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The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). Vol. 2. https://oll.libertyfund.org/titles/1947,
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Grotius's Rights of War and Peace is a classic of modern public international law which lays the foundation for a universal code of law and which strongly defends the rights of individual agents - states as well as private persons - to use their power to secure themselves and their property. This edition is based upon that of the eighteenth-century French editor Jean Barbeyrac and also includes the Prolegomena to the first edition of Rights of War and Peace (1625); this document has never before been translated into English and adds new dimensions to the great work.
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This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
I. What Causes of War may be termed justifiable.I. 1. Let us now proceed to the Causes of War, I mean such as are properly said to justify it;1 for there are some Motives of Advantage, sometimes different from just Occasions, that determine us to take up Arms. Polybius2 accurately distinguishes these two Sorts of Causes, the one from the Edition: current; Page: [390] other, and both from the3 Beginning of the War, or that which gave Occasion to the first Acts of Hostility, as was the Stag4 wounded by Ascanius, whence arose the War between Turnus and Aeneas. But tho' there be a manifest Difference between those three Things, yet the Terms made Use of toEdition: 1738; Page: [128] express them are commonly confounded. Thus Livy, in the Speech which he puts in the Mouth of the Rhodians, calls Beginnings what we call justifying Reasons.5 You Romans,6 (say the Deputies) profess to believe that the Success of your Wars are happy, because they are just; and you glory not so much in the Victory that determines them, as in the7 Beginnings, or because you do not under take them without Reason. Edition: current; Page: [391] In which Sense Aelian stiles them ἀρχὰς πολέμων; and Diodorus Siculus, treating of the War of the Lacedemonians with the Aelians, calls them προϕάσεις and ἀρχὰς.
2. And these justifying Reasons are indeed our proper Subject here, where it will be no Ways impertinent to mention that of Coriolanus in Dionysius,8 Let it be your principal Care, that the Cause of your War be just and honest. And Demosthenes,9 As in the Building of Houses, Ships, &c. the Foundations ought to be firm and solid: So all our Actions and Enterprizes whatever, should be founded on the substantial Basis of Truth and Justice. Thus too Dion Cassius,10 We ought chiefly to look to the Justice of our Cause; for with that we have Room to conceive good Hopes of the Success of our Arms, and without it we can depend on nothing, even tho' at first Things should succeed to our Wishes. So also says Tully,11 Those Wars are unjust that are undertaken without Cause. And in another Place12 he blames Crassus, because13 he had passed the Euphrates, When there was not the least Grounds for a War.Edition: current; Page: [392]
3. What has been said touching the Justice of the Cause, ought to be observed in publick Wars, as well as in private. And Seneca with Reason complains of the Difference that is put in that respect,14 We punish, says he, Murders committed between private Persons: But do we act in like Manner with regard to Wars, and the Slaughter of whole Nations? It is a glorious Crime, Avarice and Cruelty reign there without Restraint.—Barbaritiesare authorised by the Decrees of theEdition: 1738; Page: [129] Senate, and Orders of the People; and what is prohibited in private15 Persons is enjoined by the State. 'Tis true, those Wars that are commenced by publick Authority have certain Effects of Right, as the Sentences of Judges: Of which hereafter: But are therefore not less criminal, if begun without a just Foundation. Thus was Alexander, for unjustly invading the Persians, and other Nations, deservedly reproached by the Scythians as a Highwayman, in Curtius,16 and by Seneca17 and Lucan18 branded with the opprobrious Names of Thief and Robber; by the Indian Magi he was taxed19 with criminal Ambition, and by a Pirate was told he was the20 same himself. So Justin, Edition: current; Page: [393] speaking of his Father Philip, said,21 that two Kings of Thrace were dethroned by the Fraud and Villany of a Thief. To which may be referred that Passage of St. Austin,22 What are Kingdoms without Equity, but so many great Robberies? So that of Lactantius,23 That Conquerors being dazzled with a vain Glory, miscall their Vices by the Name of Virtue.
4. There is no other reasonable Cause of making War, but an Injury received: So says St. Austin,24 The Iniquity of one Side, that is, the Injury received, furnishes a just Occasion of War. Iniquitas in this Place is taken for Injuria; as if we should use the Greek Word ἀδικία instead of ἀδίκημα. So the Roman Herald,25 I declare, and call you to witness, says he, that that People has acted unjustly, and does not make us due and proper Satisfaction.
