
its Product dear, it muft needs beggar the Tradef-
vian. Which in Faft we find true ; for when a
plentiful Harveft makes Corn cheap, if the Work
of the Trad^fman, and thofe that earn their Living
by
their Labour, ftand at the fame rate as in fruit-
ful Years, the Farmer is found to get little by his
plentiful Crop. And the fame Inconvenience pref-
ixes the Trradejman and Labourer when Corn is dear,
if ifill their Labour keeps its old Price. Since
therefore,
in indifferent Years, the Commerce be-
tween the L..^)re)- and the Fartner is beft adjufted,
and there is then lenlt Complaint between them
;
it is evident, that in fixing the Price ot Money the
greateft Regard ought tu be had to Land, efpeci-
ally
where the Country does not iubfift upon Mer-
chandife only, but chiefly upon its own Produce.
XVL
From what has been faid, we may judge,
whether a Farm, that was rated at a hundred
Pounds two hundred Years ago, ought nor, cateris
paribus, to be rated more now ;
and whether the
Wages, that were large enough then, are not in all
Realon a little too fcanty now. For it will not
fufEce to fay, that the Pieces of Money have the
fame Weight, Goodncfs, Name, and Shape, which
they had formerly
; but we muft confider, that
within this two hundred Years fuch a vaft quan-
tity of Gold and Silver has been imported into
Europe from Africa and the Indies, not to mentio^j
the many Silver Mines of Europe itfelf, that the
Value of Money has, by degrees, funk ver^^uch
;
infomuch that (as Bodinus
*"
obferves) Commodities
bear ren times the Price they did formerly
'
, by rca-
fon ot the Plenty ot Gold and Silver. And there-
fore the old Price of Land and Wages ought to
rife, ceteris paribus, in the fame Proportion
'
. For
fuppofe Commerce to be carried on by pure Barter
in any Country which affords \ery litcie Wine, but
Abundance oi Corn
; here, for a fmall Parcel of
Wine, v.'e fhal! receive a great deal ot Corn ; but
if, by good Management, the Vineyards flrould
happen to produce a larger Vintage, without
doubt, for the fame Quanrity of Corn, we muft
give a greater Proportion of Wine than formerly.
In like manner, when Money is fcirce in Compa-
rilon of other things, a great many things wiil be
purchas'd with a little Money; but Money, on the
other hand, incrcafuig, more of it muft be given
for the fame things. For (ince the Metal, as to its
natural Price, may be, and often is brought into
Commetce as well as otiier Commodities, its Va-
lue muft rife and fall according to the Scarcity or
Plenty of it. And the eminent Price of Money
muft neceilarily tollow the natural Price of the Me-
tal : For it is unreafonable, that a Qiianticy of
Silver, confider'd as a Commodity, fliould bear a
very dift'erent Price from what it dees when con-
fider'd as Money. For fo the fame thing, con-
fider'd as its own Meafure, would be greater
or lefs than itfelf, confider'd as the thing mea-
fured. And this is the Reafon why, when the
Prices of atmoft every thing elfe have been altered
by reafon of the Plenty ot Money, Gold and Sil-
ver have ftill kept their old Price, an Ounce of
Silver being worth a Crown now, as well as for-
merly. For if the Price of Bullion, like rhe Prices
of other things, had been v.
g. quadrupled, an
Ounce of Silver now would coft four Crowns, fo
that little would be got by coining Money.
When therefore the Puce of a thing happens to
bechanced, we muft caretully di/tinguifh, whether
that Change be made in the Value ot the thing, or
in the Value of Money. The former happens,
when the Plenty of Money ftanding as it was, the
Commodity begins to be more plentiful, or fcarce,
than ufual ; the latter, when the Commodity re-
maining as ufual, the Plenty of Money has in-
creas'd, or decreas'd. Thus, when in a plentiful
Scafon I can buy a Bufhel of Wheat tor one Crown,
which in a Dearth I cannot have under three
;
tlie Reafon is, becaufe the Value of Wheat, and
not of Money is changed ; but when a Farm now"
lets for two hundred Pounds, which an Age ago
let but for an hundred ; the Value, not of the
Farm, bur of the Money, is altered
"^
. But alrho'
Money admits of vaft Changes, and a cominon
Meafure ought to be fixed and unalterable, Mo-
ney neverthelefs is capable of being made a com-
mon Meafure. For this Coange in Kleney is never
>
Vid. 1. i. D-
Decontrah. Empt. tibifupra,
"
Money is of Ufe, not fo much for its Subftance, as its Quantity.
"
Alfo 1. xlvi. t. 3.
1.
94.
f. I D- De Solution-
"
In Money the Species is not fo much confider'd as the Quantity.
''
Dc Rep. 1. vi. c. 2. p. m. ioz8-
"^
/Idd- Vnl. Max- 1. iv. c. 3. f. 12.
* "
Tlie royal Treai'ure being brought into the City .it tlie AUxandriitn Triumph, cauf-
"
ed fuch a Plenty of Money, that the Intereft of it finking very much [Orofius
lays Half in Half) the Price of Land v/as rais'd.
"
Sueton- A:igujl. 42. Add. Jofeph. De Bello Judaico, 1. vi. c. 32. Fram. Lopez, de Gomora, Hijt. Ge/t. Ind. c. 1 17.
Mr. Bare. NoTES on. .
xvi.
'
Mr. Hcrlius quotes a Dutch Hiftorian, who relates, that the City of Arnheim gave a fplendid Entertainment to a Duke csU'd
Arnaldus, with his Dutchcfs, and an hundred and fixty fix of his Retinue, at no greater Expence than fifty ieven Dollars of that
Country Money.
Jo- Ifaac
Por.tnmn, in his Hijl.
of
Geldeil. 1. ix. Hence it comes alfo, th^r there are Places of publick Employ-
ments which have fuch fmall Revenues. Salaries alfo remain in the fame State that they were appointed two or three hundred Yeari
iSTo, not confidering that a thoufmd Dollars now arc of little more Value than an hundred were then.
fo
Chap. II. Of
ContraBs in
general,
&c.
471
fo fudden, as in other things, which depend ve- is leflen'd by fuch
infenfible
Degrees, that we do
ry
much upon the Uncertainties of the Weather, not perceive it, while it
decreafes,
bur, altera iong
Storms, and other Cafualties
j
but the Value of it time, find thuc it hasdecreas'd
\
*
Add. Jac.
Godofrcdi DiJJert. De mutatione ff mutations tif augmento Monette aurece.
CHAP. II.
OfContraBs
ingeneral, that
prejtippofe the Price
of
Things.
I. l" e Diffevence l>et'a:eeit Bargains and Contracls^
, acioaiing to Mr. Hobbes.
II. According tu the Interpreters
of
the Roman Lam.
III. Some A.'Vice iaboiit -what they have delivered,
IV. Our Opinion about the Difference.
V. Contratis are divided into Juch as oblige
; 1 . One
Party only ; and 2. fuch as oblige both Pa; ties.
VI. And into real,
of bare Omfent, verbal, and in
IVriting.
VII. In fvnie particular Mime, and wiihcut a
Name.
vni. Beneficial and chargeable.
IX. Hovj many forts of
chargeable Contr.t^s.
X.
Of
mix'd Contratis.
WE
come now to treat of fuch Contrafts as
preluppofe Property and Price. And firft,
We will enquire into the Diftercnce between fimple
PaEls, and ComraBs. Hobbes
"
defines a Contrafl:
to be the AElion
of
two, cr tnore, making over their
Right to one another. But fhice in every Contract ei-
ther b th Parties perform their Bargain upon the Spot,
fo
as neither trufls tiie other
; or one performs, and t/je
other is trufied ; or neither performs, but each trufis the
ether : To tlie tirft of thefe only he gives the gene-
ral Name of ContraEi. The other two forts, where
either one or both Parties are trui^ed, he calls
Pacts. But this DifFirence does not concern the
intrinfick Nature of ContraBs and PaBs, but re-
gards the Execution ot them only : And 'tis a-
gainft common Senfe, that a Silc, v.
g.
where the
Goods are deliver'd for ready Money, fliould be
cail'd only a PaEt.
IT. The Roman Lawyers almofi: all agree in mak-
ing Pact the general Term which comprehends all
the Affairs, wherein Men are concerned with one
another, and they define it in general to be '
, T/jg
Agreement
of
tiuu or more in tlie fame thing. Then
they divide PaSl into Pact properly
fo
cali'J, and
Contract : The former is, when the Objeft is fome
Matter
of
no Confcqiience, and, in its oivn Nature,
'
incapable
of
bearing an Action in the civil Court.
This they again divide into /tmpk Pad, and not
fimple ; which latter they again (ubdivice inro ^le-
gal and additional. They fay farther. That an
Agreement may become more than a finple Pact,
either by its own intrinfick Nature, or by the ex-
ternal Confirmation of the Law ; for it is that that
properly renders Agreements legal PaBs. Moreo-
ver, they teil us, that tiiis intrinlick Natu e may
be of two forts, for fome do not retain tiie gene-
ral Name of Agreements, but are calTd by iome
*
particular Name of Contraft ; others, akiio' of
no particular Denomination or Form, yet exceed
the Limits oi fimple Pact, by having a Maacr of
^
Confequence for the Ol-jec^t of them, as the Per-
formance of a Promife, the Delivery of Goods, or
*
De Give, c. 2. f-
9.
Mr. Barb. NoTES on Chap. II.
i.
F.ielinn autem a paiione dicitur Et ejl PaBio duorum, plariumve in idem placitum anfenfus. Convtntisnis verbinn gene-
r/ile efl, ad umnia pertinens, de qutbus negotii contrahendi tranfigendive caufa confentiunt, qui inter
ft
agunt. Digeft. 1. ii. tit. i ^. De
P.iftis, 1. I. . I, 2, 3. Cuj.icius's Oblerv. 1. ii. c. i;.
*
Nee ol/ejfe tibi poterit, quod did
filet. ExpaBo ahif.iem non nafci. Cod. lib. ii. tit.
3. De Paftis, leg. ic. Nam
ft
conventio,
placiti
fine
jiitit, ex mido paBo perfpicis actionem fire noflro nafci iion pojfe.
Lib. iv. tit. 6:;. De Locate & Conducto, leg. 27. But
fimple Conventions alw.iys afford a valid Exception, as our Author obferves in the next Paragraph ; I mean, That when a Umple
Promife is made to any one, to require nothing of him, or not to fue him at Law, which might rightly be done, if, after that wc
lay an Aftion upon him, we have debarred ourfelves immediately of our Adiion, altho' the Agreement was not confirmed by an
Engagement in Form, and the Plaintiff h.is done nothing on his Part to free himfelt from it. Sed cum pactum conventum exceptio-
Ttem perpetiiiihi pariat, &c. Digeil. 1. xx. tit. 6- ^ibus modit pignus, vel Hypotbeca fohitur, leg.
5.
princip. Igitur uuda paBio
ebligationem non parit, fed
parit exceptionem. lib. ii. tit. 14. De Paftis, leg.
7. .4. Si pacifcar ne pro judicati, vel incesfarum
tedium agatur, hoc pactum valet. Nam 3" d furto pacifci lex permittit. Sed l^
fi
quis pacifcatur, ne depo/iti agat, fecundum
Pomponium, valet paBu.iti. Ibid.
.13, 14, ij- iQucedam aSiiones per paBum ipj'o jure tolluntur : ut injuriarum, item furti. De
pignore jure honorario rmfcitur paSo^ailie, toUitur autem per exceptioneni, quotiens pacifcor. Ne Petam. leg 17. . i, 2. Sec alfo
leg. 27.
4. In tWs there is much Inconfiftency : for why fhoulda fimple Contraft be of force to hinder us from obtaining what
we might otherwife Luvfiilly fue for, more than gi\e a Right to lue for any thing ? That which can difcharge an Obligation, is
it not cap.ibk of producing a new one ?
'
Ubi obiter vijuendum cordatiorei reSle ab[linere a vocabulo Padorum veftitorum. Non enim quia dicitur, e. g.
ex nuda gratia,- ex
jtuda bencz'o/c.'.'tia, etitim diccndum fuerit ex gratia vejlita.
+ A-i that of Sale, Hire, Society, Loan, Pledge, ksjc. Conventions, qua pariunt aBiones, in fuo
nomine nonflant, fed tranfemit
ir propriurn nomen contraSIus, ut emptto, venditio, hcaiio, conduitlo, focietas, commodatum, depojitum, y
cateris fimiks contraBui.
Digeft. 1. ii. t. 14. De Paftis, 1. 7. . i. See . 7. Following.
^
Sed
fi
in alium contraBum res non tranfeat,
fubfit
tamen caufa, ekganter Ariflo Celfo
refpondit, ejfe
obligationem, ut puta,
_
Dedi
tibi rem, ut aliam mihi dares, dedi, ut aliquid facia', hoc tfv/i/.Aayuir, i. e. contraBum ejjf, 13 hiitc nafci civilcm obligationem.
IbiJ. ^. 2.
the
472
Of
ContraEls in general. Book
Vi
the doing of Work ; and thefe are properly Cvn- and fuch as are negative. The Force of negrttire
tracts, which by their own Force erfectually obiigc,
Pacis (where the Agreement is, not to demand) is
and vvhicn
^
in Juftice and Equity bear an Aaion.
both in the Natural and Civil Law not to be pro-
Yet they add, that ^jJmple Pacis nr.ay be aaiona-
dudive of, but to exempt from an Action
''
: -Foi-
ble, by Confent of the Parties ; and PaHs added fince they are defigned in favour of the Debtor- that
to fuch
*
ontrafts as admit of Equity, partake
nothing may be demanded of hiro, they can be cf
of the Nature and Force of Co!itr..6ts.
lo other Ulc, than to keep cff the Demand of the
III. But fince Pa^s are not, in their own Na- Creditor, /. e. to exempt from an Adion. But as
tue, actionable in the civit Court, and 'tis our i'oT
fimpje affi.mative Pacii, th^y do not warn in them-
Bufmcis to explain the Force they have in their felves a Power of Obliging 5
. But the Rcafon why
own Nature, we can't thefore follow this Divifion the Roman Law did not make them adionable, was,
lo clofely. For 'tis evident, that the Law may de- to prevent a vaif Multitude ot Law Suits
i
eipecial-
ny Agreements, even in Matters of Confequence, ly confidering that fome of thefe Pa^s proceeded
an Action in the civil Court
'.
To this Purpofe, from Unadvilldnefs (for elfe they might have been
(a}s ^t}\ih, l.xv. p.
488. in the Beg.nning, nTru/i made in Form of Law) and others were of no CJfe,
of
Charge cauwt be recovered by Law ; IVnnejfes and as tending to no Confequence, when put in Execu-
i>eah fignify
iwtUng, fur
'tis but a bare T'ruji.
*
Sen. tion. That this is the Signific.uion of the Word
dc Bentf. 1. iii. c. ly. wifhes, T'hat no Dtbts had the Cauja, fo otten made life ot by ti.e Civilians, is
enefa of
the Law, but were left entirely to depend en plain from Plaut. A/war. Aft. iii. Seen. 1. \er.
17.
the H
nefty of
tie Party
'
. But as to what tlic Ro- Sola ego in cajleria + ubi qiiiefco omnia famlia cau-
vian Law fays, thn fimple
Pa^s admit of no Aftioii, fa cotififlit, i. e. omne emrlumemum qmd ex familia
we muft diflinguifli between fuch as are affirmative,
capis. Thus, if any fliouid agree, not to wafh their
Hands,
^
To underftand this, we oyght to read what the Author fays a little lower of mixt Contradls. See Vinnius on the
Inftitutes,
1. iii. t.
15. ^. 2. num. 2.
J
In a Stipulation one of the Contralors mull demand, and the other anfwcr pontivcly, after this manner : Doft thou pro-
mife to give me, or do fuch or fuch a thing for me ? Yea, I do promile it. Vcrbss Obligatio contr.ihitur ex interrogatione tf
rejponf.one, cum quix' dari Jierive nobis ftipulamur.
//; hac re olim talia verba tradita fuerunt, Spondes? Spondeo.
Promittis* Promitto. Fide jubes ? Fide jubeo. Dabis ? Dabo. Fades? Fuciam. Inftitut. lib. iii. t. 16. Z);? wr-
borum obligationibus, princip.
Obligntionum qiite ex ccntraSlufunt, quatnor funt fpecies. Aut enim re contrahuntur, aut verbis, aut Uteris, aut confenfu. In-
Aitut. 1. iii. t. 14. DeObiigat. . 2.
^
Re enim non
poteft
obligatio contrahi,
nifi
quatenus datum
fit,
Digeft. 1. ii. t. 14. De Paciis, 1. 17- in princip. See t. ir. of
lib. iii. of the
Inftitutes, ^/ibus modis re contrahitur Obligatio.
^ Such are the Contracts of Selling, Hiring, Society, and Commiffion.
Confenfu fiunt
obligationes in emptionibus,
'jenditionibus,
conduaionibu!,
focietatibus, mandatis. Ideo autcm iftis modis obligatio dicitur confenfu contrahi, quia ncque fcriptura, neque prajentia
emiiimodo opus
eft.
At nee dari quicquam necejfe
eft,
ut fibftantiam capiat oMigaii'j, fed fufficit
eos, qui nsgotia gcrujtt,
confentire.
Inllit. 1. Dc Obligationibus ex confenfu.
* See Note
3. upon the ^. aforegoing
Ppp liged
474
Of
ContraBs in general Book
V.
liged by bare Writings
^ '
as much as if he had.
Btit yet, there is good Reafon why thisfhould ob-
tain in the Rijmaa Law : For fines the Magiliratc
cannot be laiishedol: the Truth of a Debt, but by
Iiillrumcnts and other Proofs, when Writings appear
owning the Debt, he muft prefume upon it, till the
contrary be prov'd. Indeed there are no Contracts,
but what may be exprels'd in Writing ;
and this
may be done two ways : for either the Contract
may be made, and the Confent of the Parties de-
clared in Writing ; and, in this cafe, the Contract is
then finidied, when the Writings are in all refpeds
perfeSed ; which obtains chiefly in confenfual, and
fuch fort of Contrads : or elfe the Writing is only an
Evidence of a Contra6t already Hnifhed. Which laft
is to be prefumed, if the cafe be doubtful
^
.
VII. Again, Contrads are divided into
'
named
and
nannlefs. The former fort are thofe, whica by
reafon of their daily Ufe have a particular proper
Name afligned them, expreflive of the Form and
Contents of the Buiinefs ;
and which being men-
tioned,
immediately fignifies what was done (tor
altho' Bartering, which is reckoned amongft the
namekfi Contrads, feems to have a Name, yet 'tis
a general one, and does not txp-efs, wiiether it
be the Contrad of
'
Guods for G^jod--, Buying, Sel-
ling, or any other.) And theretore in the Roman
Law thefe had certain fixed Forms of pioceeding
;
whereas otiieis of lefs frequent Ufe, containing
no more than what was exprefly mentioned,
had
no proper Form of their own, but one
accommo-
dated to the Thing
j
and therefore an Adion,
up-
on Account of thefe was always expreft in a cer-
tain Form of Words ^
VIII. The Divifion of Contrads into
f gainful
and
*
chargeable makes moft for our Purpofc, where-
of the firit brings foine Advantage to oie Party
gratis, as in the Cafe of a Loan, Commilfion,
or
'
Charge. The latter binds both to an equal
Share of the Burthen ; for here we ad, or give,
in order to receive an Equivalent. Upon this feems
to be founded the Dillindion of Contrads into
tliofe that admit of Equity, and thofe that
are
tied up to the Rigour of the Law. In the former
the Magiftrate has Liberty to weigh and eftimate
the thing, according to
^
Equity and Confciencej'
in the latter he is obLgea right or wrong
'
to
proceed according to the flared Forms of Law.
Now Reafon tells us, that chargeable Contracis are
of the former fort, and admit of a more loofe In-
terpretation in the Courts of Equity ; for fince
the Obligation is mutual, neither Party ought to
be over-burthened. But gainful Contracis belong
to the latter, and do not allow of fuch a loofe In-
terpretation, or that any one ihould be bound to
do more than he has exprefly declared j for elfe a
Main's Generofity might prove too great a Biuthen
to him
''.
^
Vid. Inftittit. ubi flip. t. 22.
''
Vid. Grot. 1. ii. c. 16. f.
30- and hereafter in c. 5. f. 2. in
fin.
ibiq. not.
"^
Vid. Grot. 1. iL
c. 12. f. 3.
f
ContraBui beneficus.
* ContraHus oneroj'us.
"
Add. jir/i. Finnius id. {. iS. Injiit.de Aliionibus, 1. iii. t.
4.
Mr. Barb. NOTES on
. vi, vii, viii.
'"
Before Juftlninn, Men might, for
5
Years after the Date of a Note Obligatory, plead and maintain, that he had not re-
ceived the Money or Goodi mentioned ; but that Emperor confined it to two Ye.irs. See Inftit. 1. iii t. 22. De Literariim Obliga-
tionibiis. The Proteftation or Declaration of not receiving, to which the Owner of the Note has recourfe, is called ^/erela, or, Ex-
ceptio non numeraire Pecunirt ; and it belongs to him, of whom it is laid to be received, to prove that he did really receive it. The
Reafon of it was, as it is exprefs'd in the Code, becaufe the Denial of a F..ft is not capable of a Proof ^/i/m inter cum, quifaSlum
adfeverans, onus fubiit probntionis, l^ negantemnnmertit'ionen{ciijusnaturaliratione probalio nulla eji) iff eb hoc aJ Petitorem ejus ret
n'cccjfitattm trar.sfeventem, mngnafit
differentia, 1. iv. t. 30. De non numcrata Pccunia, leg. 10 May we not fay, that 'tis managed as
a Difpute in the Philofophy Schools ? And if we examine the Thing well, i.s it not really the Author of the Note thataffirms and main-
tains the Falfuy of the Faft, of which the other is furnilhed with a Proof, reputed valid, till the contrary appears ? and by virtue of
which this laft ought to be iuppofed to hold to the Negative, and confequently is exempted from Proof, according to the Maxim treated
on ? Farther, as Mr. Hcrtun obferves, 'Tis very rare that any Man puts a Note into the Hands of him to whom it is made, before he
has received the Money or Thing which is acknowledged due by it; and if lie is fo ill-advifed, 'tis his own Fault. It may alfo
happen that the Money may be lent without Witneifcs, and ib the falie Debtor may thereupon think to keep the Goods of the
Creditor; and fo much the more, becaufe the Space allow'd to the firil to maintain that he has not received, and to oblige the
other to prove it, is too long. Upon the whole, it appears, that our Author reprefents the Idea's and Maxims of the Roman Law
very imperfcftly.
'
See ^.2. Note
4,
c. above.
2
As for Example, if wx give a Thing to a certain Perfon to fell for us, upon Condition that he fhall keep to himfelf all that
he gets above a certain Price fet him. This is a Contraft without Name, which yields an Aflion in a Form prefcribed. 'Cumie-
ficiant vulgaria ntque ufttata aRionum nomina, pnefcriptis verbis agendum
eft,
in quam ncccffe
eft
confugere, quotiens contraBus exiftant,
quorum adpellatknes nullie jure civili proJitte funt. Naturaenim rerum conJitumeft, ut plura fint
negotia, quamvocabula
Si tibi
rem vendendam certo pretio dedijfem, ut quo phris vendidiffes, tibi imberes, placet, neque mandati, neque profocio ejfe
aBionem,
fed
infa-
Bum, qunft
alio negotio gefli, Digeft. 1. xix. t. 5. He prafcriptis Verbis, i5fc. leg.
2, 3, 4,
13. princip. Laftly, As to what concerns the
Nature of Contrafts without Name, fee Mr. Titius on Lauterbac/j, Obf. 620.
^ See
Digeft.
1. xix. t. 4. De Rerum permutatione, leg. i. . 2.
'
Our Author has forgot to mention Donations maJe by living Parties, as well in Chap. iv. as in this ; but Mr. Barbeyrac, i
his firft Note upon the firll Seft. of that Chapter has fupplied this Defcft.
*
Tantundem in bonis fidei
judicis
officium judiciis valet, quantum in Stipulatione nominatim ejus reifaHn interrngniio, Digell, 1. 111.
t. 5. De negotiis geftis, leg. 7. Moreover, in the Roman Law, the Number of honell Contradfs, call'd, Bonn- Fidel, is not determin-
ed clearly. See ////?/>. 1. iv. t. 6. De ABionibus,^. zZ, iq. nor do the Interpreters agree about ihem. Ssc Tilius in Lauterback
Oh.
ferv. 1148, (sfe.
^
This goes fo far, that if we require, for Example, one Dollar more than appears to be due, we lofe our Caiife. Hie tu
ft
amplias HS. nummo petifti, quam tibi debitum
eft,
civ'fam perdidi'ii, propterea, quod aliud efl 'Judicium, aliud Arbitrium,Cica. Oni-
pro
Q^
Rolcio Coracedo, c. 4. 5/ quis agens, intentione
fua plus complexusfuerit, quam ad eum pertineat, caufa ca-lebat, i. e. Rem amit-
tcbat, nee facile in integrum rcflituebatur a Pratore,
n'ifi min'jr erat viginti quinque annis, Inltit. 1. iv. t. 6. De ARionib. ^. 33-
See
PlautuTi Mftellar. Ad. iii. "Seen, i . 123.
Sueton- Claud, c. 14. Seneca, ep. xlviii. init. Moreover, this nice Exaftnefs was cnjoyned,
liecaufe thofe who had the Cognizance of Civil Affairs were commonly inierior Judges, whole Power was limited by the Prsetor.
See Mr. Noodt'amno\x% Treatife De JurifdiBicne 3? Imperii, lib. i. c.
13.
IX. AU
Chap. II.
that
prefuppofe
the Price
of
Things.
475*
IX.
All chargeable Cmtrails are reducible to four
Heads; Firft,
'] Goods for Goods
; Secondly,
*
IVurk
for
fVork ; Thirdly, II Goods for Work ; Foiuthlyj
*
t
IVorkfor Goods. Where the Word Work is tak-
en in a large benfe, fo as to comprehei d even the
Deed of another Man. Grotius
^
admits of but
three, leaving out Goods
for Work
;
for that, he
thinks, tails in with Work jor Goods ; and indeed
there is no real Difference between them, for boch
exprefs that Goods and Work are barter'd for one
another : But in one, the Contract in a manner be-
gins upon the Delivery cl the Goods ,- in the other,
upon doing the Work. So that in the one the Doer
feems the Author of the Contraft
; in the other,
the Giver : For in fome Contracts, tho' both fides
are equally obliged, yet they take their Rife from
one only ; as in buying, the Buyer begins the Con-
traft ; m letting, the Tenant, C7c.
To the fiijt Head belong all thofe Contrafts,
where one tning is exchanged fur another, as in
Bartering ftridly fo call'd. Where we may ob-
feive a Diftii.dion nice enough, which fome make
between the general Contract of Goods for Goods,
and Bartering. The former is, when the things ex-
changed are indefinite, as an Ox for a Mule ;
or
where, at leaft, one Part is (o ; as a Horfe for
this particular Ox; Oil tor Corn in general. But
when the Goods in Contrail are determined, -w.
g.
this Ox tor this Hoiie, it becomes Bartering^.
Hither may be referred the giving Money tor o-
ther Money of different Species, or in a ditierent
Place ; whicn is now call'd Exchange
'
. Some-
times indeed Nioney is given for Money, (o as to
make it perfeiStly Biiyingand Selling ; as the Mo-
ney ilamp'd witii Vittory, which Pliny
'^
tells us,
before it had received that Stamp ^, was account-
ed a Commodity. It Goods are given for Money,
the Cuntrad is call'd Buying and Seliing. Some-
times tiie Ufe of a Commodity is given for a Com-
modity, as if I lend my Hoife tor a Book. Some-
times the Ufe of one thing for the Ufe of another,
as if I let you live in my Houfe, upon condition
that you let me enjoy your Land. Sometimes the
Ufe of a thing for Money, which is properly cal-
led Letting and Renting. Some things too we give,
in order to receive as much of the fame fort fome
time after.
Ot the fecoiid Head, M^vrk for Work, there are
innumerable forts,
according to the infinite Varie-
ty of ufeful or pleafant Aftions, which may, in a
manner, be exchang'd and perform'd for one ano-
th.er. In Anvn. Manellinus, 1. xvi. c. lo. this forc
of Contraft is call'd Pactum reddendo viciffitudinis
And in Apuleius in Apolog. Mutuavias operas cum
vii inis camb/re '
.
To the third fort. Goods
for Wurk, belong the
ktting-out, or hiring Work, or Day-labour foe
Money, as alfo that fort of Contract, by which
Goods are fecur'd and freed from Danger for Mo-
ney, which is cali'd Iiifurmg. As alfo, when any
Commodity, confumable or not confumable, is
given for the Performance of any Work.
To the fourth Head, Wo>kfor Goods, belong thofe
Contratts, by which any Work is done for any thing,
or for the Ufe of any thing, or fuch like
*
. Be-
fides, there may be Contracts not reducible to any
ot thefe Heads, as implying Disjun&ion
+ ^.
Such
as were the nuptial Donatives among the Miifco-
vites, of which 5/^//WW Baron of Heil>erfleinc,i\'cs
this Account : T'/Jofe that are iuuited to the IVedJingy
prefcnt the Bride
; all the P.efents the Bridegroom
marks, ai;d lays up carefully ; when the Wedding is o-
'ver, he revieivs them, and thefe that he likes, hj fe,ids
to the Market to be prizfd; aii the refl he retttyns back
with Thanks. Tfh^fe that he keeps, he makes amends
for,
at the End
of
the T.ar, according to the lvalue
of
thfin, either in Mjiey, or fimething equivalent.
If
any one puts a greater Value upon his
Gfis, the Bride-
groom appeals to the fxuorn Appraifers, and forces him
to fiand to thtir Valuation, But
if,
in a Tear's titne,
he does not make a Return, or fend back the Gift, he
is fined
double. And
if
he forgets to have it -valued by
the fworn Appraisers, he is forced to repay it at the
Value
of
the Giver. And this Cuftoni the common People
vbferve in alljurts
of
Donatives. The fame thing is re-
lated of the Prefeuts the Perfians give liberally to
Strangers^; for which, it they do not receive a
greater Return, they not only complain, but otteii
revoke what they had given, or the Value of it.
All thefe forts ot Contrads have this in com-
mon, that when they are perform'd on botli fiueSi
the Parties have no longer any thing to do with
one another upon this Score. And therefore
^
Gro-
tius
^
calls them Diremtorii, and oppofes tiiem to
f
Do, Ht lie!.
*
F/nio, ut fiicias.
||
Do, lit facias.
*f
Facio,ut da.
^
In the aforefaid Place.
'
Vid. Mornacium adXh.w. D- De prrefcriptls verbis.
"^
In hmn. Cambium, in Greek KoaauiSi);- ^
Nat. Hiit. lib.
xxxiii. c 3.
'
Vid. Tc/.7OT, t.
5.
1. ig. D. De prafcript. verbis.
''
AsaMo t\ii Cotitnifius evjlimatorins, de quo vid.
1. xix. t. 3. D De aflimatoria aaione. Add. Pln:tt. Captiv. Aft. ii. Seen. 3. ver. 18, iSc.
s
Vid. Petrim della Valki
Itin. Part ii. Epilt. i.
"
In the aforelaid Place.
Mr. Bare. NoTES on
. ix.
'
So the Dige/ls diftinguifh them, Totius ob rem dati traHatus /// his competit [peciebus. Aut cnirri do tibi, ut des j ant do,
utfacias; autfacio, ut des; autfacio, ut facias, 1. xix. t. 5. De Prafiript- Ferb. Sec. I. 5.
princip.
*
See Mr. Noadt's Probabilia Juris, 1. iv. c. 4. where he recites a Law of the Digcft.
lib. xii. t. 4. De condillione caufa data,
taufd non fequutd, leg. ult. which being correfted by an happy Conjefture, which he propofes, fhews, for Example, that the Law-
yers looked upon it as an Exchange, and not a Sale, to give foreign Money for a Slave. See alfo Bern. Briffon. felcB-
Antiquit.
lib. i. c. 8.
^
The laft of thefe fpeaks of thofe who went up and down to do Husbandry Work the one for the other. Bgo adeo fervos t;i an
habeas ad agrum colendurn, an ipfe
muti/arias operas cum vicinis tiiis cambias, tteque fcio, neque laboro, Apolog. p. 20. cum notis Pn-
cii. And Am. Miircellinus trc.ns of certain auxiliary Troops, hired on condition of affilling as long as there is need. Hos fequt-
bantitr
poleftate proximi reges numero quinque, regalefque decern,
i^ optimatumferies magna, armatorumque millia triginta fs"
quiiique,
ex variis iiationibus, partim mcrccde, partim paBo viciffitudinis reddendre quiejlta, 1. xvi. c. 12.
^
This is, when one trulls a thing to another to fell at a certain Price, on condition, that he either returns the thing again, or the
Value, according to the Price fet on it. Cum res ajiimata vendenda datur afiimatio periculum facit ejus, qui jujcepit. Aut
jgitiir ipfim rem dehcbit incorruptam reddere, aut cejlimatianem de qua. convenit, Digell. lib. xix. t. 3. De .mjlimatoria. Hs^Plaut.
Captiv. Aft. ii. Seen.
3. ver. 18, &c.
^
Grotius\ Divifion is into Diremtorii and Communicatorii, and not Commutatorii, as our Author has it, which he makes the two
kinds of Contrafts, Avhich he calls Permutatorii. Moreover, there is another confiderable Miftake in the Original
j for \ve may ob-
ferve that our Author undcrllands Grotiu.C$ Words, Alius permutatorii aut dirimunt partes, aut communiojtem adferunt, as \{ dirimere
partes fignifiei to divide the Parties or Contraftors, and caufe them to have no Dealings one with another. But Grotius was too nice
to ufe fuch a barbarous Expreflion ; for if we examine his Words, we fhall find his Notion to be this, that thefe forts of Afts eitlier
regulate the Part that each Contraftor ought to have, or make the things about wliich they treat common.
P
p
p
z
thofe
4l6
Of
ContraBs in general, ficc.
B o o k
V.
thofe Contrads which he calls Commutatorii, the
Completion of which confifts in having Dealings
continued between the Parties, as in that oi:" Part-
nerfliip, where, for one anotiier's Advantage, two
or more join, either Work or Goods, or Work on
one fide, with Goods on the other. And thefe, to-
gether with thofe which we call gainful, are gene-
rally ///>/? Contrads.
X. But feme Contrafts are mist, and, as it
were, cornpounded of two forts : as if I delignedly
buy a thing for more than the Value, and lo give
the Overplus of the Price to the Seller j
or
'
fell
a thing for lefs than the Value, and fo give what
is wanting of the Price to the Buyer : This is
partly giving, partly buying and felling. Thus
Cxjar (old vaft Farms to Servillia for a Trifle ^ If
I give greater Wages than the Work is worth, it
will be partly Gift, partly Hire : which great Men
fometimes do out of Grandeur, thinking it tor
their Honour to reward any Man's Work more
than it deferves ; and this is partly Liberality,
partly Contraft
**
. And on the other fide, a Man
may accept of Part of his Wages, and forgive the
reft
"
. If I bargain with a Goldfmith to make me
Rings out of his own Gold, it will be partly buy-
ing, partly hivit^g
''
. Tho' fome look upon it to be
only bujiiig; fince in buying, we nor only pay tor
the Materials, but for the Workmanfliip too. And
there is little Ditference whethe>r the thing is al-
ready made, or to be made
^
. Nor can I be pro-
perly faid to hire, where the Perfon of the Work-
man remains at his own Difpofal
*
. When Land
is let out for Rent, it is a mist Contraft of fe/lifig
and hiring, tho' the Law ot Zenu makes it a Spe-
cies of itfelf. A Grant by Fee is fo far a gainful
Contract, as being much greater than the military
Service that is dv.c for it. Indeed, as far as this
military Service may be exafled for the Proteftion
that the" Lord gives his Vafl'al, it partakes fome-
thing of tWcfecond fort of Contraiff, IVorkfor JVork;
yet that which is the Principal in the Contract, be-
longs \.o the third fort, Goods for Goods. But it this
Fee be charged with the Incumbrance ot a certain
Qiiit-Rent, fo far it partakes of Land-renting.
Laftly,
nautick Interefi, or what we call Bottomry,
which vaflly exceeds all other common Ufury, is
mixt of borrowing and infuring. But in Partner-
fhip, tho' one contributes Money and Work, an-
other only Money, yet it does not feem to
be
a
mixt Contraft. For it does not become mixt from
the different Performances (for if 1 hire a Man to
dig in my Vineyard, to fow my Ground, and
plant
my Orchard, it is all but the fimple Contrad:
of
Hiring) but trom our Agreements in Matters of
a
different Nature, by one and the fame Covenant.
Grotius
'
is of Opinion, that a ContraQ: becomes
mixt by the Acceffwn of
one A[l to anther,
as in
Suretifhips and Pledges. But in this he feems not
fo very accurate ; for a third Species mull refult
from a Mixture properly fo call'd : Whereas in
Suretifhip the Security is not mix'd with the prin-
cipal Contraft, but is only added to it, as an ex-
trinfick Confirmation. For the giving Security
makes no Alteration in the Debt j but only makes
Provifion for the Creditor, ia cafe tlie principal
Debtor fhould prove infolvent. However, to fpeak
more accurately, there are in Suretifliip two Con-
trafts, which feem to be but one, becaufe the fame
Surety hath to do with both Creditor and Debtor;
tor there pafles but a bare Promife between the
Surety and the Creditor
; and ye;, ffriift'y fpeaking,
that Promife only fhews that he is obliged to make
good the Debt, and is not that which ooliges him;
for that which obliges him is the principal Con-
traft, whereby the Surety by his Promife has
brought an Obligation upon himfelf to fupply the
Failure of the Debtor : So that his Promife partakes
of the Nature of the Contra6t itfelf. Now this
Suretifliip is no Gain to the Creditor; for he gets
nothing by it, but a proper means of recovering
his own. And altho' his Security is hereby pro-
vided for, yet not the Creditor, but the Debtor is
beholden to the Surety ; for without this Security
the Creditor had never enter'd into Contraft.
But when the Surety pays the Debt, then there
arifes an Account between him and the Debtor.
For in this Cafe
'
he is fuppofed to have lent the
Debtor the Money, or, which is all one, to have
paid it by his Order and CommilTion. Now this
Aft of Suretifliip cannot be reckon'd an Aft of
Liberality; either in refpeft of the Debtor or Cre-
ditor; for the Debtor gets nothing by it, and the
Creditor without it had not entrcd into any En-
gagement.
the End. And as for wh.it concerns the Chriftian"^, they have an Example of Joteph,
who did the lame in Egypt. IT. If the Mer-
"
chant, beinc sot to Rhsaes. had found that Corn had been brought thither *rom fome other Place, and he muft Icll a: a lower
"
Price than Tt coft him at Alexandria, or if his Veffel had been loll in a Tempeft, he muft have born tiic Lofs, and no Man would
have minded to make good his Damage. Why then mitrht he not make uie of his good Fortune, wliich brouglit 1"^' mto the
480
Concerning
the Equality that ought to he Book
V.
treme Want of it. But tins was not the Cafe of
the Rhvdiaas, they wanted Corn indeed, but not
Money ; for they were famous among the Anci-
ents for their Riches. Befides, I am not obliged
to do a Kindnefs, when 'tis like to tend more to
the Detriment of the Giver than the Benefit of the
Receiver. But, in this cafe, the Merchant
would
have loft more than the Purchafers
would have got
by the Intelligence. For if he vended it to a great
many Purchafers at the Marker-price,
each would
have felt it but little ; and if any one Man had en-
grofs'd the whole, he might thank his own Avarice,
if he loft by it ; and indeed we cannot exped:, in
the common way of the World, that Men fhould
be fo very exad in the Performance of this Duty :
For, provided the Love of Money does not tempt
the Merchanr to cheat us, we may eafi'y excufe
them fiom what the Law of Courcefy and Good-
nature may feem to oblige them to.
V. As for Faults alresdy known to the Buyer,
they need not be mentioned, for in this cafe both
Parties proceed
upon the fame Foot
*
.
So like-
wife, where the Seller has told the Faults, the Bar-
gain ought to ftand good, for then 'tis maniteft
that the Buyer confents to them ;
'
Cicero has a
Cafe
''
to this Purpofe. Gratidianus jold to S. Gra-
ta tl.ofe very Hnfes which he himfelf had bought of
him
but a few
Tears before. Thefe Huufes paid a Duty to
Orata
{-which -a^as out of
his Mind) but Gratidianus
made no menti'n of
it in conveying his Right.
The
Caufe uvjf brought into the Court. Cralliis ivas for
Orata, and Anthony for
Gratidianus. Craflus in-
Jifled
upon the Law, that the Seller knowing it ought to
have acquainted the Purchafer -with the Incumbrance,
but did nut do it. Anthony infified
upon matter
cf
Equity, that the Incumbrance itas nut unknown to Ora-
ta, who ha:l fold the H.ufes, which made it needhfs for
Gratidianus to
fay
anything
of
it ; nor cow/.i Orata be
faid to be deceived, that knew what Title he hadbtugkt.
For as
Ulpian fa)s, lib. xix. t. i. 1. x. f. i. D. De
AB.empt.
~
He dees net feem to have the tlihg
con-
cealed, who knew it, nor ought he to be advtrtifed
ofit,
who was not ignorant. Add. 1. xviii. t. i. l.xliii.
f i.
1. Ivii. f. 5. D. De c.ntrab. empt. Lib. ult. D. De ^.
dilit. ediclo ?
. Upon the fan.e Principle was
found-
ed the Sentence that Marius gave m the Cife
of
^
Fannia, who had been mairied to Tinnius
; but
upon a Divorce demanded back her Dowry,
which
was confiderable. He objciixcd Aduicery
againft
her. The Caufe was brought betore the
Conful.
After a Hearing on both fides, ic appearing,
that
fhe had been an immodcft Woman, and that
iuc
Husband, knowing her to be lucii, had yet ven-
tured to marry her : The Conful reproved
them
both, and order'd him to reftore her J)owry,
and her to be fined four Affes
for her Icandalous
Behaviour
'^
.
VL BeliJes, as in all Pads, fo efpecially
in
Contrads, neirhcr Party (hould be torced uuo a
Bargain by an unjaft Fear. The Lacedemonians
therefore did right in refcinding the Piirchafc of the
Land that the EUans had extorted from the Pof-
ftiVors thro' Fear : For they were of Opinion, Ta
force a Title frcm the weaker under the Pretence
of
Pur-
chafe, was no better than downright Rbbery
"'
'. Tdus
when Cicero
'
objefled againft ^xvj, the Pidures
and
Statues which he hud brought out oi Sicily
;
Verres thought he could a'lfwer the Accufation in
a Word, by fa)'ing
^
,
/ bo:'.ght tlnm. But Cicero
replies,
Ihat their Anceftors had wifely enafied,
that whofiever jhruld be fent Guvernour into a Pro-
vince, Jhould not be aUuwed to make any Manner
of
Pu} chafe : And
for
that Reafon Mney and Equip-
age was provided them by the Public k. Slaves in-
deed were not, becaufe there was farce any Man
of
Figure in Rome, but had fome
of
them. And yet no
'
Vid. Crol. 1. ii. ubifufr.
n. 3.
"^
De
Off-
1- iii. c. 1 6.
"^
Plutarch in Mario,
p. 427. Ed. Wech- and Val. Max.
1. viii. c. z. f.
3.
''
Vid. I. xlviii. t. 5. I. 13. f-
9,
10. D. Ad L- Jul. De adult.
' Xenoph. 1. iii. Rer. Gracarim,
p. 288. Vid. Grot. 1. ii. c. 12. i. 10.
''
Orat. ix. 1. 4.
c.
5.
Mr. Barb. NOTES on . iv, v, vi.
"
of Gain ? On this Account (fays Mr. La Pincette) I dare not condemn the Merchants, who make their Gains by the Advices
"
which they receive from their Correfpondents in other Countries. A,s thefc Correfpondences coll them fomething, it is jufl they
"
/hould gain by them, nor can I think that they are bound in Confcience to dilcover them to any body.
'
Jus Craffiis
urgebdt (fays Cicero) quod vitu venditor non dixijjet fciens, id oportere pr/tjlari ; (equitaten Antoniui, qttoniam ii
viliiim ignotim Sergio nonfuiffet,
qui illm ades vendidijjet, nihil
fuiffe neceffe
did, nee eum
effe
deceptum, qui id, quani err.erat, quo jure
effet
teiient. Moreover, to underlhnd the Caufe of this Suit, we murt fuppofe th.it Sergius demanded an Abatement in the Price, up-
on the account of the Right of Servitude, which had been heretofore apparently relerved upon ihc Houfe, when k was fold to Ma-
rius, which made it of a lefs Value ; for he affirmed, that fince that Servitude was known, no body asked the Price of it.
*
Ulpian'i Words are, Hac ita vera funt, fi
emptor ignoravit fer-i-itutes, quia non vidctur
effe
celatus, qui fcit ; neque certiorari
debtiit, qui non ignoravit.
i
To this belongs that of Horace, Lib. II. Ep. ii. ver.
1 4, \Jc.
where he brings in a Fellow felling a Slave
;
who, after having
reckoned up his good Qualities, adds.
Semel hie ceffavit ; (sf, ft fit.
In fcalis
Intuit, metuens pendentis habente.
Des nnmmos, excepta nihil te
fi
fiiga leedat,
Illeferat
pretium, pccnce Jecurus, opinor.
Prudens emijli vitiofum : diSla tibi
efi
lex.
This Boy was faulty once, he Ilay'd at Play,
And, when he fcar'd the Lalh, he run away ;
Buy, if you like him now, his Faults are told,
The Dealing's fair, and he may take your Gold,
And ne'er be thouaht a Cheat for what he fold. }
NTr. Creech.
Jdd.'l-xxix.t.:;.
1. I. {. ^'}. D- DeSenatufc.Silaniano. Lih.xxi. t. i. D- De jdil:t.ediSfo, 1. 17.
f. 10.
'
P/utarch's
Words are, Vvovref /x>iSt SixaioTtpjv tJvsci ^itt TpiajijvH?,
>;
|3i'a a$*o)xm, tctfo. rHv i>,tt(jhov afi/5.4mi(.
'
C/6Vr's Words are. Verba jurn uiio repellar, Emi, inquit. Primumfi id quod vis, tibi ego concedarn, ut emcris quiero,
aijufmodi tu judicia Pom/e putnris
cffe,
fi
tibi hoc quenquam conceffurutn putafti, te in Pratiira, atqke imperio tot re<, tarn pretiofas, om-
iiefque denique res, qua alicujiis pretii fuerint, tola ex Provincia coemiffe.
Vidcte Majorum diligentiarn, qui nihil dum etiam ifiiufmodi
fufpuabanliir, veruntamen ea quis parvis in rebus accidere poterant, prnvidebant. Ktrninem, qui cum poteftate, aut legatione in pro-
tinciam effet
profeeius, tarn ammtemfore
putaverunt, ut emeret argentum ; dabatur enim de publico, ut vejtcm, prab,batur enim legibus',
mancipium putaverunt, quo fj otnnes utimiir, l^ non prabetur a populo. Sanxerunt, Ne Qj;is emeret Mancipium, nisi
IN D E M o R T u I L o c tj M,
fi
quii Roma effet
i 'emortuus ? Imo,
fi
quis ibidem : non enim te inftruire domum tuam voluerunt
in
provincia, Jed ilium
nfim
provinciafupp/ere. ^afuit caufa, cur tarn diligentcr nos in provincia ab emptioniius removeren'. ?
Hac, Ju-
dices, qujd put,ibant crept ionem
effe,
non em.ptionem, cum venditori venderejuo arbitratu non liceret. Inprovinciis intcUigebant,
fi
is, qui
effet
'cum imperio
3"
poteftate, quod apud quemque effet,
emere vellet, idque ei liceret, fore uti, quod quifque vellet. Jive effet
'Ji.idle, five
non effet,
quanti vellet, auferrct.
Man,
Chap. III. ohjerved in charge
ahh Contracls.
'4'j'f
Man, in his Prouince, could kiy a Shik)e, but in the
And yet, in a Charge, or a Commiflion, anEqualftf
roam of
a dead one
;
for they look'd tipon it to be may fometimes be regarded, tho' indireftlj-, and
bf
flunderivg, and not purcbafing, ivhen the Sel'er could Accid.mt ; for if any thing, befides Labour, has
mt fell at his own Rate. And in a Province, they been laid out in foliciting the Bufinefs, or managing
ii:ere convinced, that
if
the Governor, back'd with the Charge, it ought exaftly to be refunded. And
Pc-^er and Authority,
Jhould be permitted to buy what the Rcafon is, becaufc in fuch Contrails as thefe
he picas'
d,
it would be brought to that
pafs,
that he the Labour is gi\'en gratis, but the Expence
'
ta-
woulJ have whatfvever he had a fanfy for,
whether citly agreed upon to be repaid
^.
expoi'd to Sale, or m, and at his own Rates. Add.
VIIL But in chargeable Centralis an Equah'ty is-
/. xviii. t. 1. /.\h'i, Ixii. D. de contr.empt & I. \Wm. to be fo ftriftly regarded, that if one Party has re-
/. 1 1. L.penult. D. adL.
Jul. repetund. L.
\
i. /. 2. t. 20. ceived more than his Due, he muft not retain the
Lii.de his qua vl metufque caufa, &c. Confiitut. Overplus, upon prefumption that it was deligned
Siculariwi, I. i. t.
88./ i. "tadtus, Ann.xiv. c. 14.
for a Gift. For Men do not enter into fuchfoirtof
in
fn.
"
When the Purchafer can force him to it, Contrafts, with a Delign to give any thing
'.
And
*'
the Seller lies under a Neceflity of parting with therefore fuch a mixt Contract muft not be prefu-
"
his Goods. Hither may be referr'd what Dio med, unlefs the Party exprefly confents to it, or it
"
Caffius
relates of Cefir, 1. xlii. who, after Pompey's appears that he knew die Thing to be under-rated
"
Dekat, feizcd upon that Money, wliich he had no An Example we have in Pliny, 1. \ ii. Epifl. 1
1
, CiT 14^
*'
other pretence of Levying, than under the fpecious where he fa\s,
"
He iiad, upon the fcore of Friend-
"
Name of a Loan, tho' otherwife he had taken it
"
fliip, fold Lands for Lfs than they arc worth. It
"
by Force, as if it had been his Due, and never had
"
was gencroufly done oiScavola, who being upon
"
any defign to reftore it.
"
But j'et ^
fometimes
"
a Piuxhafe, bid the Propriaor tell him, in on
the Subject may be forced by the Go\ernment in
"
Word, what he would have for the Eftate ; who
Matters of Sale or Hire : As when Merchants are
"
when he had done it, Sca:vola told him he had
obliged to fell that v\hich the Government is in
"
under\alued it, and gave him loooo Sefterces
great Want of; or when their Waggons or Ships,
"
more than his Bargain." Cic.
Off.
I. iii. c. 15.
or they themfelves are preft
;
which, when the Good
IX. From what has been faid, it follows, that al-
or Na-effity of the Publick requires, and a juft Rate tho' all the Faults have been expos'd ^, and nothing
is paid, may be tairly allowed of. Sometimes too,
demanded more than what was fuppofed to be the Va-
the State obliges us to buy fuch a fort of Commodity, lue
;
yet if afterwards there appears to have been aa
ot this or that Man only, and no wiv.re clfe.
Inequality, without any Fault of the Contraftor (as
VII. But 'cis plain, that in gainful ContraEls this
fuppofe fome Blemifh lay undifcovered, or they mif-
Eijuality docs not take place
;
for where an Equality
took the Price) it ought to be correfted, and Amends
IS to be obfervcd, the Contraft ceafes to be gainful '. made to the Sufferer
^.
Nor is it neceffary by the
But wlien a Prefent is made by way of Recom-
Law of Nature ', that this Inequality fhoald exceed
pence
%
the Contrad is fomething like Hiring,
the half of the juft Price. For that famous Law ,
which
^'Barbeyrac's
notes on
vii, viii.
'The Words are. In fiwma Jdendum
eft,
mandntum,
nlfi gratuitumfit, in aliam formam negetii caderi. Nam mercede
tcr.ptuta, -.ncipit kcntio
fS" condiifiio
effe ; ^ [ut genertiliter dicnmus) quibus c^fibus
fine
mcrccde fufctpto efficio,
mmuiati fife de-
pifiti contrahitur ntgatium, in cafibus intervenienti mercede locatio isf conduaio inteUigitur contrahi. Vid. S. Fin. inllit. de Man-
dato, 1.3. t. 27. f. 13. &1). 1. t6. t.
3. 1. I. f. 9. D. Dcpof.
Isie. 1. I. 9.
* The R'jman Lawyers c.ill it Honorarium. See
Digeft.
/. ii. t.6. Si men/or/Mm dixrrit. leg. i. princi^. /. 50. t. 13.
De extraordinariii cr/gnitionibus,
(sfc. kg. i .
i o.
3 This Fiftion of Law is no ways necefTary. The Maxims of Equity arc fufFicient only to fecure to him, who has
received a Trull, or \^ho is charg'd with another Mjn',s Bufinefs, his Damages and Expcnccs, which he is at in ferving the
Pcrlon that h;is entrufied him, or given him a Commiffion.
'
See the foregoing Ch.ipier,
i o. Note 1
.
.
See
/.
3.
r.
3. 5 , 2. above. b
rid. I. 1 2. prin. D. depofiti d. 1. .
V. Grot. I. 2. c. 12.
/
1 2.
A^IJ-/-
19;
t. / 13- Pnm.f.\, 2, 3, 4. D. at ^il. emp. ^ I. zi. t.\. I. 1./2. D. de adilit. cdiao.
'
Cod. lib,
4.
/. I.
44.
/. 2. L. de refcmdcn. vendit.
.
Ti w ^ f t, f-
J
M-. Barbeyrac*6
A/'OT5'oK ix,
1
he Word? of the Code are, Rem mnjoris pretii,
fi
tu vel fater iuiis minoris diftraxerit ; bumar.um
eft,
ut vel pretium
te rejtituente emptoribin,
fundum venundntum redpis, aua,ritate Judicis intcrcedente; vel
fi
emptor eUgerit, quod
deeft jufto
treUo,renp:as. Mr.