II. Justifiable Causes of War are, when for Defence; for the Recovery of one's Property, or one's Debt; or for the Punishment of an Offence committed.II. 1. Now, as many Sources as there are of judicial Actions, so many Causes may there be of War. For where the Methods of Justice cease, War begins. Now in Law there are Actions for Injuries not yet done, or for those already committed. For the First, When Securities are demanded against a Person that has threatened an Injury, or for the indemnifying of1 a Loss that is apprehended; and other Things included in2 the Decrees of the superior Judge, which prohibited any Violence. Edition: current; Page: [394] For the Second, that Reparation may be made, or Punishment inflicted; two Sources of Obligation, which3 Plato, and before him Homer,4 have judiciouslyEdition: 1738; Page: [130] distinguished. As for Reparation, it belongs to what is or was properly our own, from whence5 real and some6 personal Actions do arise, or to what is properly our due, either by Contract, by Default, or by Law. To which also we may refer those Things which are Edition: current; Page: [395] said to be due by a7 Sort of Contract, or a8 Sort of Default: From which Heads all other personal Actions are derived. The Punishment of the Injury produces Indictments and9 publick Judgments.
Baldus ad Leg. 2. Cod de serv. & aqua. n. 71. Wilh. Matt. de Bello justo, & licito.2. Most Men assign three just Causes of War, Defence, the Recovery of what's our own, and Punishment: Which three you have in Camillus's Declaration against the Gauls.10 Omnia quae defendi repetique & ulcisci fas est: Whatever may be defended, recovered, or revenged; in which Account, if the Word Recovered be not taken in a greater Latitude than usually it is, it will not include the suing for that which is our Due; which suing was not omitted by Plato, when he said,11 That War is not only undertaken when one is insulted, or plundered; but also when imposedupon, Edition: current; Page: [396] or treated in any fraudulent Manner. To which agrees that of Seneca,12 It is a very equitable Saying, and founded on the Law of Nations, Pay what you owe. And it was a Part in the Form used by the Roman Herald,13 That they neither gave, paid, nor did, what they ought to have given, paid, and done: And as Salust has it in his History,14 I demand my own by the Law of Nations. Saint Austin,15 when he said, that Those Wars which are to revenge our Injuries, areEdition: 1738; Page: [131] generally termed16 Just: He took the Word Revenge in a general Sense, which implies all Removal, Cessation, Abolition, and Reparation of Injuries, which appears by the Sequel, where there is not so much an Enumeration of the Parts, as an Illustration by Examples. So, says he, That Nation or City may be invaded, that shall neglect to punish the bad Actions of those that depend on it, or to restore what's unjustly taken from another.
3. Conformable to this Principle of natural Equity did the Indian King (as Diodorus17 informs us) accuse Semiramis, that she had commenced War against him, without having received any Manner of Injury. Thus the Romans argued18 with the Senones, that they ought not to make War on a People that had given them no Provocation. Aristotle observes,19 that Men usually make War on those who first have done some Injury. So Edition: current; Page: [397] Curtius20 speaking of the Abian Scythians, They were reputed the most just of the Barbarians; they never took up Arms, but in their own Defence:21 The first Cause therefore of a just War, is an Injury, which tho' not done, yet threatens our Persons or our Estates.