Thomnfius has publifli'd a curios Difcourfc upon this Law in 1706. under this Title, De Mquitate ct-
^i'-i""
Lfg'J 2. Codteis de refcind. vend, ig ejus
tifii praaico : Of which this is the Abridgment of the moll confiderahlc
Matters m it; A bale or Contrad made null for the Smallnefs of the Price, altho' there was no Deceit or Force other-
^lic uied, was not known before
Dioclefian. Ftom that time it hath been a Maxim currem among the Lawyers, that
I r ,,
?^^ "^ ^^^m^ every one may make as advantagious a Market for himfelf as he can, and to that End may maka
uie or all innocent Artifices.
Whence they began to make ufe of fuch Iharp Terms as thefe, ciraimfcribere, circumvenire, which
jre commomy ukcn m the worfl Senfe. See the Notes i, 2. of the follotving Paragraph. After Dioclefinn, the Emperors
l-oniinniinf the Grc.it, Grntian,
Valentinian and
Theodofius, Honorius and Arcadius repeal'd that Law of that Pagan Emperor.
rendi'.in}::!
/itq.ve emptionrs
fidem, nulla circumfcriptionis violentia
faa,m, rnmpi minime decet. Nee enim Jola pretii vilioris
V>mh, eontmausfi.ne alia culpa cekbratus,
litigiofe ftrepiiu tnrbnndus
eft.
Leg. i. See alio ic^-.
4,
and 7. Dioclefinn \{ma-
A i"^l
'
^""'^ rcrra(^ted it at length, as appears by another Refcript, which is found under the fame Title of the Code,
nd which IS cited in the next
Note
5.
'Tis true, that at the End of that Law we find a Claufc conform.ablc to the 2d
i.aw tfi:re treated on
;
but when \\t examine the foregoing Difcourfe, 'tis only a Claufe put in by Tribonian\ for if the Rea-
lons
alledg'd m the 8th Law be good, as they really are, they prove that a Contraft ought npt to be nulled, unlefs one of
the
(oomraftors has paid more by the half, or received one halflefs than the Thing is really worth. There are all the Signs
in the World that the End ot the 2d Law, where the Meansefs of the Price, which nulls a Contraft, is fixed to half th
mT
,
^"^"^'^g' 's 3n Addition of Tribonian's : For befides, that it might have been better placed among the fore-
FjOing Words, the Laws of the
Theodofian Code contradift it, and fimply and in general difallow the Nullitv- of a Contraft, upon
tJie
Account of the Smsllnefs of the Price alone ; and there appears no Footlleps of any DilHuftion of what is above or
elovv the true Price.
_
Triionian having found in the Gn-^onVja and i/t'm!i^^;Vw Codes, whofe Compilers not dreaming to
sring
th Ciyil LavT mtp the Form of a Syftem, had gathered together all the Liiperial Conllitution* and Ordin.tnc-s before
.R r r
Stn-.
478
Concerningthe Equality that ought to h Book
V.
which
rehifes Relief, but where the Inequality is fo half the Price ;
for that Law only defigns the Eafe
notorious,
is purely pofitive, and founded principal- of the Magiftrat;, and not that one Man Hloiild bt
ly upon this. That it would be impolTible to di- a Gainer at another's Lofs. Indeed they do well to
foatch
Bufmefs, if the Magiflrate might be appeal'd extend the Benefit of the Law to theBiiyer
% as
to for every little Injury of this kind. And befides, well as to the Seller
;
which too, they tell us, is to
the Nature of the Market requires that we fliould be extended to all other foits of Contracts,
look about us, if we would not be deceived . for Among the Jews
\
if one defrauded another,
whatever Rate the Seller puts upon his Goods, the whether Buyer or Seller, the Law arford:d no Rjiijf,
Price is ultimately determin'd by the Buyer
^
;
tho' if the Cheat came under the Si.xtli Part of die juft
indeed the Determination of this Law is too grofs. Pace. But if it exceed.d the Sixth Part, the Buyen
For tho' the Ma"iftrate ought not to be troubled for inight either immediately, or at any time during thij
every Trifle, yet 1 fee no Reafon why he fhould not Negotiauon, refcind the Bargain, and recover the
relieve me if I have been very much injur'd, altho' whole Price : But if the Seller had been tiie Sufterer,
not half in half: As it I fhoiild fell a Houfe worth he was never barr'd from making a Recovery. And
900 /. for 600
1, 'tis hard I
Ihould be debarr'd the the fame Law obtained in the Bartering of confuma-
Benefit of the Law,
for die Recovery of the goo/, bk CommoditieSy as ot Fruit, Corn, and fuch like,
when in much kfs confiderable Cafes aa Action is But the jf^iu only, if inj'., u, enjoy d the Benefit of
allowed me. And therefo.e, as a fmall Damage, e- this Law; and not the Ge/^f Ve, it injur 'd by a jew,
vm In the Law of Nature, is not fufficient to break X. To what has been faid, the Roman Lawyers
off a
Baro-ain ;
fo where the Damage is great, altho' have taken a great deal of Pains to reconcile a Paf-
it amounts not to half the juft Price
%
tne Baigain fage in the Digefis ",
'
waicn fays, That in Buying
ought to be refcinded, or the Price made up. And and Selling the Parties may
^
naturally over-reach
this
Greamefs of the Damage is to be eflimated, ei- one another. Of whiclr Grctius
^
feems to give a
ther by the Exorbitancy of the Price, or the Po\crty good Explication. For lie {hews, that may and
muft
of the injur'd, which fometimes renders the Lofs in- do not always denote that it is law ful, but only
tolerable to him, which a richer Man would not be that it is fo far permitted, as that the Sutl^rer caa
fenfible of Nay, even where the faid Law is in have no Remedy, in cafe the other infift upon the
Force, the Buyer is obliged, in Confcience, to make Bargain, and, being tax'd of Injuftice, replies, that
up a very
^rrcat Damage, altho' it comes not up to it was nothing but what was agreed upon betwixt
them :
Confl/intine,
not troubling themfelves whether they agreed one with another, or not. Tribcman, I fay, having found thefc
two Relcripts ot Dm'efian,
of which file lift was direftly contrary to the firll, but Appearing to him n:vjrthelefs equi-
table, believed tlut they inight be reconciled by a Diiiinftion, which he annexed to Mch of them. Aitcr this he iup-
prels'd the ift and ^th L.:ws of the Iheodofian
Code, becaufe they could not eifily be accommodated in any fuit.ible man-
ner, to his Notinnt ; and tho' he
retained the 4th, which is now the
1
5th in the Title of the Juftii.'iai: Code, he made feveral
Alterations in it, thit it might make for his Purpofe evidently, as among others this
: Inftead of Repetitv.r.is in Reliquum,
PRETII NOMINE VILIORIS, copiam minime anfequatur, as the Laws oi Gratitn, ralentinian, and TheoJojlus import, he put,
PAULO viliorii prctii nomine, &c. This manifeft 'Corruption made all that he had to fay oi Diorlcjian's two Relcripts plau-
fiblc And I will add, tho' Mr. Thomafius did not obferve it, that there is Reafon to believe, thjt in Book VIII, the Word Pa:ih
is alio inferted in the fecond Period, before Minore pretio. The Canon- Law having afterward approved the Foundation of
the Law of the Juftinian
Code, it was look'd upon as a Conclafion flo.ving from inditputible Eqaity, and paited for a
Rule in all the Courts, except Magdeburg; where fuch Political Ordinances are almolt quite abolilhed. Neverthelefs
Mr Thomaftus
maintains, that it cann't be brought into Pr^ilice, becaufe the common Price, by whkh the D..m;.ge mull
be regulated, is very changeable and uncertain ; fo that, it is very hard to fix a Moiety or a Qaarter, fife .
Further, a
"reat Damage, fuch as that we are fpeaking of, cann't be done in a Contr.^a, without feme great Grief to one of the Contraaors
at leaft, and then there's no need of T>iochfinn%
Law; or the Fault may be on both Sides
;
and then wc muft judge according
to the Principles eftablifhed above; ii*. 3. f. 6. 6. See more in the following Note.
But Mr. Hcrtiui obfcrves here and in his Dilcourfe Dc Lytro, Seft. 2.
22. How doth this agree with what our Author
fays
<-.
I.
8. of this Book
.? Grotius alfo fays. That as to outward Aflions, the Inequality to which both Pcrtics have con-
fented, and there has been no Lying nor Concealment of any thing that ought to have been dilcovcred, fuch an Inequality
pafics'for Equality; fo that in the Civil Law, no Aftion in Juftice lay before the Conliitution o( Dhchfian (i. e. before Law 2.
fpoken of in the foregoing Note.) Likewife, between fuch as are united only by the Law of Nations, no Reftitiuion can be
required, nor anv Man be forced to make good fuch D.^mages, /. 2. c. \z.
26. n. \. It is true that he adds, th.it this is on-
Iv an outward PermiiTion, \\ hich is of no Force in Foro Confcientia,
tho' it may be llrengthencd by Cuilom. But this fuppo-
feth tlut the fixing a Price in Contrads is grounded on the Nature of Things themfelves, or depends on the Will ot a third
Pcrlon; uhercas the Truth is, that laying afide all Fraud, and all Orders of the Civil Law, 'tis the Ccnfent of P.irties that fixes
the iull Price ; fo that after their Agreement, there is no Injury done contriry to juftice, properly fo call'd. See Mr. fhomaji-
ai'sDifcourfe, quoted c. 2. 15, isc. 'Tis another Cafe to 'determine, whether we may commonly ufe this Right (See c. i.
9.
Note I.) or whether we do amifs in ufmg it ag.iinft the Laws of Liberality and Bounty, which require our Help to our
Nei;hbour in his Need, and not to make an Advantas;e of his Want or Misfortune. Upon which Account he that compofed
D'wlefian's.
Refcript, may be freed from the Blame which Mr. Tbomafiiis
charges on him,
/?,/.
32.
that he confounds the Rules
of Humanity .md Juftice : For in the Stile of the i^owj;/ Lawyers, Humamim ej}. fignifies,
'1
is Juft,
Equitable, andReafona-
ble, {5V. See, for Example, Code l.\.t.\\. De Leg:b. (s
Semtm coiif. is' Leg. 8.
3 Cujaeiui maintains, Objervat. xvi. 1 8.
(J
x.xiii. 32. that it was not allowed by the Roman Law.
To which may be applied that oi Cieero,
Off-
I. 3. c. 17.
"
Laws and Philofophers provide againft Frauds different Ways
;
<
the Laws reg.itding only Matters of Overt Ad, whereas Philofophers judge according to Equity and Rcafen."
i-
Seldiit
del
NUfG. I. 6. c.
5.
Add. ]. iq. t 2. 1. 22. f. 3. D. locati, iffc.
d
L.z. c. 12. f 26.
Mr. BAR3F.Y Vi Ac's NOTES on x.
'
Idem
Pomponius ait, in pretio emptienis bf
venditionis naturaliter Hcere contrahentibus
fe
circumvenire. Digeft. 1. 4.
t.
4.
De
Minoribus, Leg. 16. 4.
,,,t rrxir-
This Explication of the Word, Naturally, is not proper ; for it is never taken by the Roman Lawyers lo tar as 1
know, tor
Cuftom ; and tho' it may fignify fo in Authors, yet it foUows not, that we may {o explain it here. Nothing is more common m
the Body of the Law, tlian to fignify by Naturaliter, a Thing agreeable to natural Reafon, or the Law of Nature
;
and lo it is
to be underftood here. And fo clreumvenire (or as another Laiv has it, eireumfcribere]
fignifies here any Innocent Art to get as good
a Bargain as we can. The Word Dolus here is taken in a good or bad Senfe ; and fo Lucretius uies the Word Deeipere, m thelc
Ut puerorxm <etas improi/ida ludijicetur,
" That th' carclefs Age of Boys may fo be cheated,
-
Dtceptt^ut nm cafiatir.
And being deceived, m.ay not be defeated.
Chap.
III.
Concerning the Equality, &c.
them : And he that won't open his Eyes, as the
Saying is, muft open his Purfe. Add. Lex Cii-
javior. t. i$. c. 9.
f.
I-
and Capittilare Caroli,
l.v.c. 210. In Xemph. de Memorab. Socr. I. ii.
towards the End, this Rule is gi\en, 'Tis a Piece
of
good HusLvidry, -nhen a 'valuable "Thing can be
bought cheap, to buy it. Add a witty Saying of
Cicero's in Gellius, 1. xii. c. 12. Vid. Sen. dc B.ne-
ficiis, /. vi. C.38. Where he difputes whether De-
mades did well at Athens, in condemning one who
got his Livelihood by providing Things necefl'ary
for Funerals, having pro\'d that he delircd a quick
Trade, which could not be without the Death of
a great many People. Add Capittilare Caroli, l.'i.
c. 131. As for the Inftance of ^abob ', his
Crattinefs is the more excufable, becaufe he had
to do with a defigning Man, who endeavoured
every way to over-reach him,
^
and who impos'd
hard Conditions upon him, gi\ ing him only half
of the Young for keeping his Sheep, and yet ma-
king him ftand to all Accidents. So alfo the
Word naturally
^
does not always fignify what
ought to be done by, or what is congruous to the
Law of Nature, but what is cuftomary, as, i Cor.
xi. 14. Doth not even
"*
Nature itfelf teach you,
that
if
a Man have long Hair, it is a fiame unto
him? Yet here the Word KofMv, to have long
Hair, may be taken for too nice a Care in adorn-
ing the Hair, which Women feem to claim as
tlieir Right, and which feem too efteminate in a
Man
'^.
Tho' indeed it is difagreeable to the
Diftates of natural Reafon for a Man to afliime
tiiat Habit, which Length of Time has appro-
priated to Women, and by which their Sex is
diftinguifh'd from ours. But to return to the
Matter in hand. Lib. iv. t.
44.
/. xlviii. C. de refcind.
vendit. \
"
It is the conftant Way of Buying
"
and Selling, for the Buyer to beat down the
"
Price, and the Seller to raife it, till after many
*'
Words on both Sides, the former rifes in his
"
Bidding, and the latter falls a little firom his
479
"
Demands
;
at laft they agree in a certain Price."
Anacharfis in Diogenes Laenius, B. i. f 105. did
not abfurdly call tlie Market,
"
A Place to cheat
"
one another in, and deftin'd to Covetoufnefs."
Add. l.x\ iii.t.
19. D. de adilit.
edicio. Every Maa
has naturally a great Defire of increafing his Stock,
and therefore Trade could hardly be carried on in
a Society, were there not fome
Incouragcment
for
Induftry. Vid. /. xvii. D. de Ccntrah. empt.
"
He
"
deferves to be laugh'd at, who fufiers himfelf to
"
be impofed upon." Plin. 1. i. c. 24. princip.
"
To
"
make a bad Bargain is the more ungrateful, be-
"
caufe it expofes the Folly of the Maker."
An tibi mavis
Infdias
fieri,
pretiumque avellier ante,
Qu-am mercem
cftendi ?
Hor. Sat. 1. i. f. 2. v.
103, 104, 105.
Would you be cheated ? the Occafion's fair.
Since you would buy before you fee the Ware.
Mr.CREECH.
BeCdes, each Party feems by tacit Confent (fince an
exact Equalit)', even by the nicefl: Scrutiny, is fo
difficult to be determin'd) to indulge one another
the Liberty of deviating a little from the true Price.
And therefore it feems to be the received Law of
the Market, that every one fhould be free to make
his beft Ad\antage of Buying and Selling, provided
there be no Deceit in the Commodity itfelf
^.
For if there be, the Opinion of Fulgentius
=
will
take place, who fays, That Mercury was there-
fore fuppofed to be the God
of
Trade and Thievery,
becaufe there is no
Difference betvceen the Cheating
and Lying
of
a Tradefman, and the Robbery and
Perjury
of a Thief.
"
The Ephori fined a Young
"
Man for Buying a Farm at a cheap Rate
;
"
and the Reafon they gave, was, Becaufe fo
"
young a Man was fo much given to Lucre.
^/. V. H. I. xiv. c.
44.
Mr.
Tbomafiusfupra 29. prefers another Explication, but not fo exaft or natural, tho' in the End it comes much to the
fame. It feems alfo to me, that in the Law of the Digefts, lib. 19. tit. 2. kcat. &c. Leg- 22.
3. Thefe Words, quod flurts 5f
minoris
fit,
fignify that which is worth more or lefs, and not what the Buyer eileems lefs worth, and the Seller more, at tha
Beginning of a Market, as that able Lawyer underftands them.
^ See Mr. L e C l e r c's Note upon Gen. 31. 12.
St. Paul fpeaks there only of the Cuftom that was fettled in his Time ; from which he could not depart without a
Mark of Singularity, and offending againll common Decency. The Word, Nature, is often oppofed to Inllruftion, and wc
know that Cuftom is a fecond Nature ; fo that we have no need of a Mailer to teach us, what has been once fettled in a
Country.
5 It will be convenient to fet down the Law entire, for the Reafon alledged by me Note i . of the preceeding Paragraph :
Si vobmtate tua fundum tuum filius tuus venundedit, dolus ex caUiditnte, atque inf.diis emptoris argui debet, vel metus mtrtis,
vel cruciatus corporis imminens detegi, ne habeatur rata venditio. Hoc enim Jolum, quod paulo minore pretio fundujn venditum
Jignificas, ad refcindcndam venditiunem tnvalidum
efl. ^odfi
videlicet CONTRACTUS emptionis, atque venditionis
cogitaffes
Jubftantiam, is" quod emptor t'iliore comparandi, venditor cariore diftrahendi votum gerentes, ad hunc ContraSlum accedant, vixque
foji multas contentiones paulatim venditore, de eo, quodpetierat detrahente, emptore autetn huic, quod obtulerat, addente, ad certun
confentiant PRETIUM, profeilo perfpiceres, neque bonamfidem,
qua Emptionis atque Venditionis conventionem tuetur, pati, nejue
ullam rationem concedere, refcindi propter hoc conjenfu finitum contraBum, velflatim, vel
poft
pretii quantitatis difccptationem, niji
minus dimidia
jufti
prctii, quod fuerat tempore Veniitionis, datum ejfet, Ekiiione \jam'\ emptori
prafiita fervandd. Cod.. \.
1^
t.
44.
De refcind. Vendit. Leg. 8. See the Title De /Edilitio Edidlo, Leg. 1 8, 1
9. & de contrahenda emptione. Leg.
71
.
^ Mornacius upon the Words naturaliter licet circumvenire, explains naturaliter by
lufvat
desteroufly ;
: For that Word does not belong to circumvenire, but to licet.
e
According [to that of Ovid, Ep.
' '
"
. - .
i
j^^j^ Mich, Montaigne,
EJjf.
B-i- ( 20.
Gen. 31.
39-
>
but he is in the wrong -
^
4. HerOld. v.
75.
Sint frocul anobis juvenes, ut fcemina, compti
Mphtlog. 1. I. c. 23.
Rrr CHAP.
480
Book V.
CHAP. IV.
Of
gainful Contra&s in particular.
I. IT^at a Commifjton is.
II. T'be fpecial RefpeEi had to it hy the Romans.
III. 'The Per/on Commijjioned ought to he very diligent.
IV. How
far he ought to be indemnified.
V. JVljether a Comnifjlon can he
fatisfied ly an
E-
quivalent ?
VI.
Of
a Loan, and how it differs from a vohn-
tary Grant.
vii.
of
a Charge.
W
E come now to confider fome of the indeed does not direftly and in itf;lf,
prcfiippofc
principal Contrafts more particularly ; Property and the Price of Things, but only by Ac-
which. tho' they have been handled ve- cident, Co far as the Pcrfon gi\ ing the Comtni^jon
is
ry copioufly by the Roman Lawyers, yet, fince moft
of what they have faid, has been taken from the Law
of Nature and Nations, may fairly be brought back
to their proper place. Of gainful ContraEls
'
the
chief
^
is a
^ '^
Commifjion
"",
whereby one Man un-
dertakes gratis another Man's Bulinefs, at his Re-
queft, and upon his Authoritj'. This Contraft
concern d to repay to the Perfon receiving it, what-
foever Charges he happens to be at in the Manage-"
ment of it : for his Labour only is fuppos'd to
be ^romii'A gratis. Now, if any Man undertakes
another's Bufinefs, unknown to him, and mana-
ges it with Succefs, the Roman Law allows him
*
an Aiiion for Bufinefs
done, which is founded up-
on,
Here our Author, as has been obferved in another Place, has forgot to mention Donatioju betv>ein Parties living at
Principal Contrails. See his firft Note upon this Seftion.
i>
Mandatum- See what we have faid upon this in
B. 3. c.
9.
A/c, Barbeyrac's NOTES on Chap. IV. . i.
'
Donations or Gifts ought to have been treated of firft; and I wonder this Author has faid nothing of them. I fpeak
here of Gifts among the Living; for Gifts among the Dead are difcourfed of /. 4. c. 9. . 9.
This Author in his Abridg-
ment of the Duties of a Man and Citizen, /. i. c. 12. . 13, 14. oppofes a free Alienation of Property or Gill: to a Contraft.
That which made him not to range Gifts with Contrafts, \vas, without doubt, the great Refpeft he paid the Raman Law ia
that Place, which ncverthelefs calls them fometimes a Contraft, as in Code, /. 2. /. 20. Di his quit vi, metuj'que caufa, gejlufxnt.
Leg.
7. &. 1.
7. t.
39.
De Praefcript. 30. aut 40. annorum. Leg. 8. princ. which, according to Mr. Thcmafius, De Arrhis Emp-
tionunt,
51. is the Effeft of the Carelefneis and Harlhnefs of the Language of the Lawyers at that Time. I ftiali therefore
briefly treat of Gifts among the Living in this Place. A Donation then is a Connaft, by which we transfer freely the Pro-
perty of a Thing that belongs to us, to another Perfon, who accepts the Benefit, whether we releafe it to him the fame Mo-
ment, or referve to ourfelvcs the Ufe and Poffeflion; fo that the Contraft is an Effeft of Liberality, and the Giver aftually
parts with the Property of his Goods before his Death. By the Roman Law itfelf a bare Agreement m.ikcs the Ad valid.
See c. 2.
2. Note 6. above. If the Gift be truly and lawfully made, it cann't be revoked without very great Reafon. Alt^
autem Donationes flint, quitfine iilla mortis cogitatione
fiunt,
quasmie.x \-'i\os appellamus qute
fi
fuerint perfeda, temert
revocari non pojfunt. Perficiuntur autem, quum Donatorfuam voluntatem fcriptis, aut
fixe
fcr'ptis, rnanifeftaverit, Inllit. 1. 2. t.
7.
Dat aliquis ea mente, utflatim velit accipientisfieri, nee ullo cafu ad
fe
reverti, Isf propter nullum tiliam caufamfacit, quam :it liberali-
tatem i^ munificintiam exereeat. Htec proprie Donatio appellatur, Digeft. 1.
39.
t.
5.
Leg. i. princ. Abfenti,
five
inittas,
quifi-
rat,
five
quod
ipfe hnbe/it, ftbi habere eumjubeas, donari rede potefi.
Sed
ft
nefclt
-
Donates Rei Dominus
nonfi', &'e. ibid.
T-'Cg. 10. Non pote/l liberalitas nolenti aequiri. ibid. Leg. 19.
2. 'Tis, for Example, a good Reafon, i. When the Receiver
does not fatisfy the Charges and Conditions upon which the Gi.ft was bellowed. Generaliter fancimus omnes Donationes lege
eonfeQas firmai, illibatnfq; manere,
fi
non ^ quafda^n conventiones,
five
in fcriptis donetioni impofitas, five fine firiptis
habitas, quas Donation!! Acceptor fpopondit, rninine implere voluerit. Cod. 1. 8. t.
54.
De revocand. Donat. Leg. 10. Wc
muft alfo place in the fame Rank, 2. The great Ingr.ititude of the Receiver, viz- If he makes an Attempt upon the Life or
good Name of the Giver; if he has offered to him any great W'rong or Violence; if he has malicioufiy caufed him any con-
fiderable Lofs or Damage; if the Giver, being reduced to great Necefiity, he refufes to relieve him; altho', according to
moft Interpreters, this laft Cafe is not contain'd in the following Law. Si non donationis Acceptor ingratus circa Donatorcm in-
veniatur, ita ut Injurias atroces in eum cffiindat, vel mantis impias inferat, veljaiiune molcm ex inftdiis
fids
ingerat, qu<e non Itvetn
cenfum fubftantiir Donatoris imponat, velvitie periculum aliquod ei intukrit, ibid. We may add alfo,
3.
The unexpcfted Birth
of a Child, which happens to the Giver; for it is to be prefumed, that he would have kept his Goods for his Children,
if he had had any; and fo he gave with this tacit Condition, that if he had any Childi-en, his Gift fliould be nulL
Si unquam libertis Patronusfilios non habens, bona omnia, vel partem aliquam facultatum fuerit Donatione largiius, iff pofies
fiifceperit liberos, totum quicquid largitusfuerat, revertatur in ejufdem Donatoris arbitrio, ac Ditione manfurum, ibid. Leg. 8.
Yet feveral Interpreters maintain that he fpeaks only of the Cafe cxprefs'd, viz- A Gift beftow'd on a Freeman, hy hijn wha
had been his Mailer, and given him his Freedom. See Finnius on the Inflitutes, l 2. /. 7. 2. But were it fo, 'twould be a
pure civil Conftitution; for if we confider the Law of Nature only, the Reafon which authorizes a Revocation here, ought to
be of Force as to all other Perfons. But it is true onl)', w-hen the Giver beftows all his Goods, or the moft Part ; for v.hcii
the Gift is inconfiderable, in comparifon of what the Giver has left, we may reafonably prefume that he may not do it, and
that he had fome Hopes of Children, efpecially if the Receiver is not wcif furnifh'd himlelf 4. A Gift may be revoked ia
part, when the Giver has not referved Goods enough to portion fufh Perfons as he ouglit not to difinherit ; for in this Cafe the
Receiver ought to return enough to make up a Portion for fuch as have a Right, and of which the Giver cann't difpofe to their
Prejudice. See Code l.^.t. 29. De inofficiofis
Donntionibus, faf /. 30. De inojiciofis Dotibus. But chiefly Mr. D a u M a t's Laws,
in their Natural Order. Part 1. /. \.t. 10. ought to he confulted.
^
See Mr. Noon t's Probabil. Jur- I. 4. f. 1 2.
(J
nit. where he diilinguiflies between a Commiflion, and certain Things
which may be confounded with this fort of Contrail, tho' they have no relation to it.
3
The E.xprefiion of the Rman Law, Utilitergerere, fignifies only to do a thing (or the Advantage of him for w hom wc manage,
which Prudence engages us to do, and 'tis likely he would h.ive done himfelf; fo that provided it is not our Fault, we need not
warrant the Succefs, and we have Right to demand all necelTary and needful Expences, tho' the Bufinefs has not fo good an E-
vent M was hoped for. Js autem, qui negotiorumgeftormn
agit,
nonfoluin,fi iffeSlum
babuit negotiutn, quodgejjit, adioae
ifia
utetur.
Chap.
IV.
Of
gainful ContraSs in particular.
48
1
on what we may properly cnll a
*
tacit Cojnmiffion
\
carried on.
W/jy do you undertake a CommiiTion*
as is the
'
Obligation ktwecii a Guardian and
//
you
defign to negleB it, or to make a Gain
of
a Minor
^'. it ? J^l^y do you intrude your
felf
into
my Con-*
II. The old Romans were extrcamly exaft and cerns, and by your pretended
Kindnefs clog and hin-
confcientious in the Difchnrge of this Triift. For der my Dtfigm? Stand
off,
I can get another to da
they looU'd upon it to be founded upon good Na- it for me. Tou undertake the Burthen
of an
Office
tare and Friendfhip
\
the great Bands and Ce- -which you think you can go through with, and -which
nicnts of human Society; and therefore dcfervedly never feems heavy to thofe -who are not light them--
had thofe in Detefiation, who under fuch fpecious felves : This therefore is the
bafeff
of Crimes ; l^e"
Pretences Ihould deceive one who lays himfelf open caufe it violates the two mofi
facred Things, Friend-
to their Mercy, by having too good an Opinion
fjip
and Faith. For no Man commits his
Bufnefsy
of their Probity
''. "
In private Affairs,
fays Ci- but to a Friend, nor trufls any, but whom he thinks
cero, our Ancefljrs thujight guilty
of
the higheR faithful. The
greatefl of
Villains therefore
mufl
he
Crijne, not only him that managed his Commiflion be, who breaks in upon Friendflnp, and at the fame
knavifily for his own Gain and Advantage, but time cheats him who had not been capable
of
being
even him -luho was wanting in his Care ; and there- thus cheated, had he not believed the Villain honefl.
fore
judged the Breach
of
Truft to be as bad as Cic. pro S. Rofcio, c.
38, 39.
'"
Plautus M^rca-
Theft. For where we cannot be prefent our felves, tore, AEl. ii. Sc.
3. 'y.42. A Young Man fays to
the Fidelity
of
our Friends is prefumed to
fupply
our his Father,
"
I have heard you often fay, That
Place ; which, whifoever violates, impugns the Safe-
"
every Wife Man ought, in the firft Place, to
. guard
of
every Man, and, as much as in him lies,
"
look after a Commiffion cntrufted to him.
difiurbs Society. We cannot do every thing our III. For the fame Reafon
'
the Roman Laws
felves ; at fome things fame
are better than others, require, tliat a Cofn?nifjlon fhould be executed
And therefore we contrail Friendjhips, that by mu- witii the utmoft Diligence, altho' undertaken
tual good offices our common Advantages may be purely for the Benefit of the Perfon intrufting
ic
fedfiifficit, Ji
utlliter gejjit,
l^
fi
effeBum nmi hahuit negot'ium, IS ideo,
Jt
itifulamfitljit, iielferviim agrum curavit, etiamji infula
exiifta eji, velfcrvus oblit, av,et negotkrum geftorem.
Digeft. 1. 3.
t.
5.
De negotiis geftis. Leg. 10. 1. Negotium gerentes alie-
mim non intcrvenknte fpecialifaBo [iixArvQX.pallo, i.'iMx. Bynkerjhaek has prov'd well, Ohi. i. -j.) cufumfortuitum praftare non
compelluntitr. Cod. 1. 2. t. 19. De negot. geftis. Leg. 2Z. It is not ib with him who has gotten Poireflion of what belongs to ano-
ther diflioneilly, who has been at fome E.xpences for his Maintenance; for if the Work he has employ'd them in comes to no-
thing, 'tis fo much the worfe for him, for he cann't retain the Thing, till he has recovered his Damages ; becaufe he muft be
thought to aft for his own Intereft only, without any Regard to the lawful Proprietors. On the contrary, he is anfwerabls
for all things that are loft thro' his Negligence ; and the Owner of the things has an Aftion againft him for managing his
Affairs. This is the Determination of the Roman Lawyers. See Mr. Noodt's Probab. Juris, /. 3.
-.
g. I further fay, That
by the L.aw of Nature only, fuch a difhoneft Pofleflbr deferves, in Scriftnefs, to lofe all his Expence, tho' he had fome regard
to the other's Profit, and the Effedl continued fo th.at the Proprietor got by it.
* See what hath been faid above, /. 4. r.
1
3-
5-
note 1 1
S
It is not neceflarv to fuppofe here either a tacit Commiflion, or a Quafi-Contraft, as the Roman Lawryers fpeak. The
great Maxim of the Natural Law is, That we oitght to do no Man a Damage ; and if we have done any, to make it good again.
This Law is fo general, indifputable, and indifpenfable, that it is fufficient to eftablifh all relative Obligations, as well of
Guardians and Pupils, as of thofe who have taken upon them the Care of others Affairs at their Requeft, and fuch as
have faithfully difcharged it. It were cafy to prove it, if the thing were not clear in itfelf. See what is faid /. j. f. 6. . 2.
V
Mr. Barbeyrac's NOTES on
ir.
'
MandatHM, niji gratuitiim, nullum eJi; nam originem ex officio bf amicitid trahit, contrarium ergo
eft officio merces : inter'
veniente enim pecunid, res ad kcationejn, iS conduBionempotius refpiclt, Digeft. 1. 17. t. i. Mandati vel contra, Leg. 1.
4.
*
Tully'i Latin is, In privatls rebus,
ft
qui rem mandatam non modo malitiojits
geffiJTet, fid qu/sftus,
aut commodi caufa, verum.
etitim negligentius, eum majores funmitm admififfe
dedecus exiftimtibant. Itaque mandati conftitutum ejl judicium, non minus turps
quam furti. Credo propterea, quod quibus in rebus
ipft
inter
ejfe
non pojjiimus, in his operie noftrie vicaria
fides
amicorum f'.tppojiitur^
quam qui ladit,
ofpugnat omnium commune prafidium, y
quantum in ipj'o
eft,
difturbat vita focietatem. Non enimpoffumus omnia
per nos agere, alius in alia
efl
re ?nagis utilis. Idcirco amiciti/e comparantur, ut commune commodum mutuis officiis gubernetur.
^lid recipis mandatum,
ft
aut negleBurus, aut ad tuum commodum converfurus es ? Cur mihi te offers,
3" meis commodis
officio.
'
fmulato
officis, (S obftas?
Recede de medio, per alium tranftgam. Sufiipis onus officii,
quod te putas fuftinere poffie,
quod minima
videtur
grave iis, qui minime
ipft
leves
fiunt.
Ergo idcirco turpis hac
eft
culpa, quod duas tes fianBiffmas
-violat, amicitiamiS
fidim ; nam neque mandat quifiquam fere nift
amicis, neque credet ei
nifi
quern fidelem
putat. Perditiffimi igitur
eft
hominis,^
ftmul ii amicitiam
diffolvere, iS fallere eum qui lafius non efj'et, nift
credidiffet.
'
Plautus'sWovls d.vi, Stepe ex te audivi. Pater, rei mandata omnes fiapientes priinum pravorti decet.
See above in 5. 4. c
1
3. /t
7.
>
Vid. /.
44.
t.-j. I. i^.
princ.f \.D- de Qbligat. 6" ABion. Vid. /. 3.
/. 2.
I. \.D. de bis qui not. infajK.
iy
I. ij. t. 1. L-
i.
f j^. D- mandati, &c.
Afr. Barbeyrac's NOTES on
iii.
'
The Words of the Code are. Sua quidem quifque rci Moderator, atque arbiter, non omnia ncgotia,
fedpleraque expropria anim
facit; aliena vero negotia exsBo officio geruntur, nee quidquam in eonim adminiftratione acglcBum ac declinatum culpa vacuum
eft,
1.4.1.35. Mandati, vel contra. Leg. 21. The Interpreters do not agree about the Degree of Care and Exjftnefs, for want
of which the Perfon concerned is authorized to require Damages of him who has undertaken his Affairs, either at his own
Inftance, or the other's Requeft. Some affirm that he is anfwerable both in the Man.agement of the Affairs, and in the
Commiflion, for the leaft Fault ; but others fay 'tis fufficient to attend the Affairs of another with that Application that he
ordinarily does his own. See Vinnius upon the Inftitules,
1. 3. t. 27. 11. num. 2. ^ t. 28. i . num. 3.
and Mr. Hertius's, Pa-
rcemia Juris Germauici, 1. i. c.
35. 2, 3. Nor m.ay we wonder at luch a Difference of Opinions, fince the Roman Lawyers
themfelves do not fully agree about the Nature and Degree of Negligence for which we are reiponfible in moft Contrafts, or,
at leaft, they exprefs themfelves very ambiguoufly in the Writings that we have left us. This Mr. Tbomnfius makes appear at
Isrge in his Difcourfe Printed at Hall in i
705,
entituled, De ufu praBuo DsBrinte difficillimx
Juris
Roniaiji de culparum
pr^fta-
tione inContraBibus. He alfo obferves there, that by reafon of the infinite Variety of Circumlbnces, itis impoifible to fettle
any general Rule, which may extend to all Cafes in this Matter. As for myfelf, 'tis my Opinion, that in what manner focver
we have taken in hand another's Bufmefs, or are charged with their Affairs, we are always obliged by the Law of Nature,
independent on the Civil Laws, tg do all we cn in them, but not more, at leaft, if ws have ngt thruft ourfclves improperly
and
482
Of
gainfulContraBs in particitlar. B o k V.
it
*. Ot this Cornelius Nepos gives us Atticus
*
penfivc to him ^. And die fame holds good of
as a perfect Pattern
''.
He never made any Pro- any Lofs that happens by reafon of the Trnft,
7nife,
but with great Care and Caution
;
for
be but not of fuch a Lofs as is only occafioned ob-
did not think it a piece
of
Genero/ity, but rather liquely by it : And therefore thofe Damages only
Levity, to promife more than he could perjorm. But are to be made up, which diredly proceed from
-when once he had undertaken any thing, he was as the Cunnniffion, and not thofe which happen only
indefatigable in the Prcfecution of
it, as
if
it had by the Bye, whilil the Bufinefs was on foot. To
not been his Friend's, but his own Concern
.-
In fuch this Purpofe is that Paffage in the '
Digefis
S :
a Cafe he look'd ttpon his Reputation to be at flake, 'The Agent jhall not account to the Perfon imploying
than which nothing was more dear to him
".
hhn all the Expemes, tho' perhaps
fme of
them /je
But if we hope to fucceed
well in gi^ ing a had not been at, were it not
for his CommiiTion
%
Commijjiin, we ought to confider and form our
as if
he has been plundered, or jhipwreck'd, or put
Opinion of the Man from his paft Diligence, and
to Charges by his own, or his Servant's Siiknefs :
the Tenor of his former Life : For he that trufts a For fuch
Expences as thefs ought to be imputed tt
profligate Perfon may
thank
himfelf for his Dif- Chance, and not to the Commifjicn. Indeed, whsa
appointments, unl.fs he
particularly takes upon a Man of his own accord, upon no otlier Motive
him to be more diligent than ordinary
%
and is than his own Good-will, takes upon himfelf die
canable of bein"- fo. We read a pleafant Story Management of anodier's Buiinefs
%
he is fup-
of' a Man
^
who had fore Eyes, and came ro a pos'd willingl)- to ri.n the rifque of all Cafualries,
Horfe-DoSor for Relief ;
the JDoftor anointed his that unexpectedly happen in human Aflaivs. But
Eyes with the fame Ointment he us'd araongft his the Cafe is aker'd, when a Man is commanded to
Horfes ;
upon which the Man falls blind, and the m.anage another's Bufin.fs
;
for there he that com-
Caufe is brought before the Judge,
who acquits raands is concem'd to bear him harmJefs, fmce;,
the Piiyfician jFor //
the Fellow, fays he, had not in this Cafe die Perfon in Ccmmijfm liad not Power
been an Afs,
he had never
applied himfelf to a to aS odierwife. But when a Man imdeitakes a
Hyrfe-D'iBor.
Bufinefs in its own Nature hazardous and dange-
IV. On the other hand, the
^
Agent ought to rous
'',
he is fuppos'd
(
unlefs he cxprefiy declares
be repaid wiiate\'er Charges he has been at in the againft it ) to take upon him die common Acci-
Ex;cuaon of tae Commiffion.
For ha\ ing promis'd dents that ufually attend fuch a Buiinefs K
Nothing gratis but his Care, Diligence, and Fi- V. It is a celebrated Queftion, IVhether Com-
delity, a tacit Compact is fuppos'd to ha\e been miflion can befutisfied ly an Equi'vahnt ? which we
made for the Repayment of Cliaiges : And indeed find elegantly debated in GeSim
'. ' The Queflionf
it would be hard to render a Man's Kindnefs ex- fayshe, is. Whether havingaCoiiamii^iongiven, and
"
Orders
and unneceflarily upon" a Thing, in which we could hxve no Profpeft of Advantage, or the Nature of the Engagements, cither
exprefi or tacit, into which we are entred, does not require a certain Degree of Abilit)- and Accuracy, whether we can atcaia
to it, or not. For I underftand, by what we are capable of, all that a Man can da for himiclf in the Things which he is moft
concerned for. ^See
6. note z following. ) But let it be well underftood, that we muft not extend this beyond the End
and Nature of a Contr.;l ; for we never engage to take care, or be at Expences extraordinary, nor to ncgleft other Affairs
lefs important in themfelves, to attend other Mens, as perhaps one would do, if he afted for himfelf Thele Principles being
laid down, 'f\vill not be hard, in my Opinion, to determine, after an attentive Examination of Circumllances, when Men
are refponfible for the Faults they have committed, in relation to Contrafts.
*
His Words arc, ^licjuid rogabatur, religiose promilteb/it, quod non HberaJis, fed Inns arbitraiatur f^licerf, quod pneftare
mn pojjit. Idem in Hitendo, quodfemel admi/iffet, tanta erat ciira, utmnmnndti'.:im,fedf:iamremvideretur agert. Hunqutm
fufcetiti
mgo'.ii ei pertrtfum
eft,
fuam enim exiftimationem in ea re agi putnbat, qua nihil bahehtt earius.
3
Our Author hid better have obferved. That, when we do not know the Chirader of a Perfon, we cann't require
greater Care than he ufually bellows on ^vhat he loves beft ; for he cann't be though.t to engage himfelf farther j and it ic
not his Fault, if we have too good an Opinion of him, efpecially if he hns not contributed to beget it.
Mr. Barbeyrac's NOTES on
iv.
*
The Words are, Non ovinia, qua impen/ur:/! mn fait, mandatori impulabit, veluti quod fpoliatus
fit
a lalronihus, a'Jt
nnufra^io res amiferit, vel lan^iiore Juo fuortimque apprehexfus, qtitedam erog,iverit. Nam bttc magis cnfthus qtiam mandatt im-
ptitari oportct. See alfo Mr. D a u m a t's Ci\'il Laws in their Nat. Order, Part i . /. i . /. 15. Sect. 2. 6.
*
Bat when he makes a Journey on purpofe, as we fuppole, the Lodes which happen by Chance ought to be look'd upon
as the real Confequents of the Execution of the Contraft ; far if he had (laid at liomc, he had not been cxpos'd either xo
the Tempeft or the Thieves. And fo they ought to be put among the Expences of attending upon his Commiffion. An-
other thing is, when he falls fick ; for it is not a fufiicient Proof that it was an Effcti of the Fatigues of his Journey ; but
if it were, he ought alfo to repay his Agent the Charges of his Sicknefs. But I am pofitivc that he ought not to rcgaid
what it coil him more than if he had been at home. Sec the following Note.
3
Upon v/hat is that Prefuniption grounded ? I fliould rather aflcrt, that he thr.t takes upon himfelf a CommifTion, will
execute it at his own Chirge ; for, according to this Author, here is no Agreement to give his Labour only ; and fincc Mif-
fortunes m,iy happen every D^y, the Commiffion may be
ycrf
chargeable, if it be upon (he Actsunt of the Agent. So that
I do not fee that he enap.ges himfelf to bear the Loflcs to which he is expofed, more than the Charges he mull be at in difcharging
his Commiifion. The Truth is. We may on the contrary hold, that no Man willingly runs the Rifque of unforefeen Acci-
dents, which, it is probaole, would not have happen'd to him without the Commiilion, efpecially if he has not fairly con-
fented to it, which is not common. Such as accept Commiffions, in the Execution of which ihey are fubjsft to the like
Accidents, will not, nor can be ierviceable in that Cafe ; and thofe who have Power and Will, may as well do it out of
mere Liberality, fo a' to require no Satisfaftion for their Misfortunes, nor any Repayment of tlie Expences they have been
at in exccuring their Commilfion.
4 Not at ill, unlel's he fo declar'd. See the foregoing Note. On the contrary. The more dangerous a Tiling is known t
be, we h ve the lefs Reaibn to believe that he would meddle with it, if he did not think he fliould be indemnified froni
all ill Accidents.
Vid. Jac.
Gothofred. ad Leg. 23. D. de T>iv. reg. juris.
> //.' Vitakxx\c\, c. i;. Tcr. And. Aci.
4. Sc.\.v.
5,
i^c.
i S.I.IUS, Rofar. Per]', c. 7.
Maniatariui, Sec. ( Sec Grot. B. z. c. 12./ 13. B. 17. t.\. I.
26./ 6. D.Man-
Jati, &o.
b
Wid. Mornac. W. /. 26./ 6. D. Mandati, iS I. ly. t. 2. L- ^i.
f.
^. pro Socio.
i
Z,. i. f. 13.
Mr. Barbeyrac's NOTES on
^
v.
His Words are. In Oftifiii capiendis, cenfendisyjiidicandifque, qure Grrer, lC*.'5n'w'7*> Philofophi adpellant, quarifolel, an negotit
tiii dato, isf quid tmninofacertt dejinita, contraquidfmre d(b(as,fi
eofaaovidcri pojjltrsta'tntiira profptriui, (.xqiieutilitauejus,
pi
CII A p. IV.
OJ
gabifiilGoiitracls inparticular.
"
Orders how to manage ir, you ought to ntt
"
counter, it it feems for th.c Advantage of him that
*'
gave it ? Tliofe that hold the negative, .
argue,
"
that many ha\e determined to iia\c tlieir Bufinefs
"
done after fuch a particular manner ; and thcre-
"
fore he whofe Bulinefs it is, ha\ing deliberated
^'
and fixed upon a Method, it ought not to be
*'
done otherwile, altho' fome fudden unexpected
"
Accident flio'.ild promife a better Illucj for fear,
"
in cafe of Difappointment, the Guilt of Difobe-
"
ciencc, and the Punifliment due to it, lliould un-
"
avoidably follow : Whereas, (lioukl the Thing fuc-
"
cced right, Thanl^? be to Providence : But yet an
"
ill Precedent would be introduc'd, for breaking in
"
upon well-laid Cor.nfels, and the Sacrednefs of a
*'
Coiiimij'fion" Others, on the contrary, are of
Opinion,
"
Tliat the Inconveniences that may hap-
"
pen, upon acting Counter to Order, ought to be
*'
compared with the Probability of fucceeding ; and
"
if the former appear lighter and lefs than tlie lat-
*'
ter, then ouglit we to proceed accordingly
;
for
*'
fear of lofing an Opportunity, which Heaven in
"
this Cafe feems to offer : Neither need we fear
**
fuch a Precedent, if thofethat follow the Example
"
never do it, but with the fame Reafon. " Then
follow fome Precepts of Prudence,
"
Particularly,
"
Regard is to be had to tlic Temper and Nature of
"
him from whom tlie CcmrKifjlon is feceiv'd ; that he
"
be not of a cruel, rough, untractable, inexorable
*'
Difpofition ^, for in fuch a Cafe, the
fafefl
way
*'
would be to flick
to his Orders." He adds as an
Example, Craffus
Miitianus,
"
Who fent an
*'
Architeft for the greater of two Beams, to raife
"
his Battering Ram with ; but the Archited think-
"
ing the leiVer the fitteft, brought that ; upon which
"
Account Miitianus order'd him to be fcourged, for
**
he imagined that Difcipline would be trampled
"
upon, and Authority defpis'd, if a Man, under
485
"
Command, inftcad of obeying die Orders of his
"
Superior, fliould
impertinently interpofe his own
"
Judgment
:"
Tho' this is to be faid for the
Arciutea:, that Mntiatius (ending a Man skilful in
the Art, and lignifjing to him what Ufe he defign-
ed the Beam for, feem'd, in a manner, to advife
witli him about ic
*
^.
Onthe other fide, we have
an Example of Mildnefs in the Emperor Adrian
'^
;
for when the People had demanded fomething in a
tumultuous manner, he order'd the Cryer to pro-
claim SiLnce. But he feaiing the Confequence of
fuch an harfli and unufual Word, ftretehcd out his
Hand, and ha\ ing thereby procur'd Silence, cry'd
aloud, "This is what the Emperor would have
;
with
which the Emperor was not oftended.
"
One time,
"
when Coimmdns found the Bath too warm, he or-
"
der'd the Keeper of it to be thrown into the Fur-
"
nace : But the Ser\ ant who had received the Or-
"
der, tlirew in a Sheep-skin, bv the Stink thereof to
"
induce tr.e Emperor to belie\e his Order to be put
"
in Execution." I.amprid. in Conimodo, c. 1 . Gro~
t'us
^
is of Opinion, that a Commifjion may be dif-
charged by an Equivalent, provided it appears
that it was not prefcribed to be manag'd under any
particular Form, but under the general Confidera-
tion and Profpeft of fome Advantage, which may
be obtain'd as well one way as the other.
In fhort, the State of the Cafe is this : In fome
Commijfions the Bufinefs only is fpecified, and the
Management of it left to the Difcretion of the Agent :
Sometimes the Management too is prefcrib'd, but ra-
ther by way of Advice, as feeming beft to him that
gives the Com7niffton ;
but yet fo as not to exclude
the Agent from ufing his own Method ^, if it fhould
feem beft at the Point of Execution. But laftly, The
Method is fometimes fo ftridly prefciibed, that the
Agent cannot depart from it, l.t what will happen.
Here 'tis plain that a Commifjton is fatisfied with an
Equi-
fui
tiii id negotium mnndavit ? Aiueps qtdtpio, i^
in utramque partem a prudentibus viri! arbitratn eji- Sunt enim nonpauci, qui
fintentlim fuam una in pane dcfiKerint, l^ refemelftatuta, delibcrataquc ab so, cujus negotium id prafaii/Tiqae ejjit, nequaquam
futava-inicontra diSliim ejus ejje faciendum, etiamfi repentinus aliquis cafus rem commodius agi pojje poUiceretur ; nc, ft
/pes jc
fellijj'et, culpa imparentiie, I3' pcena indcprecabilis fuheundu cjjit ; ft
res fort}
melius vertijfet, Diis quidcm gratia bahenda, fed
ex^
etnplum tamen intromijfum videretur, quo bene cenfulta confilia Religione mandatifohta corrumperentur- Alii exiftimavcrunt
in-
tunmoda prius, qua: metuenda ejfeitt,
ft
res gefla aliterforet quam imperatum ejl, cum emolumento fpei penfitanda ejfe, y
f
ea le-
viorn, minoraque, utilitas autem contra gravior if amplior jpe quantum poteft firma oflcnderetur, turn pojfe advcrfum maniata fieri,
cenfuerunt ; ne oblata divinitus rei bene gerendre occafio amitterctur. Neque timendum exemplum ?ion parendi crediderunt,fi
rationes
ikntaxat hujufmodi aon adejfent. Cum primis autem refpiciendum putaverunt ingenium naturamque illius, cujus res, praccptumque
ejfet, neferox, durus, indomitus, i/iexorabilifque
fit,
qualia fucrunt Pofthumiana imperia isf
Manliana ; nam
fi
tali Praceptori
ratio reddcndafit, nihilfaciendum
effe
moniierunt aliter, 'uam praceptum
eft.
But our Aulhor did not underftand thefe Words,
Sunt enim non pauci quifententiam. Sec. for he .illedges them as the Foundation of their Reafons \vl>o held the Negatives, as if
they fignified. That there are many Men, who having efpoufed one Party, will never forfake it, is'c.
whereas J. Gellius fays
only. That there are Ibmc Men, who determine in E^'eQ. Pro and Con in the fame Queftion, i^'c. we ought to obferve, that
in the Sentence which begins with Ncquc timendum exemplum, &c. there is fomething corrupted, tho' the Senfc does not clearly
difcover it. See
J.
Fred. Gronoz'ius^s Note upon it.
'
Mr. Montaigne fpcaks fomething to this Purpofe ; blaming Two French Ambafladors, who under a Pretence of not en-
gaging the Mailer on the worll Side, would not give him a true Account of Affairs, and then goes on :
"
However that be, I
'
woiilJ not be fo ufed in my low Sphere. We are ready to withdraw Obedience upon every Occafion, and ufurp upon our
'
Mailers. Every one afpires naturally to Liberty and Authority, and therefore to a Superior no Advantage is to be fo prized,
"
as fmcere and native Obedience. The Office of a Commander is ruin'd, if Men mr.y obey at Difcretion, and not thro' Sub-
'
jeflion' ( which is J. Gcllius\ Notion, who fays, Corrumpi is' dijfolvi ofiicium omne imperantis ratus,
ft
quis ad id, quodfacere
"
pijfus eft,
non tbfequio debito,
fed confilio non defiderato refpondeat) as Crajfus Mucianus fliews, ie. But if \ve ought to confi-
'
der that fuch a if rift Obedience belongs only to pofitive' and precife Commands, Ambafladors have more free Orders, which
"
in many Things depend principally on their Man.igement. They don't barely execute them, but frame and tafliion their
"
Mailer's Will according to their own Judgment. I have known fome Perfons aftjng by others Commands, reproved for fol-
"
lowing the Iiiilruftions of the'r Kings Letters, rather than the Opportunity of difpatrhing Aflairs. Men ot Underftanding
Liy.t. i. l.ult.
f.
I. D. Manduti.
k
Which^arr/^r takes Notice of in his Diflertat. </> rf//f/oM /(<///. Commodatum
Mr. Barbeyrac's NOTES on
vi.
'
The Roman Law defines Commodalum or a Loan thus, Commiidata aulem Res tunc proprie in'tlligitur,
ft
nulla tnercedt
acicpta, aut ciitflituta. Res tibi utenda-data
eft,
alioqui merecde interveniente, hiatus tibi iifus Rei viictur : Gratuitum mini
ejfe
debet commtdatum.
Inftit. 1. 3. t. 15. 5
2. ;- e. A Thing lent is properly then, when a Thing is granted to thee to b
uied, without any Reward accepted or agieed for, othervvife if there be any Reward, the Ufe is hired, for Lending is fr-a
Sec Mr. D A u M .\t's Civil Laws in their Natural Order. Part. i. 1. i. tit.
5.
^
The Digrfls
thus fpeak in this Cafe, Alias tamen [is, qui u!ende?n aceepit']
exrtHJfimam
dilignitiam cuftodiendte rei
pr^ftart
compellitur, nee fufticit
ei eandevi ditigetttiam adhibere, quam fuis rebus adbibet,
ft
alius diligcntinr cuftodirc poterit, 1.
44.
t.
7.
t)e Obligat. & Aflion. 1. i .
4.