III. War in Defence of Life, lawful.III. We have before observed, that if a Man is assaulted in such a Manner, that his Life shall appear in inevitable Danger, he may not only make War upon, but very justly destroy the Aggressor; and from this Instance,1 which every one must allow us, it appears that such a private War may be just and lawful.Sylvest. verbo Bellum, p. 1. n. 3. & p. 2. It is to be observed, that this Right of Self-Defence, arises directly and immediately from the Care of our own Preservation, which Nature recommends to every one, and not from the Injustice or Crime of the Aggressor; for if the Person be no Ways to blame, as for Instance, a Soldier who2 carries Arms with a good Intention;Bartol. ad Leg. 3 Dig. de just. & jure. Bald. in l. 1. Cod. unde vi. Bann. 2, 2. Q. 10. Art. 10. Dub. ult. Soto, l. 4. Disp. 5. Art. 10. Val. 2, 2. Disp. 5. Q. 10. p. 7. or a Man that should mistake me for another; or one distracted,3 or delirious, (which may possibly happen) I don't therefore lose that Right that I have of Self-Defence: For it is sufficient that I am not obliged to suffer the Wrong that he threatens to do me, no more than if it was a Man's Beast that came to set upon me.Edition: current; Page: [398]
IV. 1. It is a Matter of Dispute, whether an innocent Person,1 who happens to be in our Way, and hinders that Defence or Escape that is absolutely necessary for the Preservation of our Lives, may be run through, or crushed in Pieces. There are some, even among Divines, who think it lawful.IV. But only against the Aggressor. And certainly, if we have regard to Nature only, the Engagement we lye under to maintain Society, is of less Moment than the Preservation of ourselves: But the Law of Charity, especially the Evangelical, which has put our Neighbour upon2 a Level with our Selves, does not permit it.Edition: 1738; Page: [132]
Card. Q. 33. l. 1. Pet. Navar. l. 2. c. 3. n. 147. Cajetan. 2. 2. Art. 67. Qu. 2.2. It was well observed of Thomas Aquinas, if apprehended rightly, that in our own Defence we do not purposely kill another; not but that it may be sometimes lawful, if all other Means prove ineffectual, to do that purposely by which the Aggressor may die; but we take this Course, as the only Means left to preserve our selves, and not as the principal End proposed, just as in the Judgment of Criminals condemned to Death: For he that is actually attacked, ought even then to chuse rather to do any Thing else, that may stop the Fury of the Aggressor, or disable him,Second. second. Qu. 64. Art. 1. than to secure himself by killing him.
V. In a present and certain Danger, but not in such a one as is only Matter of Opinion.V. 1. But here 'tis necessary that the1 Danger be present, and as it were, contained in a Point. I grant, if a Man takes Arms, and his Intentions are visibly to destroy another, the other may very lawfully prevent his Intentions; for as well in moral as in natural Things, there is no Point but what admits of some Latitude: But they are highly mistaken, and deceive others, who admit that any Sort of Fear gives a Right to take Edition: current; Page: [399] away the Life of another. 'Tis very justly observed by Cicero,2 that one frequently commits Injustice, by attempting to hurt another, in Order to avoid the Evil which he apprehends from him. So Clearchus in Xenophon,3 καὶ γὰρ ὀίδα, &c. I have known many People moved either by some false Report, or by Suspicion, who for Fear of others, and to be before hand with them, have done most horrible Injuries to those, who never would have offered, nor ever designed to offer them any Hurt in the World. So Cato, in his Oration for the Rhodians,4 Shall we ourselves be first guilty of that which we alledge they intended to do? It was excellently said by Aulus Gellius,5 That a Gladiator's Condition is such, that he must either kill or be killed; but human Life is not under such unhappy Circumstances, that we are necessitated to do an Injury to prevent the receiving one. And as Tully in another Place no less admirably expresses it,6 Whoever maintained, or to whom can it be allowed without exposing the Life of every one to the greatest Dangers, that a Man may lawfully destroy another, through a Pretence of Fear, lest the other should one Day kill him? To which this Passage of Euripides may be applied,7
Ἐι γὰρ σ' ἔμελλεν, &c.
Your Husband, say you, would have killed you: You should have staid till he actually attempted it. So Thucydides,8 What is to come is yet uncertain, nor should any one be so far transported with the Apprehensions of what may happen, as to engage in a declared Enmity, accompanied with present Acts of Hostility. The same Author, where he eloquently describes the Evils that Faction had brought upon the States of Greece,9 blames those People, because It was thought commendable in a Man toEdition: 1738; Page: [133] injure another first, for Fear of being injured himself. A very shameful Thing, as10 Livia calls it in Dion Cassius. Livy says,11 that By taking Precautions against what we apprehend from another, we give Occasion first to apprehend something from us,12 and we do to others the Injury we would repel, as if there were a Necessity either of doing or receiving Wrong. One may Edition: current; Page: [401] apply to such as act in that Manner, that of Vibius Crispus, so much celebrated by Quintilian,13 Who gave you an Authority thus to fear?
Bann. q. 64. Art. 7. Dub. 4. Bald. in Leg. 17. Cod. De Liberali Causa, & in. l. 1. Cod. unde vi, Less. l. 2. c. 9. Dub. 8. Soto, l. 5. qu. 1. art. 8.2. Tho' we were certainly informed, that a Person has conspired against us, or designs to lay an Ambush for us, or is preparing to poison us, to bring a false Accusation against us, to suborn false Witnesses, and to corrupt the Judges: Yet whilst we have nothing to fear for the present, on the Part of that Person, I maintain that we cannot lawfully kill him; if either such a Danger can be possibly avoided any other Way, or even if it does not then sufficiently appear that it may not be avoided. For Time gives us frequent Opportunities of Remedy, and there may many Things happen, as the Proverb has it,14 betwixt the Cup and the Lip. There are however both Divines and Lawyers, who are a little more indulgent in this Affair: But the other Opinion, which is certainly the safer and better, has also its Partisans.