Here let us apply and explain at the fame Time what we h,avc faid,
j. Kite \ . If we coii/i-
der the Thing in itfelf, he, that has borrowed a Thing, is bound to take no greater Care of it than he does of fuch Thing*
of his own, a,s he niort cftecms ; I fay, as he moft eftcems, becaufe we may obferve, thit the mcft negligent Pcrfons are very
careful of fome Things, which afTcft them much. Their Carc!efnefs ufually iboiit their Affairs proceed? from this, that they
do not afteft them enough to make them rcfnlute to conquer their Inclination to Eafe, or to divert them from foroe Eufmef*
they are about, or to keep tlic:-p. fro.-n fome Pleafure, tlut they love better. As to fuch Objeflj as offer themfclves to their
Embraces, or when fomething extraordinary ftirs them up, and rou/ei them, they know how to put forth thcmfciTCs and tak*
good Method;, and juil Meafures enough, unlefs they be Men very dull ; fo that the Rule Igivc, fcrvcs not to authorize ores-
cufc their Negligence. Everyone has commonly Care enough of the Affairs and Goods of injliier, when he docs as muchi*
he would do for himfclf in Matters of the greatell Concern to him, .ind I require fuch a Degree of Exaftnefs, whereaj the Law-
yers allow Men to come fhort of it in fome Contracts. A Man cann't difpofc of another's Interelb, as he may of his own ; and
fo when he has the Affiiirs or Goods of another in his Hands, he is thought to be eng:!ged not to ncgleil any thing that concerns
them. But when he hath enlarged his Care and Diligence fo far, 'tis all our Intercil; can require, if he is not evidently en-
a;aged in ally thing more ; but it the Care of our own Goods and Aliairs fo interferes with the Care of another's Good^ nd
Affairs, that we cann't attend both at the fams time, it is natural for the firil to prevail, every one being more thoughtful (all
Things elfe being equal) of himfelf than of others ; fo that this Order ought not to be reverfcd, un'^fs It be to fatisfy fome fpc-
tial
Engagement,
cither exprefs or tacit. We rvill now return to the Contnift, of which he is trciting. I fay the.n, thataltho'
a Man be not mindful of his own Concerns, but abandons all, yet is he no lefs anfv.er.-ible for l.in Negligence, when he has hurt,
or loll what he has borrowed ; for it is certain, that if fuch a Thing had belonged to him, and he loed it much, or had feme
extraordinary
Reafon to keep it well, and do all he could to prcferve it, he would have taken more Care of it. But when he
has done all he can in this Cafe, the End and Nature of a Loan, confidcfed in itfelf, can require no more of him, the' other
more (it and wilcr Pcrfons might have managed better, and iecurcd it more from Mifchances, unlefs thore be fome tacit Agree-
ment, not only to indemnify the Proprietor, in cafe the Thing borrowed fliould be ftolc or much damaged, bus alfo to pay foe
it, if it happen to pcrilli in our Hands, efpecially if it be by our Fault ;
provided, that it might have been fafe in the Lender's
Hands, and indeed few Perfons will lend otherwife, efpecially, if they fu ficr by the I.afs. Vvc bear it, tho' with Trouble, aiid
re lineafy to fee a Thing defaced or abufed, provided we can make ufe of it as formerly, or cart rcilore it at a fniall Charge
i
but when 'tis quite fpoiled, or loft, we trouble not ourfclves in the le.ift to didinguilh, whether it was by the Fault c&
him, to whom we lent it to do him a Pleafure, or not. We believe it fuilicient to confider, that il he had taken Care of it, it
had efcapcd that Accident, and that it was not our fault, that it was expoffd to it, while it vyas in the Hands of hiiu t,h.at u.^-A it.
J
Ti
C
H
A P. IV. Ofgawfnl ContraBs
hi yarticular
.
485
tliat
prudent Men keep their own ^
;
'
that it be an urgent Neceffity a Loan ought
^
not to be de"
not put to any other Ufe, nor made ufe of any manded before the Time
=.
farther than the Perfon lending d.fign'd it
^
j
hftl)'. Let us fee tlierefore in what fuch a Loan as this
that it be retiun'd in the fame Stare and Condition, and
''
a Grant at Will and. Pleafare dirfer and agree,
as when it was borrowed
<^
; indeed what Detriment In refpeft of the Object and the Ufe they a^rce; for
it nccefl'arily receives
'^
from the ordinar)- ufe ot it, the fame Thing that may be lent, may be granted
need not to be repair'd, for that the Owner is ftip- during Pleafure, and the Ufe, in both Cafes is
pos'd to give gratis
^.
Befides, if I lend a Thing gi\'en gratis. But they differ, in that the Loan is
for fuch a certain Time, and in the mean while by a Contiacl, the Grant is notj the /o!'/er obH^atory
fome unforefeen Accident wan: it my feU", tlie other on both Sides, the latter only on one. The Loan is
is obliged to dcliwi it immediately upon Demand: given for a certain Time or End: the Grant only
For no Man is prefum'd to lend his Goods, but fo during the
*
Will of the Giver. The R:cei\er of
long as he can convenientl)' be witiiout them. And the Lean muft make good all Damages ; the Re-
he muft be either very carelefs, or have a Delign to ceiver of the Grant only thofe that happen by his
'
impofe upon another, who le)uh thofe Things wiiich Kna\'ery, or grofs Negligence S.
he is likely to want himfelf. And therefore a Loan It may indeed be doubted, whether the Receiver of
for a ceitain Time is upon Condition, that the a Loan is bound to iland to thofe Chances which it
Ov:ner fliall not, in the mean time, have urgent was not in his Power to prevent, and this
*"
is gene-
Occafion for the Thing himfelfi but without fuch rally held in the negative
h.
But, in my Opinion, we
ouglic
J
To life it othcrwife is a kind of Robbery according to the Rum.m Lawyers, whofe Exprcflions here arc a little extravagant.
'^ive is, qui rem utetidnm accepit, in dlium ufiim earn tmnsferet, quam a/jus gratia ei data eji, f"rtum committit ; vcluti
fi
quis ar-
gentum utendum aaeperit,
quafi
nmicos ad ccennm invitaturus, iS id peregri fecum tulerit: aut
J:
t/uis eqiitim ge/landi c.iufd commo-
datumf.bi
longius aliqua duxerit; quod t'eteres fcripfentnt de eo, q"i in aciem eqnum pcrduxijfet. Inititur. 1. 4. t. i . De obligation.
qujE ex delifto nalcuntur, . 6. But the fame Lawyers add, that if the Owner of the Thing borrowed permits us to make an-
other Ule of it, than was cxprcfly agreed for, and knows what is done, he 1 not then to blame. Placuit tamen eos, qui rebus
commodatis aliter utertntur, quam utendas acetierint, itafurtum committere,
Jife
intelligant id invito Dominofarere, eumque
fi
in-
tellexijjct, non permiffurum; at
fi
permijfurum credant, extra crimen videri, optima fani difiinSlioiie, quia furtum f,ne affellu
fu-
randi nun committitur. Inltitut. ubi fup
7.
* The Words of the Dige.ls are, S' reddita q-.iidem lit res commodata,
fed deterior reddita, non videbitur reddita,
nifi
quod in-
terefi, frajictur- Lib. 13. t. 6. Comod. vel contra, 1.
3. i. Si commodavero tibi equum, quo utereris ad certum locum,
fi
nulla
fulpa ttia interveniente, in ipfo itincre equu: deterior
f
alius
fitt,
non teneris commodati; nam ego in culpa ero, qui in tarn longum
iter commodavi, qui eum laborem fujlinere non potuit. Ibid. 1 23.
s
Without which he muft take other Meafures to provide himfelf. Sicut aufem voluntatis,
fc? officii
magis, quam necejfitatis
eft
commodare, ita modum commodati, finemoue pi afiriberc, ejus
eft,
qui beneficium tribuit. Cum nutem id fecit (id
eft
poflquam
commodavit) tuncfinem pr/efcribere is' retro agere, atque intempeftive ujnm commodata rei auferre, non oficium tantum impedit,
fed
iff fufcepta Obligdtio inter dandum, accipiendumque, geritur enim Negotiutn invicem. Igiturfi pugillares mihi commodafti, ut debitor
mihi caveret, non reSle tacies importune repctendo ; nar.ifi negaffet, vel emijfem, veltefles adhibuiffem. Digeil. ut fupra. Leg.
1
7 . 2
.
*
So the
Digefts
dircfl, Preearium ejl, quod precibus petenti utendum conceditur tamdiu, quamdiu is, qui concefftt, patitur.
Lib.
43.
t. 26. De Precario, Leg. i. Princ.
^ So the Digefts order, Illud adnotatur, quod culpam non preeftat is qui precario rogavit,
fidfolum dolum praftat ; quanquam qui
tommodum fufcepit, non tantum doluin,
fed culpam prafiat. Nam immerito dolum folum praftat
is, qui precario rogavit, cumtotum
hoc ex libcralitate defcendat ejus, qui precario
concefftt, i^ fatis
fit
fi
dulus. tantum praftetur. Culpam tamen doloproximam conti-
Tteri, quis merito dixerit. Ibid. Leg. >;.
3.
See Cujacius O^/^rf. 4. 7. But Mr. Thomasius in his Difcourfe, Deculparum
Praftatione in ContraBibus, Chip, i .
4S, ksc. (hows, that the Diitindlion between a Loan and Grant at Will is grounded
only upon the Subtilties of i\iz Roman Law, and that there is fomething of Humour, in the Reafon, that Ulpian alledges here,
as well as in the Compariion, which he ellewhere make.s between a Grant at will, and Gifts between the Living.
*
They are grounded upon this Law among others : ^lod vero SeneSlute contigit, vel morbo, vel vi Latronum ereptum
eft, aut
quidfimile accidit, diccndum eft, nihil eorum efje
impuiandum ei, qui commpdatum accepit,
nifi
tliqua culpa interveniat.
Proinde
et
fi
i?icendio, vel ruina aliquid contigit, vel aliquod damnumfat
ale, non tenebitur,
niftforte, cum
poffit
res commodatas falvas
fa-
cere, fuas prtetuUt. Digeil. Lib. 13. t. 6. Commodati, vel contra. Leg. 5. 4. See alfo. Leg. 19. l^ I. 44.
/. 7. DeObli^at.
i^ Aiion, I. I. 4.
But from thefe Words,
Nififorte, cum
poffit,
&c. feveral Lawyers infer, That in a common Danger a
Man ought rather to fave a Thing borrowed, than his own Goods ; and they add this Provifo, If the firft be not of lels Value.
Whereupon Mr. Titius maintains, that thefe words, fuas pratulit, mean not. That he chofe rather to fave his own Goods,
than what he had borrowed, but only that when he could have faved both, he took not care of any but his own, and .fo it be-
came his Fault. Indeed all that goes before, iliews, that Ulpian will have the Borrower anfwerable for his own Negligence
only, and not for Mifcafualties, which he could notforefee; fo that thefe Lift Words muft be explained by fuppofing fome Cir-
cumftance, by which it may appear, that the Borrower was in fault; for he is not always obliged to prefer the Prefervation of
another Man's Goods before his own. The Interpreters generally hold, that the Thing borrowed ought to be of a greater
Value; tor otherwife, if we fave it with a Prejudice to our own Goods, he that owes it ought to pay the Overplus. But this
Determination is plainly falfe; for upon what Account is he, to whom the Thing borrowed belongs, obliged to pay the Value
of that which is loft, to five his? He is in no wife the Caufe of the Damage received; and he has not promifed to indemnify us
in cate fuch a Thing happen;, which are the Foundation of every Natural Obligation to make good the Lofles of any other
Pcrlon; nor is there any Civil Law that authorizes fuch a Determination. And, indeed, who is there who would rather fufFer
his own Goods to be loft than preferve them, on the Condition of paying a Thing of a greater Price, than what he facrificcd,
to (ave them r L:i,ftly, fuppofe, that the Borrower fhould prefer the Prefervation of his own Goods before what he has borrow-
ed, altho' they were of Icfs Value, 'twould only follow from thence, that, fince he has only ufed his own Right, the Owner of
the Thing bor)-owed, can lawfully demand nothing in this Cafe ; as on the other fide, if he neglefls to ufe his own Right, he
can lay the Fault on himfelf only. But it is ridiculous to affirm, that, becaufe he has preferred the Saving of the Thing borrow-
ed before his own, that the Lender ought to account to him for it, and make good his Lofs, fince he recovers no more than his
own. Wherefore Mr. Titius concludes, that as often as it happens, that there is not time to fave Two Things of equal Value,
and alike expofed, which ever of them he ferves, 'tis fo much the better for the Owner, and fo much the worfe for the other.
Obf. on Lauterbacl:,
Obf. 392.
Moreover, the Author before quoted, alledges a Railage in Virgil, where the Word, Pnefcrre, bears
much the lame Senfe, by a like Figure, as he affirms it doth here. Mr. Noodt makes ufe of it in his Obfervat, /. 2. c. 15. to explain
another Law taken out of Ulpian, 'tis in Lib. 12. of the jEneids, where
Juno
fpeaks to the Nymph Jitturna, That ilie was
loved
a
L.
1
3. t. 6. 1.
5. f.
5. D. commodati. b Vid. Val. Max. 1. 8. c. z. f. 4.
And Gsllius, 1. 7.
c. i ;.
Vid. 1. 1 3. t. 6. 1.
5.
i. 8. in
fin.
D. commodati, iff 1-
47.
t. 2. 1.
54.
f. 1 . Dcfurtis.
c
Vid. 1.
1
3. t. 6. 1. 3-
f. i /> commodati.
a
_^jj_
1. ult. D. commodati. c
Vid. D. ubi
fup.
1. 17. f.
3, 4
D. commodati.
^ Preearium. Vid. WifTcjiiback ad
D. Difp. 24. f.
19.
b
p'iJ, I.
,
3. t. 6. commodati. Sec. i^l la.iffl 44.
t. 7. 1. i
. f. 4- D. de oblig. iif tia,
Sff
^%6 Of
gainful ConttYiBs in particular,
B o o
k V.
ought to diftinguifh, whether or no the Damage had may be pvefiim'd willing to run the Rifque cf them*
happen'd,
if the Thing had continued in the Owner's And thus I think that Law t!ie 1 8 . prin. and 1. \-.
f. 4.
Cuftody
=>
;
for if it had, no Reftitution is due, but & 7.
D. mnmodati ouglit to be limited.
Neither can
if it had not, it feems due in Equity
; for otherwife I well approve of what is faid in /. xix. D. diEi. tit.
a Man's Generofity and good Nature might be too which does not feem to agree with what is laid in
expenfive to him, if, befides
'
the free Ufe of his l.xn.f-i.D.dici.t/t.
But yet if the 5on-ou'e/'
when
Goods, he muft be depriv'd of the Perpetuity of he might have fav'd the Loan, preferves fomcthino'
them, which he had not been but upon this Account, more \aluable of his own, he becomes rcfponfiblc.
Nor is there any Reafon why he, rather than the For tho' no Man can blame him for lettinf^ that pciifh
other,
'
fliould bear the Burthen of the Misfor- which was lefs valuable, yet fince it mio-ht have been
tune, fince the other
"
was the Occafion of it. fav'd, and was loft for the Benefit of the Borrower
The Roman Law
^
gave the Lender Damages, if the there is no Reafon, why the Lender fhould iland to
Loan was ftole ; and yet fuch a Robbery might be the Lofs
<^. '^
On the other fide, it is but reafon-
committed without any Fault in the Perfon robb'd. able, that if any Expence has been laid out uixin
Indeed if a Man, by Fire, fliould lofe all, and be re- the Loan, bcfidcs what was neceflary for die Ufe 0^
duc'd to extreara Poverty, it would be inhuman to it,
"
theOa'K^r fliould repay it
f^.
demand the Value of the Loan ;
and fince Fire, Ship- VIL
'^
A Charge is
'
wlien we cominit to anotlicr'*
wreck, and fuch Chances ofteii happen, the Lender Truft and Cuftody any Thing belonging to us, to
bs
loved by her Husbmd better than all his other Miftrcfles, becaufe (he was troubled at, and perfecuted him with all her Force,
Scis, ui te cunais PR^TUL E R IM. See Servius, who alfo alledges a Paflage in
Sa/uJ! of the like Import with
i^ Cur-
tms's. Lib. 6. c. 4. r.um. 18. Mare Cajfiam dulcius ctcteris. The Cnfpian Sea is fwecter than tlie other, as if thev were a cer-
tain Sea of fweet Water. See the x'b't of Thinking, Pmtz-c. 10, (yV. where it is proved, thst in Comparative Propofitions,
the Pofitive doth not always agree with both Members of the Comparifon. Air. N o o d t treats upon tliis Matter more at large
in his Juliui Paului c. 7.
where he produces other Examples of like Nature. But notwithftanding all this I do not think it ne-
ceflary to join in the Explication of Mr. T 1 t i u s upon thefe Words.
A'//? furtc cum pojjit res commodatas falvas facere, funs
fnetiiUt, which is alfo found in the Receptee Sente/iti^ of Julius Paulus, 1. 2. t.
4.
3. with this Difference, that there he
reads, rem commodatum i^ fxnm,
the Singular for the Plural, as if this Maxnn had pafled into a general Rule, that every one is
refponfible for the fmalleft Faults (culpa Icvijfima
)
in fuch Things, as are borro\ved for his own Advantage only. (See Dige/r.
Lib. 13. /. 6. Leg. 5. 2.) The Lawyers look upon it as an Omilfion, which amounts to the greateft Fault and Neglect for a
Man to prefer the Saving of his own Goods before what he has borrowed, tho' there was no way to preferve both at the fame
time. It is fufficient according to them, that he might have faved another's Goods, if he would, and they have no regard to
the Concurrence of the Intercil of the Owner, who hath lent, and that of the Borrower. If LUpian had only ainrmed, that the
Thing borrowed ought to be paid for, when it might have been fecured, as well as a Man's own, he need not have added that
Reftriftion, which was underftood of itfelf It had been fufficient for him to have fiid, Nijt forte res commodatas Jh/vms facere
ptuerit, fince, whether he hath faved, or no, the Thing belonging to us, that Circumftance alters not the Nturc of the Fault,
fince the Thing borrowed might at the fame time be faved. We then fee that the Scnfc of the Words mentioned, comes to this
:
At leaft, if he might have faved the Thing borrowed, whereas at the fame time he (ufier'd it to be loft. But here the Lawyers
are not aware that they make a fpecial Cafe, which mull be determined by fome other Principle than their Culp/t kvijjima, and
fince they will have the Owner of the Thing borrowed to bear the Lofs, when it happen'd by Chance, and without the Fauk
of the Borrower, they ought to efteem, as a Thing of the greateft Force, the Impoflibility of faving the Thing borrowed, v.-ith-
out facrificing our own Interefts. Wherefore let us confult what is faid Note 2. of this
, where we fliall find more natural and
more coherent Decifions of this Mutter.
9 This Reafon, Mr. T i t i u s, Ovfcr. on Pufendorf, 365.
fays, proves nothing, becaufe the Lender knows well, or at leaft
ought to know, that thefe fort of Ai-ci.'euts may happen, and fo tacitly ccnfents that they be fubjeft to thefe Haz.ard$, Dangers,
and Misfortunes. Otherivife it may be .mfwer'd, that the Borrower had better have hired the Ule of tjie Thing lent, than to be
eng.--ged to pay for the Thing borrovvcd, if it be fpoil'd without his Fault. But bcfidcs, that there is almoft ever a tacit Engage-
ment, contrary to what is fuppos'd, as I have .'aid Note 2. we ought to believe that the Borro^vers live at cafe (for if they are
in Streights, we may prefume tiwt the Owner of the Thing borrowed, ^vould generoufly take upon himfelf all fortuitous Acci-
dents) and ib have no Reafon to complain, fince the Ufage of what is lent them gratis, either fpares them a Buying it, or is
very advant.igious, becaufe they could not, for the prelcnt, be accommodated any other way, or, after all, the Benefit may be
thought equivalent to the indemnifying againft the Danger of unforefcen Accidents. And it is more grievous for him who lends,
to lole his Goods to do a Kindnefs, than it ought to be to him who borrows, to reftore the fame Thing, or the Value, in cafe
any Accident happens, while he has them in ufe. The Maxim ul'ed by the Roman Lawyers, upon another Occafion, may be
applied here. Etft
iniquum, damnofinn cuique
effe officium fuum.
Digeft. 1. 29. t. 3. Teftamcnta quemadm. aperiantur. 1.
7.
'
The Reafon of it is clear, anfwers Mr. T i t i u s, uli fiipra, that when a Thing is fpoiled without any Man's Fault, the
Lofs muft redound to the Proprietor, provided all things elfe be equal. See the Note foregoing.
'
This is true; but then the Owner of tlie Thing borrowed, has freely confented to it, as Mr. T i t ! u s fays, but a Loan
is ufually made on another Account, as I have obferv'd fcveral Times before. The Laws of the antient Germans order exprefly,
that if a Thing perifh, or be loft, while 'tis in the PofTeflion of the Borrower, he muft pay the Owner for it, as Mr. T ii o .m a-
I u s tells us in his Difcourfe already quoted, De culparum
pra-ftatione in ContraBibus, c. 2.
J
i 8.
"
Mofes there fays.
If
a Man borrow ought
of
his Neighbour, and it be hurt or die, the 0:i'uer thereof not being with it, ht
Jhellpayfor it-; but
if
the Owner thereof be with it, the Borrozcer pall not payfor it. , The Reafon of this, without doubt, was,
that the Owner being abfent, could not take care of his Goods, nor fee whether they were endamaged or loft by the Fault of
the Borrower. Befides, if the Borrowers were difcharg'd of the Lofs in the Abfence of the Owner, it might give an Occafioa
to ufe the Thing borrowed ill, or to negleft it, and feign it loft, when 'tis not. As to the Law of the Digefls cited here by the
Author, he entitles it Commodati vel contra, and it fhould be Depofiti, &c. As it is here determined, that ill Chances are I'ome-r
times to be put to the Account of the Perfon entrufting another, j\Ir. Pufendorf informs us,
"
That tlierd is more Reafon
"
that the Borrower fhould indemnify the Proprietor for the Lofs that happens by a like Accident." See alfo E.\-od. xxii.
1 3,
14, 15.
kxA d. I. \%. prir.c. D. ctmmodati.
'3
So he that has borrowed a Horfc or a Slave, ought to maintain them at their own Charge ; but if either of them become
lick, the Charge of the Cure muft be born by the 0\\-ner.
Poffunt juftre caufit intervenire, ex quibus cum eo qui accommodaf'et
egi deberet, vcluii de impenfis in valetudinem fervifaBis, quitze pojl fugam requirendi, rcducendh'c ejus caufdfiSla ejfent; nam
titariorum impevfa,
naturali j'cilicet ratione, ad eum pertinent qui utcndum accepifet. Digeft. ubi fupra, 2.
Vid. Grot. 1. 2. c. 12. f. I 3.
n. I.
b
Fid. D. ubi
fupra, 1. z\, 22. Vid. 1.
J.
f
4. D. commodati.
*
Add-
ubi
fupra,
1. 1 8. f. 2. D. commodati.
Depofitum.
Mr. Barb. NOTES . vii,
42.
obferves very well,
"
That 'tis not without Reafon that the Roman Lawyers, who require of a Proflor the
"
greateft Exaiinefs, make not a Perfon entrufted anfwerable for the moft grofs Negligence : For a Contraft of Commilfion is not
"
made more for the Intereft of a Proftor, than a Thing entrufted of the Perfon to whom it is entrufted ; for a Truft is a kind
"
of Proflornfip, by which a certain Perfon is obliged to keep what he is entrufted with. It is true, that in both thefe Con-
"
traits we ought to take the greateft Care and Exaftnefs which we are capable of, /. e. as I have e::plained it above, as much
"
as we would have for our own Interefts, about things we moft prize. The Laws of Society and NecefTity of Commerce en-
"
gage us to it; fo that any Man who leaves his Goods in the keeping of another may expcft it. If the Truftee -^viil not do all
"
he can for him that depends on him, he ought to refufe the Truft; but fmce he willingly accepts it, 'tis juft that he ftiould
"
take the fame Care which he would readily do in his own Cafe.
Fid. lib. 16. t. 3. Depofiti, Sec. leg. i.prine. C. 8.
>
Fid. In/it. 1. 3. t. 15. {ff 1. 12. f
3. >. depojiti, ubifupr.
* Philo Jud. de plantatione Noach.
<i
Cicero
Offic.
1. 3. c. 25.
Vid. Sen. dc Benef.
1. 4-
c. 10.
f
Vid. lib. 16.
t. 3.1.1. f
45,
46. D. depofiti.
s Dedam.
245.
li
Add Fal. Max.
I- 7. c 3. f 5-
inter externa.
_
i
Fid. lib.
44.
t. 7.
1. 1 . f 5 . Z). de obligat. if
all.
?
f f 2
488 Of
gainful ContraEts hi particular. B o o k
V.
quires it, as If it be very valuable, or if one's whole of it. But in the former no body defircs tliat
I
Fortune depends upon it
^.
Which Carefulnefs does fhould be obliged to (it up, and watch by my
not conlift in having it Day and Night before our Charge Night and Day, it being enough if 1 lay ic
Eyes, but that we lay it up in the fafcit Place we can, up in a convenient Place, and never view it,
unlefe
and where it is likely to receive leaft Damage. And when fome particular Occafion requires, as I ufe
therefore although I fatisfy the Laws of Friendfhip, to do with fuch Things of my own
'.
To the Law in
if I take the fame Care of my Friend's Goods as I do Exod. xxii. 1 2. If
it beflolenfrom him, he
fhallmahe
of my own, nor can any one in Modefty defire more
;
rejiittnion unto the Oivner thereof; Grotius adds this
yet it is fit, when I cannot fave both, that I negleft Glofs, Provided it he !>y
palpable Negligence,
-which
my own, if of little worth, to prcfer\e my Friends does not much
differ
from Knavery
''.
that is more valuable ; for Inftance, in a Fire, I ought It may bear a Qiieftion, Whether the Truflee
to prefer\'e a Chefl: of Gold and other precious may make ufe of
the "Thing entrujled ixiith him? To
Things, or full of Deeds and Writings of Moment, which I anfwer. That if the Charge can poffibly
rather than fome of my own poor Houfhold-ftuft". recei\'e any Damage in the Ufe, he ought not to
But then the Deponent will be obliged to pay me the do it without the Owner's Confent. Scavola ia
Value of thofe things which I fufiered to perifh for Gellius, 1. vii. c. i.
"
He that ufes a Thing that
the Prefervation of his, as well as other Expences and
"
was Amply committed to his keeping, or puts it
Lcfles received upon the Account of the Charge. But
"
to other Ufes than the Owner gave him leave, is
if a Man fliould prefer the Prefervation of his own
"
guilty of Theft
"."
But if the Thing be ne\^cr
mean Goods to the more valuable Charge of his the worfe for being us'd, as if I fhould lay a filver
Friend(ifit has not been covenanted to the contrary) Cup for Ornament on the Side-board, or make
he can be thought only to ha\e
*
\iolated the Laws fome ufe of it for the Entertainment of fome extra-
ct Friendfhip and good Nature, and cannot be for- ordinary Gueft, I don't fee any Harm in this, pro-
ced to make good the Value of the Thing; for he is vided the Owner is not particularly concerned, that
no Gainer by it, and the Intermiffion of Afts of no Body fhould fee it, and the
Truflee
knows that
Friendfhip and good Nature does not oblige to the he is to ftand to whatever Rifque it may run by be-
Reflitution of what Lofl'es may happen thereupon, ing fo us'd. But when the Owner has lock'd or feal'd
But the Reafon why the Roman Lawyers require a up the Charge, we ought not, upon any Accoimt, to
lefs Degree of Diligence in a Charge than in a Com- open it
''.
Nay, a conjumahle Commodity given in
mijfion, is, becaufe the latter is managed by our Charge, altho' neitlier lock'd nor feal'd up, may nca:
own peculiar Act, and which therefore we have in be made ufe of by the Truflee
'^,
unlefs he be able
our own Power to direct in every little Circumftance to reftore the fame in Quantity and Quality upoa
De-
*
Thomafius, in his Difcourfe aforementioned,
44.
does not think this Determination good; for he fays,
"
We do not offend
"
againft the Laws of Humanity, unlefs there be no Engagement." And fince, according to our Author, when one fuffers the
Lofs of his own Goods to fave a Thing of greater Value, with which he is entrufted, he may make him pay for his Lofs : Wc
muft own, that in Striftnefs he is obliged to fave a Thing committed to his Truft at the Expence ofanother of lefs Value, which
belongs to him, as he is alfo obliged to be at all neceflary Expences to preferve his Trull. As for me, I believe that this lafl:
Cafe, and fome others, are out of the Extent of our Engagement to general Contrafls. The interfering of our own Interefl
with that of a Pcrfon vvhofe Bufinefs we have voluntarily taken in hand, or Goods to keep, begets a tacit Exception, which
may not take place; but then it muft be judged of by other Principles. I am not indifpenfably obliged to negleft my own Af-
fairs, tho' lefs confidenible in themfelves, to attend another Man's, that I have undertaken; at leaft, I am not expredy engaged
to fuch a Preference, or the Nature of the Thing itfelf doth not require it neceifarily. Nor are we any more obliged in Rigour
to fave what is committed to our Charge, to the Damage of a Thing of lefs Value that belongs to us ; for belides that, whatever
Difproportion there may be, if we conlider the Things in themfelves, what is of lefs Value, may be of greater Worth to the
Trullec than the other is to him that has entrufted it to him. He may have fometimes a very great Occafion for the Thing he
muft facrifice, or he m.iy fet a great Efteem on it for fome particular Reafon, or the Lofs cann't eafily be made good. As there-
fore we do not commonly engage to do all we can for the Security of our Truft, inafmuch as at the lame time we do not think
of the Perfervation of our own Goods, wc are not, properly fpeaking, in rigour obliged to fufFer the Lofs of any Thing that
belongs to us for this Reafon only, becaufe it is of lefs Value than xh\t which we have in our keeping. To this we may add,
that in the Trouble into which we fiill by an unforefcen Accident, v.j have not fo much Prefence of Mind, for the moft part,
as to confider wh .t Things are beft worth faving, or if we fliall have time enough to fave this or that. We generally run to
that which comes iirll into our Mind; and as it is natural to think of our own more than of another's Goods, no Man can think
it an Injury, if we prefer the Prefervation of our own Goods, tho' of lefs Value, before that of another's. It is alfo very often
jiard to know whether we can preferve our Truft, tho' wc ncglefl; our own Goods. I conclude. All muft be left to the Con-
fcience and Friendfhip of the Truftce.
9 But fays Mr. nonmf.m, ubi fupra,
43.
"
As there are divers forts of Affairs which require a different Care, and more or
'
lefs Application on the part of the Proftors ; fo there arc divers forts of Trufts, which muft be differently kept, and with more
" or lefs Watchfulnefs. One fort of Care wc muft have of an Houfe, another of a Slave or Domeftick Servant, another of 1
"
Jewel, or lome other precious Thing, another of fuch things as arc not portable; and therefore we are fatisfy'd to place thenx
"
in a Court, or lome fu<-h Place, ^c. fo that 'tis not true to fpeak generally and without Rellridion. 'Tis I'ufHcient to put a
" Thing in a convenient Place; and when that's done, we cann't any more conclude that a Truftec is only anfwerable for his
" Knavery and grofs Negligence, than we may infer, for the fame Reafon, that the Seller, before the Delivery of liis Goods,
"
is alfo refponfible for his Knavery, and the fame Degree of Negligence, and nothing elfe."
Mr. L E C L E R. c fully ihews, by the Connexion of the Dilcourfe, that it is underftood, that the Theft was committed
cither in the Sight, or with the Knowledge of the Truftee.
" The Words are, Sive i: apiui quern res
depofita e/l, ea re utatur furtum commitit.
'^
Mr. S A c y's Decifion upon a Cafe which he propounds in his Treatile ofFriendJhip, appears a little too fevere, not to fay
very four.
_
"
I am iiot afraid tofay
(thefe arc his Words) that he, to whom a Thoufind Livres are entrufted, may not make ufe of
"
them to fave the Life of his Friend, who is fallen into the Hands of Thieves, who threaten to take it away, if that Sum be not
"
paid by a certain time. This is a Cafe, in which v.'e ought to forget that we have any Truft, becaufe in having fuch
",a Sum entrufted to us, 'tis as if we had none: For it is not lawful for us either to open or force the Cheft where it is. And if
"
we dare to do it, we commit no lefs Crime, than if we broke open our Neighbour's Houfe, and took that Sum; the only Diffe-
"
rcnce is, that the Law punifliing this laft with Death, and taking no Notice of the other, leaves our Punifhment to Inf^imy
"
tho', in the main, 'tis the fame thing. The Sum entrufted, is in the Hands of the Perfon trufted, not as in his Houfe, but in
"
his Houfe to whom it belongs; and fo when the Truftee makes ufe of it, he fteals it no lefs than if it were not entrufted to
him,
"
ho
a
Add. Ainbr. Off. 1. 2. c 29.
*
Add. lib. i6. t. 3. I. i. f. 36. B. dtpofit.
Chap. IV.
Of
chargeable ContraBs
in particular*
489
Demand : For we are often in fo great want of fiich
fort of things, that we cannot part with them on any
Terms.
Laftly, 'tis well ordained in the Roman
Law, that whofocver fhould difown a Charge, which
die Deponent, in Diftrefs, had repofed with him, as
being in danger of Fire, Shipwreck, Tumult, or fuch
like, fhould be fin'd double ; for fuch inhuman Vil-
lany dcferves to be fcvercly
"
punifhed, which does
not fcruple to make a Gain of tliofe Men who are
tlieObjefts of Compaffion. Vid- 1. i. f. i, 2,4./).
depofiti, d. 1. QiiinBilian, Decl.
245
. adds, " ACharge
"
ought to be reftored the fooner for being deliver'd
"
fccretly and without Proof
"
Add Exod. xxii.
7, 8, 9. Lev. vi. 2,
&c. Nay, I think it a worfe
Crime to difown or withhold a Charge, than to com-
mit a Robbery ; for here only Juflice and Property
are violated, but tiiere Fricndfliip and good Nature
too fuffer ^,
Nor does it extenuate the Crime, that
the
Truflee, having the Charge put into his Handy,'
has an Opportunity of playing the Knave (which
is otherwife tempting enough) hid in his Way
j
whereas the Thief has no fuch Temptation, but of
his own Accord fcizes upon other Mens Goods, and,
which is more, breaks in upon that common
Security
which makes every Man's Houfe his fafcft
Sanftua-
ry. Nor is a Guardian guilty of a lefs
heinous
Crime, who debauches an Orphan committed to his
"Trufl, and received into his Houfe
^.
Since the Keeping only is given ^r^zf/V, it is plain
that all the Expences laid out upon the Charge ought
to be repaid. Upon which Ground it is rightly de-
clared in the Digefts
<^,
T'hat
if
a Charge he receiv-
ed at Alia, to Le refiord at Rome, it
mufl
be at ths
Expences
of
the Owner, not
of
the Truftee.
"
he took it out of the Houfe of the true Proprietor." Pag. 125, &c. This Author does not diftinguifh whether he be able or
not to pay the Sum entrullcd to him, which he made ufe of to fave the Life of his Friend ; all that lie i'ays tends only to prove,
that, let the Reafon be never fo important and preffing, for which the Thing entrufted is made ufc cf, he is guilty of
Theft for this alone, that he made ufe of what he had in keeping. But this is one of the Cal'es of Neceflitv, which arc above the
common Rules, and whofe Exception is included in all Engagements. Whatever a Man can do for himfelf, that he can certainly
do in the like Circumllances for his Friend, who is his fecond felf; and we ought to have fuch a good Opinion of him who trulls
us, as to believe that he would lend us his Money for that Ufe freely, and fo he may be thought tacitly to confcnt to it. I pro-
ceed firthcr, and fay. That fuppofing the Su.m depofited be inconfiderable, in refpedt of the Eftate of him to whom it belongs,
I cann't fee but that it may be made ufe of to fave the Life of a Man and a Friend, tho' we do not think him rich enough to pay
fo great a Sum under a long time, if ever. If it be allowable, as I have prov'd .above, /. z. c. 6. not only to take the Goods ofano-
ther, but alfo to run the Haz.ird of one's Life to preferve his, is it not much more excufable to take the Liberty of dil'pofmg of
a Thing truftcd to us, in fuch a preffing Neceffity of a Friend ? And yet there is a great deal of Difference between this Aftion and
that of a Man who robs to fave his Friend; for this laft commits a manifeft Violence and Injullice, whereas the other only makes
ufe of the Opportunity that Providence has given him, where he may prefume upon the Confent of him who has committed
that Money to his Keeping. It is much like, as if a Man, being purfu'd by his Enemies or Thieves, takes the firft Horfe he
lights of to make his Efcape, tho' the Mafter is neither prefent, nor knows it.
'3
The Words of the /)/g-^j are, Prator ait, quod neque tumultus, neque incendii, neque ruirtit, nequenaufragii caufa depofi-
iumfit, infimplum, ex earum autem rerum, qua:fufracomprehenftefunt,iniffuminduplum cum extante necejfitate deponat,
(refcit perfidies crimen.
a
In Pifidia the Breach of this Duty was Capital, Nicolaus Damafcens.
b
Add. Arift. Prob. Scft. 29. Qu. 2 & 6. Alfo /.
\.f.
2..^ t-j. princ. D. defurtis.
Lib. 16. t.3. \. \z. prim. D- depofiti.
CHAP. V.
0/chargeable Contrafls inpartictilar
;
and^ Firjl,
of
Bartering, Buying and Selling.
V. What the Buyer ought to perform to the Seller,
and
e contra.
VI.
Of
Buying in Hope andExpeHation.
VII.
Of
Monopolies.
other ; or the Commodities may be
immediately
compar'd together. The
firft
fort is, in a manner.
Buying and Selling, for here the Things are rated
according to their Prices on both Sides , which
Sort of Bartering is at this Day very frequent.
And therefore there is no Reafon to conclude,"'
that pure Bartering was in ufe at the time of the
ther the Commodities may be valued for Money, T'rojan War, as moft do from that Paflage in Homer.,
and then, inftead of Money, exchanged for one an- Ihad.
v.
472.
I. Of
Exchanging or Bartering.
II. JT'hen a ContraEi
of
Buying andSelling is compleat,
III.
Of
the Lofsor Gain
of a 'Thing fold.
IV.
Of
Agreements commonly join d with Sales.
OF
chargeable ContraEis, Bartering is defervcdly
efteem'd the Chief ; for in Days of Yore
',
before Money was found out, there was no other
Method of maintaining Commerce. The Dutch
made ufe of the.fimplc and antient way of Barter-
ing
Commodities, Vid. Tacit, de Morib. Germ. c.
5.
^.
i^ow Bartering may be made two ways
;
ei-
See Gret. B. 2. c. 12. f. 3. n.
3.
Mr. Barb BYRAc's N07ES on Chap. V.
r.
'
See about this Difpute Mr. Gr^pis^, Profeffor of Law at i?w^,
his Origim 'Juris
Civi/if, 1.2.
p.
J48,
(5'c.
490 Of
chargeable ContraBs in
particular
;
and B o o k V.
The Grecian Chiefs their chearful Bowls prepare,
And barter Brafs and Steel for fumptiious FaK.
Some truck witli Slaves or Skins of llaughter'd Rine,
And fome the Ox it {di exchange for Wine.
For,
fap
Pliny *, IwiJJ} we could quite lay
afide
the
reafon of their Beauty received great Prefents from
their Gallants, were call'd m^fivm aKtpir.Coio!,
Vir-
gins who gain Oxen : But granting that Coind Money
was
not then known among the Grecians, yet the
Ufe
of Gold and Silver, by weight, might poflibly have
obtain'd in Commerce. Indeed, that many Nations
ufcd Money before the Trojan War, is plain enough
from Holy Writ.
This Place of Homer puts me in mind of the Coii-
troverfy between Caffius
and Sahinm
'^,
IVhether be"
fore Money was in tife, or now, Jince
the
Ufe of
it, it
might be call'd Selling,
if v.
g.
IJhouldgive my Cloak
Ufe of
Gold, which all good Men fpeak againft,
and
for
a Coat ? Sabinus aflsrted that it was, from this
uihich was 'found
out to the Deftrutiion of
Mankind.
Pallage of Homer, as if the Grecian Army had
How much happier was it when one thing was e.\-
bought Wine with Brafs, Iron, and Men
; but
daa^'iifor
anither?
^f (if i/u?M?K maybe believed)
o(m{3j does not properly fignify to toj ^-^/He, but
was done at the time of
the Trojan IFar : For then,
to procure it by any means whatfoever, as among
/ fuppfe,
Cimmerce was fet
on Foot for the Conve-
the Latmes, pabulari, lignari, frtimentari, fignify
niences of
Life-
He tells us. That fome
purchas'd
to forrage,
to get Wood, and Corn by any Method
with Hides, fome
with L on,
others with Plunder
:
whatfoever ^ The other Opinion indeed feems
Tho' he himfelf
was an Admirer of
Gold, yet he
fo more feafible, becanfe it is one thing to buy, ano-
rated
Thims, as to make Glaucus exchange his gol-
ther to fell,
the Buyer one Man, the Seller another;
den Arms of
a
hundred Oxen Pr/ce, /or Diomedes'i
of the Price one thing, and the Commodity anotiier;
nine. Hence it is, that the Fines inflicied
by the old
but for the fame Man to be Bttyer and Seller, and
Law^ sonfjfled of
Cattle, even at Rome.
Indeed, at
the fome Thing both the Commodity and Price,
this Day,
nothing is more common than for Soldi-ers
feems abfurd. But to this we reply what we juft
to exchange
their Boot)' for other
Commodities
;
for
now faid of the two Sorts of Bartering
;
for if we
their Booty
does not always confiR of Money, and fuppofe the I'hings to be firft rated by Money, the
they do not fcruple to take other Things that come
Buying will be reciprocal, and therefore not abfurd
in their way.
And therefore it does not follow,
for the fame Perfon, in a different refpccl:, to be
that Money was not in Ufe at the Time of the Tro-
jan
War, becaufe the Soldiers purchas'd Wine with
their Plunder : Nay,
there is mention made of Ta-
lents of Gold in Hmer ;
for in Iliad. ,.
v. 122. A-
gamemncn
p:omifes to give Achilles Ji^j.
yjvcv'llo rd-
Arfi-I", Ten
Talents of
Gild, & Odyff. Q. v.
593
Each
of the Phxacian
Piinces
gives Uhjfe'. yjomo toaoj-Ii^
viJ.)'iiv]'S-, A
T.i':r,t of
lenerable Gold. And altho'
that
Gold in Odyff.,.
v. 1 1. is call'd, xf'oTf
-^mM-
Jkf.&-,
yet it is not probable, that all Gold was
then
wrought,
or us'd only for Cups and fuch fort of
Vellels.
Nor
does it appear why HjJner fhould gi\ e
f;ich a
Vcacraiion to Gold, if it had not been then
the
Scandard
Price ofother Things. Befides, -mhu-
JWAa- may
fignify any Mateiials capable of being
finely wrought
upon. As tor Homer's calling Glau-
cus s golden
Arms it^-nii/.i>iA, or worth an hundred
OxfK,
and
D;o?Kfi^f/s Brafs ones, Inia-Cota, or worth
nine Oxen,
without doubt he did it, becaufe in old
Time,
the
grcateft Riches confided in Cattle, of
which Oxen
being the chief, becaufe ofthe abfoluti
both Buyer and Seller.
Under the Name of Bartering may be brought the
reciprocal Donations which commonly pafs between
Friends ; which not being a Contract, do not re-
quire Equalit}' K And to this may be referr'd the
changing of Arms between Glaucus and Diomedes ^,
which, for the Inequality, may perhaps be P.il'd
FooliHinefs on Glaucus's fide, but cannot be call'd
Injnfiice in Diomedes. Maximus Tyr. Diilcit.
23.
fays,
"
Glaucus rated his Parchafe from the Oecafi-
"
on, not according to the real Value." And again,
Differt. 24.
"
No;- had he that receiv'd the golden
"
vVrms more than his Due, nor he tliat received the
"
brafen, lefs
;
but both did gencroufly ; the Incqua-
"
liry of the Matter being made up with the Equality
"
ol tiie Deilgn tliat each had of obliging the uthcr."
Add. Ifocr. ad Nicocl. in princ. Among the Rujjuins
there is a Market for holy Images, whicli they do
not pretend to fell, but to exchange for Money
.
II. But fince Money has been introduc'd, tlie Con-
_
traft of Buying and Selling has been mofl: in Ufe
',
Neccffityofthcm
in Husbandry, it was ufual to refer whereby the Propeity of a Thing, or fome Right
the Price of other Things to them ; which common cqLU\-alent to it, is acquir'd for a certain Sum of Mo-
way of fpeaking
did not immediately grow out of ufe, ney : And here the firft Enquiry is^ When the ComraSi
after
Money had been made the Meafure of all things,
isfo
compleated, that nothing remains but that the
And
therefore it is obferv'd ^, that Maidens, who by Seller relinquijh the Thing, and the Buyer take
Pofo
fejfion
*
Of this
Opinion the Dize^i fpcak thus, SeJ ftriir
eft
Ncrvtt iff Pncitlifententia, permutalioncm, nor. emptionem hoc ejji.
l^amtlt aliudejl
venderc, ali'ud emere, alius emptor, alius venditor ; jic aliud
eft
pretium, aliudmerx, quod in permutatione dij-
cerni mn poteft,
liter emptor, utcr -jenditorjit, ithi fupra,
^ r
- . ^ j
- < _(
3
M.'ix.
Tyrins's
Greek is, OiJiv yi "in t3 KaC'ofV yjvaii Tj^'iOV, iTiTm iif^a.^A/A'UO ^Kwf ihamov, cL>},a. itu.ipoTi^li
rd-K^'i "i-^i ifinc^'tv
ttJ aciffu -f CVm^, 'lanwia r/i
yvuf/.)) Jb^vn-
SceMr. U.ivis's No'tes on it. Wc ni.iy alio add here.
That bv the R'lmnn
Law'an Exchange ii a Contrad without a Name, for which there lies no Adion in Juilice but the Delivery
of the Thing
exchanged is made on both Sides. See
Digeft. I. 19. /. 4. De rerurn permutatione, and Mr. D a u m a t 'b Civil
Laws in their Natural Order,
Part i. 1. i. t.
3.
L.
1
V <^- '
'' ^' Dydimui remarks, ad Horn. //.
^.
v. 236.
c
yid Lib. 18. t. \.\.i. D. de contrah- empt- ^ yid- Horn.
// d 1 <= Olearius
itin. Perf. 1. 1
.
c. i
.
Mr.'^Kf.v,. NOTES on %u.
The Words of the Di^elis are, Et
ft
quidem pecuriium dem, ut rem accipiam, etnptro Isf venditio
eft.
So wc may fell a Service,
an
Inheritance, a Dsbt, in a Word, all Sorts of Rights, Names, and At^ions. ^cs Digeft- De baredittHe, vel acliau vmdiid,
\. \%. t. 4.
Chap.
V.
Ftrft, of
Bartering, Buytug
and Selling.
49
1
feffion of
it ?
According to the Romm Laws
'-
die indeed the
Knowledge
of the Thing is always nc-
ContiTici: is compleated as foon as both Sides have a- ccflary for the
determining of the Price
;
and it is
greed upon the Price; and then the Buyer can force imprudent to buy
without feein"- it where v/e can-
the Sel/er to deliver up the Thing ; and the Seller can not depend
upon the Word of the Seller.
oblige the Buyer to take it, and to pay down the The determining
of the Commodity.' by Weight,
price immediately, or at the Time appointed ^ Meafure, or Number '^,
is not properly a Condition
But the Contraft m.ay be incompleat, and not ca- of Sale, unlefs the Thing be fo, as not to ferve my
pable of bearing an Action, eiiher upon a general Turn, but in fuch a Qiiantity.
However, for pur-
er a
particular Account. Tiic
Fiyft
is, wiien the ting the Contract in Execution, it is neccflary to
Buyer and the Seller
^ '
are not agreed, but Pall en- meafure, number, or weigh *
; for we cannot other-
dcavour to bring one another to their own Terras
j
wife fpecify the Thing, and fet it apart from tliofe
where they are both flee to gi\'e back and break off of the
'
fame fort. Nor, without tins Mcafurin'^
the Bargain, having not yet contracted an Obliga- can the Goods be deli\er'd, or Property tranf<
tion, pro\ ided there be no Deceit nor Defign in ei- ferr'd
;
for I ha\'e no other way of determining
what
ther Party to elude the other
;
which indeed obtains belongs to me, and what to the Seller. Sometimes
in all ContraQs. The Latter is, when the Bargain indeed we buy at a Lump ; and then Meafuring is
turns upon fome Conditions ^ ^
either expreft or un- only for Experiment, not for the rating of the Com-
derftood ; as if the Ware is firfl to be feen or tafted
^
modity
;
for in that Cafe, the Meafure does not pre-
*,
for here the Bargain goes upon a Suppofition, cede the Delivery
; it being one thing to fell this
that the Thing will not only appear as the Seller had Veflel of Wine that holds ten Gallons, and ano-
rcprefentcd it, but that it will then pleafe too. For ther to fell ten Gallons out of this Veflel
.
Laftly,
*
Altho' the Buyer pays nothing down, nor gives any Earneft. Ej} /intern enptlo Juris Gentium, y ideo confenfu per/igitiir, y
inter rtbfentei (ontrabi
poteft, i:S per nuncium ijper litems, Digeft. de contrahcnda Emptione, Leg. i. 2. Emptio{f ncnditiocon-
tmhitiirJimulatque de pretio convenerit, quamvis nondum pretium numeraium
fit,
ac ne artba quidem data fiierit, Inftit. 1. 3. t.
24.
princ. SeciKo Digcjl. r/lii/upra, L^^. 19, 34. 6.^35. 5,6, 7.
^ As when they have not agreed upon the Price, bat only have faid, We fhall well agree, I'll fell it at a reafonable Price, i^e.
It is the fame, according to the Roman Lawyers, when we fay, I'll fell it for what you pleafe, for what you think reafonable, iffc.
IHud conftat
imperfefnm ejfe negotium, cum emere volenti
fie
venditor dicit, ^A'NTI velis, quenti aquum putaveris, quanti
afii-
naveris, habebis emptum. Digeft. ibid. Leg.
35. i . Some ask. Whether a fmiple Contnid to fell or buy, obliges to any thing
by the Law of Nature and Nations ? Mr. Tho.masius, in his Ij'ikomicDe Jrrhis emptionum,
23. denies it abfoKitely ; and the
Reatbn, fays he, is clear, "
There is only a loofe Confent which is come to no Determination, and which gives no Right ta
'
him to whom the Promife is made, to demand any thing : For how can he pretend thu he h-,th bought or fold any"thing
" aftually ? But if one has no Mind to fell, 'tis eafy to evade his Promife by exacting .^.n enormous Price, or by annexing fuch
Conditions as we think fit; and if one has no Mind to buy, hecanascafilygetoiFby very fmallOTers, orby engaging him to ver/
"
hard Terms. Or how can a Man pretend to be endamaged, fince there is neither any Good.s fee out, nor Price fixed ; and he
" hath nothing to do but to declare that he is ready to conclude the Bargain, if he refolves to go on with it ; and to take away
engages any Man, and .i real Promife, upon \vhich the Perfon, to whom it is made, maydepend : The firft fort may be eluded after
the manner that this able Lawyer hath reprefentcd, becaufe we have promis'd fo far only as we pleafe to keep it ; and io he, to
whom the Promile is made, has no Right, but the other ought certainly to be ordered fo, as not to come to Nothing, and the
Promifer c^rii't elude it at his own Pleafure. Let us clear this by an Example ; I fee a Thing ufeful to me in another's Poifef-
fion, anU ask him whether he'll fell it me .' He anfwers. Yea. Whereupon I go away without bargaining, or requiring him to
lay it afide for me. In this Cafe 'tis plain, th.it if the Owner of the Goods fells them to another, and refufes to fell the.m to me
afterward, Avhen I come again to defire it, he does me no Injury, for he is under no Engagement to me, no othcrwife than that
we might have agreed, if I had at that inibnt bargained; but fince I neglefted it, 'tis fo much the worfe for me. And this hath
chiefly a Place, when he that declared his Price at that inftant, is a Tr.ider by Profeffion, and deals in Things of that Nature
J
for we know well, that if we do not take fuch Men at their Word, when they ofFer to fell a Thing at fuch a Price, we do no-
Jng
'
ten v.'-ries, or at the ufual Price, if there be any Rule for it
;
provided that I come foon to buy it, or in the time agreed on ; for
if I let the Time pafs, or, if it were not fet, I Hay a long time before I come again, the other Contraftor is releafed of his Word,
by realbn of the Occafions which he may lofe of felling his Goods to Advantage; for before tliis he was not free to recant, be--
caufe I might fail of accommodating mylelf elfcwhere.
The Words of the
Digefts
are, Co!:ditionales autem venditiones tunc perficiuntut, cum impletafuerit conditio. But this is nol|
appropriated to a Bargain and Sale only. All forts of Agreements follow the fame Rule. See what is faid above. Lib.
i-
c.
\.
^odfifub
conditione res venierit, fay the Roman Lawyers,
fit
quidem defiecerit Conditio^ nulla
cfi
Emptio, ficuti nee
eft
Stipulation
Digeft. 1. 1 8. t. 6. De Periculo & commodo Rei venditje. Leg. 8.
5
Gnftus enim ad hoc proficit, ut improbare liceat, Digeft. lib. 1 8. tit. De contrah. empt. Leg.
34.
5. Difficile autem
efi,
ut
quifjuamfic emat, ut ne deguftet. Ibid. tit. 4. De periculo & commodo rei venditac. Leg. 4. i.
*
As for Example: If I buy fome Cloth for a Suit, and the Piece holds not out fo many Ells as it ought.
7 Si id, quod_ venierit, appareat, quid, quale, quantum
fia, is* pretium, IS pure venit, perfieEia
eft
emptio. Digeft. De periculo
& commodo Rei vcndits, Leg. 8. princip.
In his qua pondere, numero, mcnfurave eonftant,
fi
omne vinum, vel oleum,
velfrumentum, vel argentum quantumcunque
ejfet, unopretio venierit, idem juris
eft,
quid in catcris rebus. S^uod
ft
z'inum ita ve-
rtierit, ut infingulas amphoras
; item oleujn ut infiitgulas metretas ; itemfirumentum ut infiingulos modioS) item argentum ut infitn-'
gulas libras certurn pretium diceretur, IS de Ins qua numero eonftant,
fi
pro numero corporum pretium
fit
ftatutum.
Sabinus y
CaJJius tunc
perfici cmptioncm exiftimant, cum ad v.umerata, admenfa, adpenfiivefirit ;
quia venditiofub hac conditione vidctur fieri
vt
in
f,ngulos metrctaSyiS modios,lS libras, quoi quafve admenfius erisvelappenderii. Lib. 18. 1. 1. Dccontrah.empt. fcrV. Leg. 35. 5.