VI. For the Preservation of a Limb or a Member. Card. in Clem. l. 5. tit. 4. De Homicid. &c. leg. si furiosus, &c. Covarr. ib. part 4 § 1 n. 2. Sylvest in Verbo Homicidium, 3. q. 4.VI. But what shall we then say of the Danger of1 losing a Limb, or a Member? When a Member, especially if one of the principal, is of the highest Consequence, and almost equal to Life itself; and 'tis besides doubtful whether we can survive the Loss; I am of Opinion, if there be no Possibility of avoiding the Misfortune, the Aggressor may be lawfully killed.
VII. That the same may be done on Account of1 Chastity, can scarce be here any Matter of Dispute; when not only the2 Opinion of the World, Edition: current; Page: [402] but even the3 Law of GOD,VII. Especially in Defence of Chastity. Sylvest. in Verbo Homicidium, c. 3. q. 4. Pro Milon. c. 4. Declamat. Tribunus Marianus. Vit. Mar. p. 413. Ed. Wech. has made it equivalent to Life itself. So Paulus the Law-Edition: 1738; Page: [134]yer,4 that to defend ones Chastity, tho' with the Death of him who would violate it, is but an Act of Justice. We have an Example of this in Cicero, Quintilian, and Plutarch, in the Person of one of Marius's Tribunes, who was killed by a Soldier. Among Women5 who have vindicated their Chastity, Heliodorus records that Act of Heraclea, which he calls ἀμύνης νόμον, &c.6 A just Defence of her injured Honour.
VIII. Tho' some agree with me in what I observed before,1 that tho' I may lawfully kill him who attempts to take away my Life, 'tis more commendable Edition: current; Page: [403] to die one's self than to kill another:VIII. Self-Defence may sometimes be omitted. Soto ubi supra, Sylvest. de verbo Bellum, p. 2. n. 2. Yet they will only grant it upon this Condition, that we2 except Persons that are useful to many others. But it seems to me not very safe to maintain, that all those whose Lives are of Advantage to others, are under such an Obligation as that, so contrary3 to Patience; and therefore I think this ought to be limited to those only whose particular Office and Duty it is to defend others, such as those who are ingaged to guard Travellers; or the Governors of the State, to whom we may apply that of Lucan,4 Since the Life and Safety of so many Nations depend on your Preservation, and so large a World has established you for their Head; it would be Cruelty in you to be willing to die.
IX. Self-Defence against a Person, very useful to the Publick. A Crime from the Law of Charity. Soto ubi supra.IX. 1. It may happen, on the contrary, that because the Aggressor's Life may be serviceable to many, it would be criminal to take it from him; and this not only by the Divine Law, both of the Old and New Testament, of which we have spoke before, when we shewed that the King's Person is sacred and inviolable, but also by the very Law of Nature. For natural Right, considered as a Law,1 does not only respect what we call expletive Justice, but comprehends the Acts of other Virtues, as of Temperance, Fortitude, and Prudence; so that in certain Circumstances they are not Edition: current; Page: [404] only honest, but of an indispensable Obligation. Besides that, as to what we were now speaking of,2 Charity does also oblige us.
Lib. 1. Contr. illust. 18.2. Neither am I ever the less of this Opinion, on Account of what Vasquez asserts, that A Prince who attacks the Life of an innocent Person, is ipso facto no more a Prince. A Proposition not only absurd, but even very dangerous too. For as the Right of Property, so the Right of Sovereignty is not lost3 by an evil Action, unlessEdition: 1738; Page: [135] it be decreed by some particular Law; but what Law was there ever enacted, that Kings should be dethroned for an Injury done to a private Person? Surely there is no such Law yet in Being, nor I believe ever will, for what a Confusion would it make? But what Vasquez lays down as the Foundation for this, and other Conclusions of the like Nature, is, that All Governments regard the Good of the People, and not that of the Prince; which, were it universally true, would be nothing to the Purpose. For a Thing is not destroyed,4 as soon as the Advantage of it ceases in some Respect. What he further urges, that every Man does only for his own Sake wish well to the Commonwealth, and that therefore he ought to prefer his own Good to that Edition: current; Page: [405] of the Publick, is likewise a weak Argument. 'Tis true every Man for his own Sake wishes well to the Commonwealth, but not for his own Sake only, it is also5 for the Sake of others.