This is not appropriated to Sales, but to all forts of Agreements. Contrallus veniitionum, velpermutationum, velDonationum%
Vuas intimari
\_inn\eft neceffarium, dationisetiam Arrharum, vel alterius cujufcunque caufa',{/iuas
tamen"] infcriptisfieri plac-uitt
tranJaCiiorrum etiam, quas in inftrumento recipi convenit, non aliter vires haberefiincimus,
nifi,
inllrumenta in mundum recepta.
Jut'
fcriptionibufque partium confirmata,
(J
fi.
per tabellioiiem confiribantur, etiam ab ipfo
completa,
1$
poftrcmoa
partibus abjoluta funt.
Cod. lib.
4.
tit. 2 1 . De fide inftrumentorum, l^c. Leg. 1 8. See Inftitut. l.^. t. 24. De Emptione (sf
Venditionc princ. We ought
to obferve that in this
, altho' the Author pretends only to relate the Determinations of the Civil Law, he fo mi.ves his own
Notions with theirs, ^vhich he endea^-ours to reiTtify and reduce to the Simplicity of the Law of Nature, that 'tis not pofliblc to
dilintingle them in a Tranflation.
Add. lib.
19.
t.
5. D. deprafcript. verbis, &c. Leg.
5. f. i . ^Ine pretio nulla venditio
eft.
Lib. 1 8. t. i . y 1. 19. 1. 34.,
f
5,
6. I.
35.
f
I, 1;, 6, 7. D.de contrah. empt. &c.
b
Vid.Y). ibid. Leg.
35.
f 1. Vid.Ji. ibid. Leg. 7.
! I.
See above in B-.
3. Ch. 8. * Vid. D.
ubifiiprct. Leg.
34. f. 5.
Vid. D. ubi[u^r*.
492 Of
chargeahkContraBs in particular; and BookV,
Laftly, the Bargain is incompleat, if the Pa! ties
^
particularly agree to have one another's C'jnfent ex-
preft in Writing, andthe Wiitiags benotyti ffuifh'ci.
But 'tis another thing, if this '.Vi-iting is delign'd on-
ly for a Help of the
'
Memory, or an E\ idence of
the Thing. What the Hebrews obferv'd, in leiatijn
to this Contraft, is curioully taken notice of by Sel~
den, De
J.
N. & G. fecund. Heb. 1. \'\. c. i CT
4
Add a Place of 7?;c'o/'/;. in ^toha.us, Scrm. 42.
III. And here we muft take fpecial Care to dillin-
guifh between the ComraEi itfelf,
and the Esecution
of it. The Contrati is conipleated as foon as the
Commodity and Price is agreed upon, provided there
be no Condition added, that can fufpend tne Obliga-
tion, or any thing elfe, that can leave room for ei-
ther Party to recede from the Bargain ; but the Execu-
tion of the Contraft confifts in the aftual Deli\'ery
of the Money by the Buyer, and of the Commodity
by the Seller. It is indeed mod natural, that as
foon as the Contrad is compieated, it fliould be
put in Execution
;
or that as foon as the Price is a-
greed upon, the Buyer fhould deli\'er the Money,
and receive the Commodity
;
which they call T'riick-
ing with ready Money \ Vid. Plant. Afin. AB. I.
Sc. iii. v.
47.
As alfo Plato de Leg 1. xi. in his
Commonwealth enads,
"
That whatfoever is bought
"
and fold, be done in fuch a certain Place ot the
"
Forum, the Seller delivering the Commodity, and
"
the Buyer paying down the P- ice immediately."
But when there is fome time between tne Comple-
tion of the Bargain, and the Deli\ery of the Thing;
it may be demanded to wiiom the Damage, or tne
Profit of the Commodity belongs in the mxan time,
to the Buyer or to the Seller ?
*
'Tis well known
that the Rvmnn Law, as foon as ever the Bargain is
compieated, imputes tlie Rifque of the Commodity
to the Buyer,
'
altho, it be not yet deliver'd, and ai-
tho' the Seller remains Mailer of it. B}' Rifques ihey
mean the Accidents 'tis liable to, from external In-
juries, as Theft, &c. or internal Decay proceeding
from natural Caufes
^ "*.
But how can the Damage
belong to the Buyer, when he is not vet the Owner,
whereas the Lofs of a Thing is to rhe Owner ? To
which fome anfwer
' '",
that that trite faying, 77j;
Ivfi ;t to the O-xner, is true, when the OiuKfr is op-
pos d to thofe who have barely the Ufe and CnUcdy
of the Thing
;
and not to thofe who have Rigi:t in
it, and a Power to call for it as their own. Which
Diftinftion is founded upon this Reafon, that the
B^i'ey might, and ought to have immediately taken
Pollcffion of the Commodity, and to have paid down
the Money ; which if he had done, it had pcrifh'd
in his own keeping ; and therefore his Delay and Neg-
ligence ouglit not to turn to the Lofs of die SeUe;:
Beiides, the Rifque belongs to the Buyer, not only
becaule he is the Owner, but becaufe the Selur, af-
ter the Complevicn of the Eatgain, in refpefi; of die
Buyer, is not conlider'd as Owner, but as Ti
z/fiee
of
fiKii a particular Commcdiry, tor which, if it be loft
without liis Fault, he ought not to be refocnlible.
'
But after all, fince it is tlie Seller's Bufuiefs to
gi\e tlie Buyer PoflelTicn, if he has not difcliai-ged
this Duty, I do not fee why he, rather than the cther^
fhould not {land to the Lofs of it. For the Anfwer,
T^hat a Perfon, having projmi'd any certain Thing,
does mtfland
vblig d in cafe the Thing be
loft,
does not
come up to our Cafe
^
: For there the other P.irty
was to have gain'd the things gratis ; and it woidd
be hard and unjuft for a Man that had promifed a
certain Species, upon the Lofs of it, to be boi.nd to
make good the Value. But in fuch Dealings as ad-
mit of no Lautude, the Cafe is altered; for wliy
fhould
9 This is commonly pi-efumed till the contrary appe.ir. Tititit enim de his [obligationibus qua confenfu contriihuntur'\ fcrlpta-
ra, ut quod aflum cj} per easfncilius probarl pojfit, isfine his autem valet, quod aSlum
eft,
fi
habeat frobationem, ficut eJ" nuptl^e
fiint,
licet teftatiofinefcriptis
fit
habita. Digell. lib. 22. tit. 4. de fide inllrumentorum, (^c.
This not only refpefts Contrafts of Selling, but likewife all other Compafts, Fid. C. lib. 4. t. zi. Defide itiftrumentor.
&c. Leg. 17. ^// Inllit. lib.
3. t. 24. De emptione i^ venditicne princip. ^ Vid.d. tit. de peric.l^ commod. rei vendita:.
c Vid. C. lib. 4. t. 24. De Pigneratitia aBione, Leg.
9.
d
According to lib.
45.
/. I. leg.
33.
/. 83.
/'
7. D- de verb,
oblig. y lib.
35.
/. 2. /. 30.
/
4. Z>. adL. Falcid. infine, 13 lib. 4. /
3. Leg.
18./ 5. D. de dolo mah.
Mr. Barb. NOTES on
^
111.
*
This 'niwhith cn\\ed Gnecdfide
mercari. Sec Pl,i.'/t. djV. as in the Text.
*
The Words of the La\v are, i^/um tiutem emptio i3 venditio cuntraHa
fit,
- - - periatlum reivcnditieflatim ai emptorem pef-
tiiiet, tametfi
ea res tradita emptori
nonfit.
Itaque
ft
homo mortutisfiit, vel aliqua parte corporis lafius fit, ant ades tota, aut ali^
qifa ex parte, incendio confumptieftierint, aut fundus vi fluminis totus, vel aliqua ex parte ablatus
fit, five
etinm iuundatione aquic,
vel arboribus turbine dejeSlis, longe minor, aut deterior
effe
cceperit, emptoris damnum efl, cui ncceffe
eft,
licet rem non fuerit
naSlus, prctium folvcre. ^icquid enim
fine
dolo ^ culpa venditori' accidit, in eo venditor fecunts Cjl. Inilit lib.
3.
tit. 24. 3.
The Ncglijicnce for which the Seller is refponfible, if there ba no Cheat, h, what the Roman Lawyers call a finall Fai'.It, ^^hich
is oppos'd to the Care which a good M.Uler of a Family commonly has of his own Affairs; for they rcquhe fuch a Degree of Ex-
aftnefs in all Contrafts, as may be for the Advantage of both Parties. Si nihil apparent coni'cniffe, tails cuftodia dcfi-.'.ernnda
(ft
a
venditore, qualis bonus Paterfamilias fuis rebus adhibet, quam
fi
prieftiterit, IS
tamenrem perd'tdit, fecurm ejfe debet. Digcft.
lib. 18. tit. I. De contrah. empt. Leg.
35. 4. Sed ubi utriufque utilitas vertitur, ut ir: cmpio, ut in locato, ut in dote, ut in
Jocietati, 13 dolus, 13 culpa pneftatur. Lib. 23. tit. 6. Commodati vel antra. Leg. 5. 2. As fof me, I hold to w lut I Lave
faid in the foregoing Chapter ; and, without having regard to that Dillinftion about the Advantage, wliich accrues by a Contrafl.,
cither to each of the Parties only, or to both together, I believe that the Seller, and every other Pcrlon, who is engaged ex-
predy or tacitly to preferve a Thing that belongs to another, in any wife i:; refponfible for w h.itever happens, it he has not doud
as much as he could or v^rould for hunfelf, and his own Intcrelh, in things which he values moil.
3 Yea, when he has delivered it, provided he has not received the Payment, or given Credit, or taken fome Pawn, or accepted
a Security. Sane qui r.ondum rem emptori tradidit, adhuc
ipfe
dominus
eft,
Inilitut. ib. Secalfo Lib. 2. tit. l . De divifiune rerum, 41
-
+
Res domino perit, fay the Layers ; a Maxim taken out of this Law of the Code, Lib. i. tit. 24. De pignoratitid aiticnf.
Leg. g.
Pignus in bonis debitoribus permaiierc, ideoque
ipfi
perire in dubium non venit.
S
In Mr. H E R T lu s 's Edition thcfe Words arc infcrted here,
"
This hath not Place but in Contrafts, wherein one of the
"
Coritraftors hath in his Hands the thing that belongs to another, and not in thefe, wherein one of the Contrailors owes the
"
other a certain thing in fpecie. Or, as others exprefs it, the Lofs is the Owner's, when, i3c." The Englijh Tranflator
has heal'd this Breach by skipping it.
_ ,
_
*
We may add here what C u
J
A CI u s, and fome other Lawyers affirm, that, according to the .Ro/zm/; Law, all Accidents,
before Delivery, muft fall upon the Seller. See C u j
.i^
ci u s up(7n Leg.
j
3
. of the Digrfis. Tit. locati conduct, in his Trcatiie
ti Africanum, Lib. S- Mr. Van Eck, Profeflbr at WnvZ'/', oh{erves in \\\s Principia Juris Cic. ucder the T'nk, De pcricu-
lo 13 commodo rei venditrt, 10. That the Learned cann't reconcil;; this La\v with the common Opinion ; and as for h'mil'clr,
i^o declares freely, tliat he may fay, without any Injury to the R^maji Lawyers Reputation, that they ne\_cr were peiiedtly
ajrfed about th*t Matter.
C H
A P. V,
Firft, of
Bartering, Buying andSelling.
491
flioiilcl the Buyer, who has not ye: Iiad tlic Delivery or Letting of a Thing. For there, by the De]i\'ery
made him according to the Contrad, be deprived of we alienate our own, but here the Alienation is
t!ie
Goods, and yet p.i}^ the Seller il-.e Price of them
^
? made to us. What has been here faid of the Da-
The befi: way to diicover natural Equity, in tliis mage may be apply'd to the Gain alfo
' <*.
Point, is to dirtinguilii whether the Delay was ab- IV. Moreover 'tis ufual for this Contraft to be
folutcly neceflary,
''
for the Delivery of the Com- qualified with the Addition of fcvcral other Fafts,
niodity ;
or only occafion'd through the Default of according to the Pleafure of the Contractors, or the
one of the Parties ; and if occafioned, wliether by Law of the Land. Li which the Law of Kature is
the Buyer, or the Seikr? concern'd no farther, than that each Party ftands to
The firfl Cafe may be put thus ; fuppofe I buy his Agreement, pro\ided nothing abfurd, or unjuft
Cattle, which at prefent are at fome diftance, and the is contain'd in it, and that every Subjeft conform
Seller, in driving tliem to me, happens to have them himfclf to the Law of his Country, as he expefts to
intercepted by Robbers, Wohes, or fome otlier Ac- ha',e his Contract valid in it. Thus nothing is more
cident; in tliis cafe no doubt the Lofs is the Sellers, common, than to agree upon Payment of the Money
Where the Delay has not been neceflary, but oc- fometime alter the Delivery of the Thing
;
and alfo,
cafion'd by the Seller,
then too the Lofs lies at that the Thing fhall not be deliver'd till fuch a time
;
his door.
the Property, in the mean time, together with the
But if the Buyer be the Occafion of it, thefi he Gain or Hazard attending it, lying in the Seller
'
^.
{lands to the Lofs of it. For the very Moment that Befidcs, we frequently praftife what the Cii)ilians
the Commodity was due, and the Seller ready to call
"^
Addiclio in diem, which gives the Seller Lea^'e
make Delivery of it, the Property paft to the Buyer, to accept of any better Bargain, that fhall ofter it
and the Thing then began to belong to him only
^.
felf by fuch a day. This may be done
'
two ways:
And therefore, if the Seller out of Kindnefs keeps Firft, when the Bargain is compleated, but upon
in Cuftody the Goods, which the Buyer did not fo Condition that it fhall be null, if better Terms offer
much as commit to him in Truft, 'tis unreafonabie themfelves ; or fecondly, if it be only agreed defuturo,
to expert, that he fhould (land to the Cafualties that it fhall be a Bargain, if better Offers are not
that may attend them. But in Cafe the Buyer had made
f.
Li the former cafe, the Property pafles
committed them to his Cuifody, then muft tiiey be over to the Buyer; in the latter, it remains in tlie
look'd upon as a Charge, and confeqiiently the Re- Seller, till the Completion of the Contraft.
cei\er muft be free from whate\ef Cafualties may What they call
*
Lex Cvmmijforia makes
'
void
happen to them. In which Cafe, the Delivery of the Bargain, if the Price be not paid by fuch a Day.
tiic Commodity ought to be made by a Fiftion bre- And in this Cafe, either the SeSer may immediately
vis manus
'^,
but otherwife than is done in the Loan, deliver the Goods, and in Default of the Payment,
claim
">
The Roman Lawyers fay alfo. That in this laft Cafe the Seller is bound to Damages and Gains, /. e. he ought to indemnify
the Buyer from the Lofs he has had, or the Profit he has mifs'd of by his Delay. Si res vendita non tradatur, in id quod interefty
ngitur; hoc
eft,
quod rem habere interell emptoris, cum per venditsrem fteterit, quo minus rem tradat, omnis utilitas emptoris
in reftimationem venit ; qua mode circa ipfam rem
eonfiftit.
Neque enim,
Ji
potuit ex vino (puta) negotiari,
ig" lucrumfacere, id
teftimandum
eft,
nov magis
qiiamfi
triticum emerit, &c. Dig. Kb. 19.
'
_
^
In this Cife the Lawyers affirm,
"
That ifone buy Wine, upon Condition that he'll come and meafure it, and, being meafured, will
" dr,iw it at a certain Time ; the Seller, after the Term, may pour out the Wine, to make ufe of the Hogfheads, having given
"
Notice to the Buyer firll." Licet autem vciiditori vel effundere vinum,
Ji
diem ad metiendum praftiluit, nee intra diem admen-
Jum eft
; effundere antan non ftatim potcrit, priufqumn teftando denunciet emptori, tit aut tollat vinum, autfciatfuturum, ut vinum
effunderetur. Digeft. lib. 18. tit 6. De periculo S: commodo rei vcndita;. Leg. i-
L. 2. c. 12. f. 16.
b
L. 17. p. 549.
Ed. Gen. Cafauk
c
Ut in Velabro Olearii de qu vidt Erafm. Adag.
*
JdJ. ?lin. J. 8- c.
i"]
. de er'inaceo, L. un. Cde Mmopol. L.6.
D,deextraord. crim.vcACujaciuiObJ. 10.19.
* Arifi.
Pol.
1. I. c.
7. (i i) Diog. Laert. 1. i. f. 26.
f
Vid. Cicer. de DiviniUt. 1. 1. c.
49.
chap:
498
BookV.
CHAP. VI.
Of
Renting
and
Hiring.
I. What
Things Hiring hath common -with Buying.
II. The certain Ufe of a Thing,
if
it be intercepted,
tends to the Lofs of
the Lejjor.
'
REnting
and Hiring
%
whereby
the Ufe of a
Thins?, or Labour.is granted tor a certain Rate
', bears fome Affinity to Buying and Seizing, and may
be brought under almoft the lame Rules
'".
For the
Rent oiWages anfwers the Price ;
and the Ufe
of the
Thing or the Labour anfwers the Property \yhich is
acquired by Buying;
and as the Contraft of Buying
and Selling is compleated, when the Price is agreed
upon, fo is this of Renting and Hiring, when the
Parties are agreed about the Rent and Wuges
''
'^.
And as a Thing fells the cheaper, when fold in Fa-
vour of the Seller, and the dearer when in Favour of
the Buyer ; fo in Renting and Hring, if a Man is at a
Lofs for a Tenant, or wants sVo.k, he is contented
with fmall Rent o"lVages; but if .his Land or Work
is fought after, he may demand much greater. Laftly,
as in Buying and Selling 'tis generally & Seller's Buli-
nefs to name the Price
'^, and the Buyer ultimately
refolvcs unon it ; fo is it alfo in Renting and Hiring '.
"
jVliofcBufinefsisittoairigitaePrice?
Hewaodc-
*'
livers theTning,
orhetiiatreceiwesit?
Hewhode-
*'
livers k fe-.ms to leave it to the other :
As tliey fay
"
Protagoras
iSid to do, for whatever he taught:, he
*'
left:
it'to die Sohcir to fct a Value upon what he
"
kam'd,a'id w as p^id accordingly-" ^ri/i. Nic. 1. ix.
c. I.
Tiio'
concerning this Cuttom of Protagoras
he himfelf thus fpeaks in Plato, in the Dialogue that
bears his Name.
"
M> way is this, when I ha\e taught
"
any one, if he pleafcs, he gives me as much Money
"
as I
demand ; if not I bring him into the Temple,
"
and make him
declare upon Oath what he thinks
"
my Teaching is worth, and fo much I recei\e."
But as he who buys any Commodity, without a-
III. The uncertain regularly to the Lcfs of
the Lejjee.
IV. Whether the fame Work may be Let to many
together.
greeing upon the Price, is fuppos'd to oblige himfelf
to the common Price of it ; fo in this Contrafl:, if
Terms are not agreed upon,
**
it is left to the
Equity of the Perfon Renting or Hiring, who is ne-
vertiielefs oblig'd to give as much as is ufually gi\
-
en
'. That way of paying for a Work ot: flea-,
fure, which A.iftotle
'^
mentions,
'
is a perfed
Ca\ il. A certa n Perfon promis'd a Mujician the bet-
ter he play'd, the more he jhould be regarded. The
next Da,, 'when the Mujician claim'd his Prcmife, he
reply d that he had repay d Pleafure with PUafurt
*.
But Arijlotle was right in faying. He had as good re-
ceti/ed nothing, Jince he did net receive that vshich he
expecied. Reiiius ftmilem cavillativne7n adhihuit
Bochoris apud Plutarchum, Demetrio, pag.^oi. D.
Qjiim quidam amaret Thonidem meretricem, pcpcfit
ilia ingentem pecnisfmmam. Adolefcens inde, cum
in fvinnis fiiii vifis effet cum ilia ccncumbere, libtratus
efl
libidine. Ob id mercedem ah ilio inftitit Thmis
judlcio exigere. Crgnjta caufi jujfit BoJ:oris illi
quantum pcftnlwuerat Trnis argenti in ijas numera-
tum hue atque iUncmanujaclare, ac meretricem um-
bra frui.
Qtia-iquamfcutentiamhanc arguit Lamia
iniquitatis. Ni.que enim, inquit, ndemit meretrici
umbra pecuniae cupidttatem, fomnium vera aj/tore a-
dolefcentem expediuit. In this Contra(9: alfo, if any
Damage happens to the Labourer, whilft he is a-
bout his Work
'',
'tis his own Lofs, and not the
Hirer's S. Among the Ephefians there was a re-
miirkablc Law concerning Architefts, that if the
Charge in Building amounted to a fourth Part more
than what the Aichiteft had computed it, he was
bound to make it good out of his own Pocket
i'
Mr. ^AKB. NOTES on Chap. Vt
I-
Mutunm.
Jac.
Gothofredi
DJff'ert.
de aqualitate fj fuuSlione in mutuo.
M-.
Barbeyrac's notes (tfz Chap, VII. . i.
TheWorJs of the IiiJIituUi Me,
"
Mutui autem datio in iis rebus confiftit, qua: pondere, numero, menfura contlant; veluti
"
vino olco, fruniento, pecuniS numerata, xre, argento, auro, quas res aut numcrando, aut metiendo, aut adpcndendo, in hoc
'
damus ut accipientium fiant. Et quoniam nobis non ca;dem res, fed alia; ejufdem naturae & qualitatis redduntur : inde etiam
"
niutuu'm
adpellatum eft, quia ita ^ me tibi datur. ut ex meo tuum fiat." Injl. lib.
3.
///. 15.
See Cujas Obf. 11.37.
*
Res
fungibiles.
See what is faid Lib. i. c. z.
lo. 'Note 3.
The Word Fungibilis is not found in the Romtin Law; but
TurBio is ufed in the fame Cafe, tho' it may be Joubtcd whether the Antient Lawyers called, Res qua in genere fuofunRionem re-
citiunt
what the Modern have abridg'd into Res fungibiles. The Law upon which it is grounded, is plainly corrupted, and
ought to be read, in all Appearance, as Mr. Bynkerfhuek explains it, Obferv. i . 10. Mutui datio eonjifit in rebus, qua pondertt
numero,
menfura
conflant ; quoniam eorum datione
poffumus in creditum ire. ^<e in genere fuo folutionem recipiunt per
funfiioiiem,
quam fpeeie.
Digeft. lib. 1 2. tit. 1 . De Rebus creditis, &c. Leg. 2. i z. c. (if we underftand turn before qunm
fDccie]
In thefe fort of Things we pay what we owe, by reftoring another Thing of the fame Kind and Quality, as well as by
rctiirning
the fame we have received.
^ .,..,...,.-
3
The
Words of the Digefts
are, Nam in eateris rebus idea in creditum ire mn poffumus,
quia aitud pra alto invito creaitort
filvi
mnptefi.
Digeft. lib. 1 2. tit. i
.
De Rebus creditis, &c. Leg. 2.
i
.
M-. B A R B. NO TES on
II.
'
So the Law
fpeaks, Non potefl commodari id, quod
ufu confumitur, nififorte ad pompam t>el oftentationemquis aeeipiat. S<epi_
tt'ain ad hoc
commodantur
pecunia, ut diets gratia numerationis loco intercedant. Dig. 1. 13.
tit.
5.
Commod. vel cont. Leg. 3. 6.4.
*
The true
Chanider of Things, call'd confumable Goods, is, that they perifh in the ufing, as our Author fays. Now there ari
two forts of
Confumption
: i . Natural. 2. Civil. Natural Confumption hath place either in fuch Things as are loft in the XJki
IS thofc arc which we eat and drinlc ; or in fuch as are fubjcft to be eafily deftroycd, tho' we do not meddle with them, as the
Fruits of Trees, is'e.
For as for thofe which decay infenfibly as we ufe thcni, but don't ahogcthcr perifh, as Cloathf,
Earthen
Chap.
VII.
Of
the Loan
of
a
covftimdble Commodity,
50^
III.
Money,
which commonly goes by Number, rowed, and may be demanded back as fiicii. And
or
Counting,
Gold and
'
Silver in Bullion, Bread, therefore the Foundation of thcfe Aftions may not
&c.
(which
pafles by Weight) Corn, Salt, Wine, improperly be call'd a
'
tacit Borrowing
'^.
Thus
Beer Oil, &c. (which are fpecified by Meafure) and, Mauritim the Emperor having given Childehert, the
in "eaeral, all foits of Provifion
j
as Flefh, Eggs, French King, Money to dri\'e the Lo^nbards out ot
Milk and even intire Animals, conlider'd as Pro- Italy, after he had made Peace widi them, demand-
vifion
corne under tlie Name of confumahle Commo- ed it back : Childehert indeed would not fo much as
dities^.
For fuppofe I am to make an Entertain- vonchfafe him an Anfwer, but that was becaufe lie
mcnt and liavc not ProA ifion enough at Home, or was more powerful than juft. Paul Warnefrid. de
Money to buy it, I may borrow of my Neighbour, geft. Longobard \
not only Eggs and Flefli, but Fifh, Lobilers, Hares, V. Some Years ago Sahnalius and fome Civilians
Hens
Geefe, and c\cn Slieep and Calves, upon had a Difputc, U hether the Loano/ confumable
Condition to repay him again in kind
''.
Fair Pa- Commodity v:as an Alienation ? Now it is plain,
per may likewifc be brought under the fame Dene- fmce the ordinary Ufe of fuch Things confills ill
mination, as being confiimd in the Ufe
;
for Paper the Confumption of them, they muft be made over
once fcribbled upon is loft for any other Writing, to the Receiver, with full Power to difpofe of them
In (hoit under this Denomination may be reduc'd as he pleafes ; which cannot be done without in-
any fort of
Commodity, which can be detcnnin'd vefting the Property in him. But becaufe die Credi'
by any certain
Meafure, and which (if after it has tor gives, in order to receive back, and die Debtor
been apply'd to its genuine and principal Ufe, it receives, in order to refund; riierefore neither is the
cannot be intirely
reftored again to its former Con- Eftate of the one leflen'd, or the Eftate of the other
dition) is capable of being repaid in kind. For increafed by it. Unlefs the Creditor may be rather
fuch fort of Tilings, altho' they are generally the thought a Lofer, having only an Aftion againft the
Matter of Sale, yetYomctimes happen to be borrow- Debtor's Pcrfon, in lieu of his Money, which, by
ed. As if, v.g. I fhould procure a certain Quan- Reafon of the Trouble and Uncertainty attending it,
tity of Cloth tor my own Ufe, and fhould let a may be reckon'd lefs worth than the Money it felf.
Friend, who has immediate Occafion for fome of And hence it is, that as Debts, due to any Man, are
the fame fort, and has not wherewithal to buy it, look'd upon as Part of his Fortune
;
fo a Man is
make ufe of it, upon Condition to return me as fuppofed to be worth only fo much as remains to
much and as good of the (time kind. him after his Debts are paid. And he that owes
IV. And this Contrad is perform'd not only ex- more than his Eftate comes to, may fairly be faid
prefly, but fomctimes tacitly : As fuppofe I fhould to be worth lefs than nothing. To tins Purpofe
pay a Man Money by Miftake, which I did not was that Sajing of Cefar's, that he wanted 2500
owe ; or (hould give a Man Money for fome Rea- H. S. to be worth notiiing, App. de hello civil. 1. iL
fon which afterwards does not appear; in this Cafe
p.
43
2. B. Ed. H. Steph. Hence^Money borrowed is
the Roman Law admits of an
AElionfor Money call'd as alienum, another Man's Money
;
not that
paid v:here not due, and /or fome Reafon
-which does the Perfon borrowing has not the Property of it, but
not appear.
For fince fuch Money was not paid as becaufe he receiv'd it upon Condition to return as
a Gift but as a Debt, or for the procuring an E- much. On the other fide, he who is out of Debt, may
quivalcnt,
and yet the Receiver became Mafter of fay, Meo fmn
dives in are. The Money that I have is
ic; it is the fame Thing
'
as if it had been bor- my own. In a word, he that lends Money does in-
W.ire, i^c.
they don't belong to this Place ; and 'twas an Overfight of Tribonian to exclude deaths from the Number of an
Ufufr'ua, properly fo cdl'd. Inftitut. Hi. 2. ///. 4.
2. Confumption Civil hath Place in Things, whofc Ufe confifteth in being
alienated,' altho' they have a continual Being. Such are not only Money, but all Things vi'c barter with, as alfo Things made
ufe of in Buildint^, and all other Materials for Compofitions, and Work. See lib.
4. r. 7.
i o. .above. Upon this Foundation
there are two fons of Things call'd confumable
Commodities: One, which are fuch in their own Nature, and unchangeably
fuch; the other, which depend upon the arbitrary Will of Men, and mutable Appointment. The firft areTuch whofe ordmary
Ufe confiils in their Natural or Civil Confumption: I lay, ordinary Ufe; for tho' the Owner may lend fometimes, for Exam-
ple, a Sum of Money, merely for Form and Appearance, and a Beam only to fupport a Building; yet, as that is r.ire, it has no
reff'ard to Laws, which refpeft Things that commonly happen only. The other fort of confumable Things contains fuch, as
tho' they may be ufed or lnt without Confumption, are often appointed to be fold, or are dealt in after fome other Manner; fo
that according to the Defign of him of whom they are borrowed, they arc fometimes for Confumption, and fometimes for Ufe.
As for Example, when a Man who has a Library for his own Ufe, lends me a Book, he intends that I Ihould return the fime
Copy ag.ain ; fo'that if I would give him another as good, he is not obliged ordinarily to accept it: But if he of whom I borrow-
ed the Boo!:, be a Bookfellcr, or Trader in Books, 'tis fufficient that I return him another Book as good; becaufe, as he keeps
it for Sale only, 'tis indifferent to him, whether I reftorc him the fame Book, or another as good. 'Tis the fame in other forts
of Goods, unlefs they be fuch as are very rare, or curioudy wrought, as fome fort of Druggs not common, a Watch, Mathe-
matical Inllruments, an Air-Pump, or other Inftrumeats to try Experiments, l^c. becaufe 'tis hard to find others ot the fame
Nature and Goodnefs, which may bo returned for what's borrowed. This is taken out of Mr. Thomasius's Difcourle before
quoted, De pretio affeilionis in reifungibilis non cadin'.e, c. i
.
1
6,
^c
Mr. Eakb. NOTES on
^
111.
We may give Gold for Silver, and pay it in other Kinds, unlefs it be otherwife agreed on. See dr/j. Van By!ikerfioek''i
Obferv. 1.9.
_, ,
M-. Barb. A/OT^Ei" o
IV.
. .
'
It is not ncccffarv to fuppofe a tacit Lending. The Njiure of the Thing fufficiently fliews the neceflity of Rellitution,
as appears by the Author
himfelf But if it be fufficient to render an Equivalent, yet it does not follow
that it Ihould be by
virtue of a tacit Loan; but 'tis becaufe it cann't be otherwife reftored, or becaufe 'tis all one whether the Thmg be reco\ci-cl la
fpecie, or by an Equivalent. See what is faid of Quafi-Contrafts in feveral Notes above, and among others on //*.
4.
<r.
1 3.
&
1
3.
I ufe the Word Ufury to avoid the ill Phrale of Lending at Intcrert. But fome Authors who ret.iin fome Relicks of Popery,
declaiming againft the common Opinion of the Proteftant Divines and Lawyers, malicioufly affcft to ufe the Word
Ufury alone,
and fay, for Example, that Ufur'^ is allowed, or not allowed, bccaufe that Term is become odious through the Abufe which is
often mide of a Contrail innocent enough in itlilf, and originally denoted by it.
*
This appears by the Law of
Mifi^
ilfelf ; for it forbids to opprefs the Stmnger and do him any Injury, Exod, xxii. 21, xxiii.
9.
Deut. xxiii.
7.
xxvii. 19, See Mr. Noodt, Dcfoenore i^ ufurii, lib. 1. c. 10.
p. 66, &c.
3 And therefore they are defervedly cenfurcd by Juvenal, Sat.
14. v. 103, 104.
Non non/lrtre z'ias, eademnififncra colenti;
^refitum adfontemfoloi deducere -verfos.
Ask them the Road, and they fhall point you wrong,
Becaufe you do not to their Tribe belong:
They'll not betray a Spring to quench your Thirft,
Unlefs you fhcw them Circumcilion firft.
Mr. D R Y D E K.
"
If that were fo, faith Mr. la Pincette, in his Treatife Oflr.ttrel}, God would not have excepted the poor Strangers, as
" they are not excepted among thofe that are condcmn'd to Death without Mercy, See Lev. xxv.
35,
36. But tho' God doth
"
not approve that Intereft ihould be taken of any poor Stranger, he doth not form.iliy forbid any part ; for the Law cited here
"
concerns Prolelytes, who were, as it were, n.uuralized, and enjoved the fame Privileges as the /fi-i/-tryj." See jrod'. xii.
48.
&c. Numb. XV.
14, Sec. and Mr. Noodt, ubi fupra, p. 60. We fhould rather fay, as Mr. / P/<jfr//i: alfodoes, that the Ex-
prefBon of tlie Law, which allows giving of Intereft, is general, and there is no Reafon to rellrain the Senfe. 'Tis to no Purpofe,
that St. Amhrofe luppoiing of his own Authority, that the Permiffion only refpefted the feven Nations of the Canaanites, who
ought to have been deftroyed, faith in his Book of Tobiai, cliap. xv.
"
That it was a lawful Aft ofHoftility, and that fince they
"
might have fliin thofe Nations by the Right of War, by much greater Reafon they might be allowed to fpoil them of their
"
Goods ; for he fays. Lending on Ufury was an eafier Way, and pleafanter Means to impovcrifh and ruin them." Mr. Noodt
anfwers this, p. 65.
"
That when one lends to, or makes any other Contr.ift with an Enemy, he treats with him, not as an
"
Enemy but as a Man, towards whom confcquently he ought to obfervc the Law of Nature and Nations, and on that Ac-
"
count fufpend all Afts of Hoftility. Further, God allowed the Jetvs alfo to take Money at Intereft of Strangers ; and then
"
we may as well fay. That God would have Strangers to impoverifli and ruin his own People by it." Mr. Noodt urges many
other Things, which utterly overthrow St. AmbroJe\ Notion, and which obviate all the Evafions which that Father, and fuch
as are of his Opinion, could devife. We may obferve alfo, that at one Time, the Lending at Ufury was forbidden at Rome, from
one Citizen to another, altho' it was permitted in rcfpcft to the Latins, who were their Allies. See Tit. Liv. lib.
35.
c. 7.
5 We may find thefe two Reafons unfolded, and iiipported with feveral other Rem.irks, in the forcmentioncd Chapter of Mr.
.
Noodt's Book Defa-nore y ufuris, p. 62, i^c. We (hould alio do well to read ^vhat
J.
Frederick Gronoviiis fays in his Trea-
tife, DeCentefimisi^ Unciii Ufuris, Antexeg. i, p. 467,
^c wliicii follows his Book De Seflertiis, Sic, Edit. 1691.
De Ritibas llebraieis, p. 2. c. 5.
> See Mr. laPlacttte'i Trcatifc upon Ufury.
As Selden in the aforecited Place informs
u, ' See Mr. Le Clerc upon the Place abovccitcd.
Chap.
VII.
Of
the Loan
of
a confiimalh Commodity,
507
<!ry,
orManiifafturcs; Merchandife was fimplcand another;
for Ufury laid upon Hushandmen is every
moderate,
tlic Sjcrets of Trade and Na\igarion be- where opprefjlve. Befides, Mojes cndeaxour'd by
ing not laiown to tliem; and in fuch a State no that Law to endear them to one another; and they
one borrows, but when he is preft with Neceffity.
had the more frequent
Occafion to put it in Pra-
And therefore Deut. xxviii. 12. it is mention'd as dice, becaufe then only fmall
Sums were borrow
-
an Argument of the greateft Happinefs
;
Thou/halt
ed, and thofe too by the meaner fort, and fuch as
lend titito many Nations, and thou jhalt not borrow ^
ftruggled with Want and Po\-erty.
From hence
Since the Gains in fuch a Cafe, could not but be Phlio Judaus
'^
inforces the Exercife of Charity and
\ery fmall, the leaft Ufury imaginable muft needs
Liberality among Fellow-Subjeas *.
Which Vir-
bc very burthenfome. And where the Money bor-
me the great
Legiflator has indeed
eftablifhed
by
rowed is laid out upon the Neceflaries of Lifc, it
feveral other Laws. See Exod. xxi.
10, 11. xxii,
will be next to impoffible ever to recover it; for how 22,
23, 25, 26, 27. xxiii.
4, 5, 9,
n, 12, Lev.
can
your Labour be ableto bring you out of Debt,
-xix.
9,
10,
13, 33.
xxiii. 22. xxv.
6, 10, ir,
35,
when it was not fufficient to fupport you from Bor- 3<5, 37, 39,
&c. Deut. xiv. 28, 29. xv.
2,
4, 7,
rowing?
"
Upon this Account the State of ^f/;e;
8, 9, 10, 11. xxiii.
24, 25. w\v. ;o,
11, 12,
13,
"
was involved in fuch Troubles, by means of 7-
14, 15, 19, 20, 21. xxvi.
12,
1
3.
*'
fury,
that it could not be remedied otherwife than But now Money is borrowed for other Ends,
"
by
Means of Solon ^ ffaodx^em, i. e. Shaking
cff
viz,, in order to increafe and improve one's Wealth.
"
the Burthen". Vid. Plut. Solone, which Mifchief When a Man borrows for this Purpofe, why fhould
Rome alfo felt in its Infancy, another lend for Nothing ? Nay, 'tis an unreafona-
Groti us
^
brings this as one Reafon among others ble Thing, when you vaftly improve your Fortune
of the Law iii Deut. xxiii. 19. That the Chief Riches with my Money, not to admit me into fome
"
Share
0/
the Jews lay in Husbandry and Money, whereat of the Gain: Fori, in the mean time, am debarr'd
7nc,ft of
the neighbouring Nations made
vaft
Returns from making that Advantage which I might other-
hy Merchandife : And therefore Ufury was allowed wife have expefted by applying it to my own Ufe.
the Jews
in their Dealings with them, which, with Befides, I have parted with fomething valuable, which
very good Reafon, was forbidden to be taken
of
one ought therefore to be confider'd : for in lieu of my
Money
-a Add. Deut. xv.
7,
8.
b
Upon Lui^t vi.
JJ.
^ De Charitate.
*
From all that has been faid, it appears, that David, Pf. xv.
5. mid Ezekiel xviii.
13. xxii. 1 2. give this Charaftef of a,
good Man, Thai he giveth not his Money upon Uftiry ; but they treat only of the Lending forbidden by the Law, fo long as the
Government of the 'Jews was in Being, i. e. that which was done by one
"Jew
to another. As for the Words of our Saviour
JESUS CHRIST, i;Ji? vi.
34, 35.
they feem to me, if we confider them in themfelves, or with their Connexion, not
to rel'peft Lending upon Ufury. His Divine Words are,
If
you only love them that liK<e you, what thanks have you? v. 32.
jind if
you do good to them that do gooJ to you, what thanks have yoti? Do not Publicans and zvicked Msn the fame? v.
33. Ani
if
sou lend to them
of
tvhom you hope to receive, what thanks have you ? Sinners lend to Sinners, that they may receive as much
again: But love your Enemies, and do good and lend, hoping for
nothing, and great Jhall be your Reward, and you jhall be Chil-
dren
of
the mofi High, for he is beneficent to the Unthankful and Sinners- This Phrafe, Hoping
fir
nothing, doth not in the leaft
refer to loving your Enemies, and Doing good, to Lending; and I wonder that no Man, fo far as I know, hath taken notice of
it. So Lend, hoping for nothing, plainly fignifies. Lend, tho' you cann't expedl that he that borro\vs fhould do the like in his
Turn. The Reafon which our Saviour ules, is taken from the moll noble Motive, and that is, to imitate God, who doth
Good to the unthankful and unholy, which makes the Thing very clear. But if we defu-e a greater Plenty of Proofs and Argu-
ments, let us read Mr. N o o d t's Firft Book De Faenore is' U/uris, and Mr. La Placette's Chap.
3. of his Treatife of
Intercll. The Truth is, JESUS CHRIST in that Text neither forbids nor approves giving of Ufury, nor had he any
Occafion to do it, fmce the Jews, to whom he fpake, according to their Law, could not lend one to another, but freely. It
belongs therefore to them, who condemn all Ufury in general, to prove, that it is unlawful in itfelf, and difagrceable to our
Goi'pel Difpenfation. But they'll never compafs their Defign, feeing, that tho' they have ftudied the Natural and Moral Law
with fo much Care, yet fome of them fliew not only grofs Ignorance, but at the fame time Weaknefs and Prefumption. A fa-
mous Cafuift, B-innes 2. 2 ^afi. 78. Art. i . Dub. i . owns ( as Mr. La Placette obferves ) that the Proof which the
Words of JESUS CHRIST afford, takes its Force, not from the Words themfelves, which may have another Senfe, but
from the Authority of the Popes and Councils, which have fo explained them. Thus the Knot is loofed, and they, who, tho'
Protcftants, dare let out themfelves into grofs Invetlives againft the Opinions of their own Party, fliew, that 'tis the Credit of
the Fathers that they moil value. But they make a Noife to no Purpofe. All their Declamations and fierce Contentions ferve
cnly to fhew that the Reading of the Fathers is capable of biaffrng their Thoughts, efpecially when it meets with a ferious Tem-
per, and fuch as are more careful to improve their Memory than their Judgment : For had thefe Men fo much Zeal for the Ho-
nour of the Fathers, as to judge of them fo long after their Death, as freely as they would of an Author of the laft Age, they
ought to prove by good Reafons, either that the Fathers were infallible, or are not guUty of the Errors imputed to them. And
I am willing that thev begin, for that End, with Lending upon Ufury, wherein they think themfelves to triumph ; and let
them fee whether they can confute the two Treatifes before quoted, the one of a Divine, the other of a Lawyer. Waiting for
what they'll do, I fay boldly of thofe Works, and fome others, that have difcover'd the Errors of thofe antient Chrillian
Doftors, That they are Iron, Steel, and Diamond for them. See what fhall be faid lower in the Note on
10.
^ This is what is called Intereft Lucrative, or Gain.*ul Intereft: whereas Compenfative Intereft is only a fimple indemnifying
a Man for a Profit ceafmg, and a Damage arifing. There is no Difficulty of any Confequence, but in the lail ; and he mult
Ihut his Eyes, that will not fee the Juftice of fuch an Intereft, ilnce in requiring it, no more is demanded, than what we had
when we lent it. If any doubts of it, he maybe fully convinced by reading of the 5th, 6th, and 7th Chapters of Mr. La Pl a-
c E T T e's Treatife of Intercfi. As to Lucrative Intereft, fomething may truly be alledged more fpecious to oppofe it
:
But if
we bring a Mind free from Prejudice, we fh-ill cafxly find that this Intereft is neither lefs innocent nor lawful than the Compenfa-
tive. What Mr. La Placette has faid upon it is folid, and from him I Ihall borrow fome Reflexions. As it depends on
the Creditor to lend, or not; fo 'tis at his Pleafurc when he purpofes to lend, whether he will pay his Money into the Hands
of the Debtor for feveral Years, or for one only, or for a Month, or for a Week, or for one Day only. Suppofmg then that
he can lend for a Day, or a Week, yet he is willing to lend for one or two Years, engaging himfelf not to demand it fooner,
why may not fuch a Renunciation, which depends upon him, and is beneficial to the Debtor, be fettled at a Price \
When one
has a Right of Service upon an Houfe or Field, he can renounce it for a Time, or for ever, and fet a Price upon fuch a Re-
leafe. The fame Thing hath a Place in the Bufinefs of Homages and Redemptions. Upon what .Account then is it for-
bidden to be ufed in the Right we have to call in what is borrowed ? 'Tis to no Purpofe to alledge, that wlien the Sum lent
remains in our Hands, 'tis very probable that it affords us no Profit; and is it not then an Injury to our Neighbour to make
him p.ay for the Ufe of it, when we lofe nothing burfelves ? Tnis Anfwer fuppofes two Things, and both of them alike falfe
:
I. That in treating with our Neighbour, he may enquii-e what w? fhall lofe by lending
him,
2.
This is a Confequence of
the
5c8
Of
the Loan
of
a confimialle
Commodity. B
o ok V.
Money I
ha\'e only an Action againft your Perfon,
which
cann't be profecutcd without fome Trouble.
For every Body does not conlidcr that of Martialy
B. 2. Epig. 13.
Et Judex petit, & petit Patronm :
Sohas, cenfeo, Sexte, creditori.
Ir may alfo happen by fome Accident or other, that
my Debt may be loft.
"
My
Slownefs, in
pa>ing
"
what I promifed, has made me afhamed ot my
"
Debt; however, I may avoid the Cenfure of the
"
world by paying it with Intereft." Find. Olynip.
Od. 10. l\ay fome timcsthe Delator muft be court-
ed and carefs'd, that-it may not be loft. And fome
borrow on purpofe to make their Creditors
depen-
dent on them. As die Alarefihal de
Rcchelaure,
when he was tax'd by. Lewis XIII, with taking
pait with the Duke of Aliyeiine, pleaded in Ex:ufe,
That he did not follow the Duke, but his Money :
For his Debt -would be but in a dejperate Condition,
if
he did not
ftick clofe to Ins Debtor ^
Belides it
is not
feldom that we lend to Perfons who are ut-
terly
,unable to pay. To wliom that of Martial
may be apply'd, L. i. Epig.
76.
Dimidium donare Lino quam credere tctum
Q:ii mavult, mavult perdere dimidiutn.
And
therefore fome are of Opinion, that it would
be for the advantage of the Publick, to allow none
but Merchants to take up Money at Ufe ;
for this
vvoxild make the Poor induftrious, and force them to
Frugalityj -who, fome of them, are not afraid to pay
Interei}; for Money to maintain their Extravagancies.
And monied Men, rather than let their Money lie
dead, would either take to Merchandize diemfelvcs,
or would put out their Money to thofe that do
;
which would make Trade flourifli, to the great Be-
nefit of the Commonwealth
'.
Grotius
^
is of Opi-
nion, That the legal
Imerefl
ought to he
ftated, not
according to the Gains
of
the Bvrioiver, but the
Lcfs
that thereby accrues to the Lender ; as in Buying and
Selling, and other Contracts, no regard is had to -what
the Receiver may ?nake oj the Coinmodity, but ivhat
goes aivay from the Seller. And, in this Cafe,
fa
much goes aisay as every Man, in his own Calling,
might and ufua'Jy does make
of
his AJonev ; Allowance
being made
fir
Haz,ards, which in fome Cafes art
fnore, in others lefs. With whom I fo far agree,
that no Man can complain, if his Debtor makes a
vaft and unexpeded Return of his Money : But yet
there is no doubt but I may demand higher Intereft
of him that makes a xtvy gainful Trade, than I can
of another who dri\'es a poor one.
X. The Arguments which are brought againft
Ufiiry are eafdy anfwer'd. It is urged, That the Loan
of
a confimahle Com?nodity ought to be given Gratis,
becaufe the Loan
of
all other "Things is fo. But I an-
fwer, That as I have a Power of granting the Ufe
of my Goods, that are not confumable, either Gratis
or for Rent, whereof the one is a Loan, the other a
Letting ; fo what iliould hinder me from granting
the ufe of my Money alfo, either Gratis, or
'
for a
certain Recompenfe ? But if you fhould inlift. That
that only is a Loan which is lent out gratis
;
the
Confequence would be, that Money lent upon Intereft
ought to be called by fome other Name, and not
that
the former. That every one is bound to do all he can for his Neiglibour, if it co.ls him nothing. If the firft be allowed, Com-
merce would be eflenrially uniult, for it confills only in endeavouring to get by what one fells ; but if the Profit made hath no-
thing contrary to Charity orjuftice ( which is not impoffible ) nothing hinders but that we may lawfully purfue it. It the other
.Suppofition be true, we mult condemn a Thoufand Things every Day, and have nothing to oppofe. As for Example
:
I have
Xwo.Hbufes, ofwhichone isof no Ufe to me, but a Charge, becaufe no Body dwelling in it, it runs to Decay. Again, I have
two- Copies of the fame Book* of which one is of no Ufe. Does it follow irom thence, that I may not fell or let out that
Houfe or Book ? There are a Thoufand fuch Inftances, where it cann't be taken ill, if one fell the Property or Ufe of certain
Things which coil nothing, and are ufelefs to fuch as fell them, tho' profitable to fuch as buy them. Why then may we not
do the fame with Money, in lending it, as innocently as in other Things ? But there is another JProof more exadt, and taken from
the fameMatter. A Creditor allows his Debtor to make ufe of his Money lent him ; this is fufficient to entitle him to pay him
Ufe. In ihort. If we may lawfully let an Houfe, an Horfe, Oxen, Tools, and an hundred other Things of that nature, why
may we not do the fame with Money, and, in general, with every Thing that is ufed in Commerce ? Divers Things are anfwered
to this, of which we may find a Solution in the next Paragraph, and in the Treatife from whence this is taken. We fliall now-
only add the five Conditions which Mr. La Pincette lays down to make lucrative Intereft lawful : i .
That the Creditor is no*
otherwife bound to lend his Money freely. 2. That the Debtor obliges himfelf willingly to pay fuch Intereft.
3.
That the
Debtor may probably get by the Loan.
'4. That the Intereft is not greater than the Advantage he hopes to gain by it,
5.
Laft-
ly. That he does not ijo beyond the Bounds fixed by the Laws. Let us alfo oblerve, with the fame Author (Chaf, i 8.^ that
there arc two forts of Profit : i. Pofitive, when a Man gets that by his Money borrowed, which he could not otherwife have
had. 2. Negative, which confifts not in getting what one has not, but in keeping what we have already, or may at length
have, not in growing more rich, but to prevent being poorer. Borrowing is moft commonly of this laft Ufe, which happens
feveral Ways. As for Example: A Man owes a confiderable Sum, which he cann't pay, and pays 6/. fer Cent, for it; I lend
him the fame Sum at 4/. per Cent, he really gets nothing, but he aftually fparcs 2 /. fer Cent, which, were it not tor me, he
muft pay to his firft Creditor. Another hath need of Money, and not getting it, is forced to fell at a low Price thofe Goods,
whicii he was fure to fell dear in a little Time ; I lend him Money, w iuch he could not be without, and fo prevent the Lofs
he Ihould have had by his Goods, On thefe and the like Occafions it cann't be unlawful to take Intereft; for indeed 'tis as
good an Office to prevent a Lofs, as further a Gain. Moreover, this is the only, or, at leaft, the principal Foundation of the
Intereft paid to the Dircilors of the Bank called Motitt de Piete, an Eftabliftiment which all the World has found fo ufeful and
pro.fitable to fuch as are in Neceflity. We ought only to obferve, that tho' this fort of Intereft is not fo contrary to Jultice as the
other, yet it commonly is more oppoiite to Charity. The Need of the Borrower is fuch very often, that he is obliged to
borrow
either without Intereft, or content himfelf with an Intereft Compenfative, which hath not Place fo commonly in fuch
Loans as are made to them who borrow to make a poiitive Gain. To all that has been faid, we may join Chap.
5
and 6,
of the ift Book of Mr. N o o d t's Treatile.
Gramond. Hift.
Gal.\. t^. Diodor. Sic,], ig.c. 24. P/ul. Eumcne. p.
m, i^gi. C. Edit, Frunc. i62Q.
'Scptalium, de rationeJlatus, 1. 2. c. i
5.
' Ad Lucam 6.
35.
fc
FiJ. Lud-
Mr. B A R B. NO TE S on . x.
We may add to thofe fpoten of here, a Contraft between three Contraftors, about which fee Mr. Pl a c e t t e's Trc:itif3
of Intereft,
chap. \ 4.
See alfo Mr. N o o D T, De Fan- iff Ufur, lib. i.e. i z. of which the Title is, Mcrts rigorem Juris Ca'
no/iici cir<a Vjuras inflexijfc ad tequittitem Juris Gentium, von tmnino improbantlbus ejus Juris interfretibus.
*
We (hall treat ot this, chap. 10.
14. following. Cum debitor (fay the Roman Lawyers) grat-.iita pecunia. utatiir, fotejl
creditor dcfruBlbus ret
fibi
pigncrata ad tnodum legitimum uj'uras rctinere, Digeif. lib. 20. tit. 2. //; quibus cauf.s, &c. Leg. 8
See Mr. N o o D T //i" Ufuris i=f Fan. lib. 2. c.
g.
'
Id quod intereft.
And they underftand by it as the Roman Lawyers do, as well the Profit that was not made, as the I-ofs
that pofitively accrued. Si commijfa
eft ftipuhtio, ratnm rem Dominum lyabiturum, in tantum competit, in quantum mea interfuit,
i. e. quantum mihi abeft,
quantumque lucrari potui. Digeft. lib. 46. tit, 8. Riitam rem haberi, &c. Leg.
1
3. See alfo Code, lib- "]
tit.
47.
Dt
Sententiis, qua pro eo quod
intereft, proferuntur, and Mr. N o o u t, ubi fupra,
lib. i.e. 1 2. 1. 2. c. 6.
a OecontmA. z.c.i.
Off-
2.
inftn.
e
De re rufticS, princip.
* Cato Major. e
Suet. i>
Auguft.
c.
39.
f
Appian, 1. 1. de Bella Civili,
p. 382.B.Edit. H. Stcph.
s f^id. Siracid.
29. i, 2, &c. Pul.
1
5.
ft
That Contribution-Money was called e(c-.
i
^^id. Cicer. de
Offic-
lib. 2. injin. Sec CAjaubon'''c, Comment upon
the i6th Chapter of TIpeophraftus's Charaficrs. ^
jjj, lib. 20. t. 2. I. 8. D- in quibus
cauf. pignus tacite ccontrai)-
1 See hereafter, Chap. 10. 14.
m
Among the Pcryf<?.(7.f
[^7
ia forbidden, but Mortgages aUo,wcd even under the
lax
commijjoria, Olcar. //;', Perf. h-
J.f. 36.
n
L. 2. c. 12. 21.
the
CH
A p. VII.
Of
the Loan
of
a
confttmalk Commodity,
5
1
1
the civil Law : for, according to them, the Ufury for his
Benefit to venture tiie Lofs, or to negleft
^
is afcertaiii'd and agreed upon beforehand : And the Gain that might be made of it
<^
?
the Damages allowed the Creditor, for what he XII. Laftly, It being cv ident that ' Men could
might have made of his Money, are, among othe