3. The most judicious Philosophers have with Reason rejected the Opinion6 of those who think that Friendship is only founded on Indigence; for it is evident we are prompted to it by natural Inclination: And to prefer the Advantage of many Persons to my own single Interest, is what Charity often advises, sometimes commands. So Seneca,7 'Tis no Wonder that Kings and Princes, and in general all the Governors of the State, whatever Title they bear,8 should be loved by every one, and even more than private Persons, to whom we are nearly related; for if 'tis agreed by all wise Men, that the publick Good should rather be consulted than any private Interest whatever; it follows, that nothing should be dearer to us than the Person of him on whom the Welfare of All depends. St. Ambrose says,9 that Every one finds more Pleasure in saving his Country, than in extricating Edition: current; Page: [406] himself out of Difficulties. So the same Seneca;10 Callistratus and Rutilius, the former an Athenian and the latter a Roman, refused to be recalled from Exile, because it was better that two Persons should suffer unjustly, than that their Return should expose the State to any Danger.
X. That it is not lawful for Christians to murder a Man for a Box on the Ear, or such other slight Injury, or to avoid running away.X. 1. There are some of Opinion, that if a Man is in Danger of receiving a Box on the Ear, or any Injury of the like Nature, he has a Right of revenging so small a Crime, even by the Death of him that attempts it.1 If Regard be here only had to expletive Justice, I don't deny it; for tho' there be no Manner of Proportion betwixt Death, and so slight an Injury; yet, whoever shall attempt to wrong me, gives me from that Time an unlimited2 Right, that is, a certain Mo-Edition: 1738; Page: [136]ral Power against him in infinitum; upon a Supposition, that I am not otherwise capable of diverting such an Injury from my own Person. Neither does Charity of itself lay us under an indispensible Obligation of sparing the Offender in that Case; but the Gospel does expressly forbid this, for CHRIST commanded his Apostles rather to receive a Blow than to hurt their Adversary.Soto, ubi supra. Navarr. c. 15. n. 3. Sylvest. in Verbo Homicidium, 1. q. 5. Lud. Lopez, c. 62. Ubi supra. How much more then does he forbid the Killing of a Man to avoid the Blow? By this Example we are admonished to beware of what Covarruvias advances on this Topick, that The Ideas of natural Right being within the Extent of human Knowledge, it cannot be said, that any Thing is permitted by natural Reason, which is not at the same Time permitted before GOD, who is Nature itself.3 For GOD, who is so the Author of Nature, that he can, whenever he pleases, act above Nature, has a Right Edition: current; Page: [407] also of prescribing Laws to us, even in those Things which are in their own Nature free and indifferent. How much more then can he command us to do that which is naturally honest, tho' not obligatory?
Navarr. c. 15. Henr. de Irreg. c. 11. Victor. de jure belli, p. 5.2. It is therefore very surprising, that when GOD has so manifestly declared his Will in the Gospel, we should find Divines, nay Christian Divines, who maintain, that 'tis not only lawful to kill a Man, in Order to avoid a Blow, but even after it is received, if he that gave it endeavours to escape: For then, say they, one ought to recover one's Honour: Which to me seems as well contrary to Reason as to Piety. For Honour being the Opinion of some Excellency or Merit, he that can put up such an Affront, expresses a particular Excellency of Temper; and therefore, rather adds to his Honour than detracts from it. But if some Persons, through a false Notion of Honour, call this Virtue of Patience by a wrong Name, and so turn it into Ridicule, it is not material: For those false Judgments do not alter the Nature of the Thing, nor diminish its Value; nor did the primitive Christians only think so, but even the Philosophers, who said, that It argued a Meanness of Soul in Man, not to be able to bear an Affront. As we have elsewhere observed.
Soto, art. 8. ubi sup. q. 5. Doct. in Leg. 3. Dig. de Just. & Jure, & in Leg. 1. Cod. Unde vi. Vasquez ub. sup. c. 18. n. 13, 14. Sylvest. in Verbo Bellum. p. 2. n. 4. In Addit. ad Alex. Cons. 119.3. From hence it appears too, that we ought not to approve what many Casuists assert, that even by the Divine Law, a Man in his own Defence may kill another; (indeed if we consider the Law of Nature only, 'tis beyond all Manner of Dispute) nay, tho' at the same Time he may escape from him without any Danger: Because, say they, to turn one's Back is mean and reproachful, and below a Gentleman: Whereas in Reality 'tis no Ways a Disgrace, but only a vain Imagination, which ought to be despised by all that have a Regard to Virtue and Wisdom; in which Matter I am not a little pleased, that amongst Lawyers I have the excellent Charles Du Moulin of my Sentiments. Now what has been said of a Box on the Ear, and making one's Escape, may be equally applied to all other Cases where Man's true Honour is not injured. But what if a Man shall report any Thing of us, by which that Reputation we have with good Men, may possibly suffer? There are those who assert, that a Man may lawfully kill such Persons too;Pet. Navarr. l. 11. c. 3. n. 376. but this is not only extreme false, but highly repugnant to the Laws of Nature; for such an Action is no proper Means of preserving one's Character.Edition: current; Page: [408]
XI. Murther in Defence of our Goods permitted by the Law of Nature.XI. We now proceed to those Injuries that affect our Estates or Possessions;1 and here, if we have Regard to expletive Justice, I must own, that for the Preservation of our Goods 'tis lawful, if there's a Necessity for it, to kill him that would seize upon them. For the Inequality betwixt the Goods of one Man and the Life of another is made up, by the Difference betwixt the favourable Cause of the innocent Person, and the odious Cause of the Robber, as was before observed: From whence it follows, that if we have Regard only to this Right, I may shoot that Man who is making off with my Effects, if there's no other Method of my recovering them. So Demosthenes in his Oration against Aristocra-Edition: 1738; Page: [137]tes:2 Is it not, says he, highly unjust, and contrary not only to written Laws, but also to that which is common to all Mankind, that I shall not be suffered to use Force against him that robs me, and so commits an Act of Hostility against me? Nor does Charity, by Way of Precept, (if we consider it abstractedly from all Human and Divine Laws) disallow of this; unless in those Things that are in themselves too inconsiderable to be regarded; which Exception some Authors do very justly subjoin.
XII. How far permitted by the Law of Moses. Soto ubi supra. Mathesilanus Notabil. 135. Jas & Gom. in Inst. de Act. princ. Covar. ubi sup. § 1. n. ib. decimo., Less. Dub. 11. n. 68. Covar ubi sup. August. cit. in C. si perfodiens. De Homicid. Lessius, D. c. 9. Dub. 11. n. 66.XII. 1. But let us see in what Sense the1 Mosaick Law2 is to be understood, to which agrees that3 old Law of Solon, which Demosthenes urges against Timocrates, from whence4 the Law of the Twelve Tables was taken, and5 Plato's Maxim, in his ninth de Leg. all which consent in this, Edition: current; Page: [409] that they make a Distinction betwixt a Night and a Day Thief. But it is not agreed upon what Reason that Difference is founded. There is some who think it only regards this, that by Night it cannot be discovered, whether the Person who comes in upon you be a Thief or an Assassin, and therefore he ought to be treated as the latter; and others think that it turns upon this, that as the Thief cannot be known in the Obscurity of the Night, one sees no other Way of recovering one's Effects; but to me it seems, that those Legislators had neither the one nor the other of these Reasons in View. They rather intended to shew, that6 the Life of no Man was to be taken away merely on the Account of one's Goods, which would certainly happen; if, for Instance, I should shoot a Thief7 who is running away, to recover by his Death what he had stoln from Edition: current; Page: [410] me: But that if I am any Ways in Danger of my own Life, 'tis lawful then to secure myself, tho' it be at the other's Peril. Neither is it any Objection to me, that I brought myself into this Extremity, by endeavouring either to keep or recover my own, or to apprehend the Thief; for in all this there's nothing can be laid to my Charge, who am only concerned in a lawful Act. Neither do I any Injustice to any Man, since I only make use of my own Right.
2. The Difference therefore betwixt a Night and a Day Thief, consists in this, that in the Night it is not an easy Matter to have Witnesses; and therefore, if the Thief should be found dead, we readily give Credit to a Person who declares that he slew him in his own Defence, since he was armed with some dangerous Instrument. For this the Hebrew Law supposes, where it treats of a Thief taken,Edition: 1738; Page: [138] כמחתרת in the Act of Piercing, or as some better translate it, with a stabbing Instrument; in which Sense also the most learned Rabbies have expounded that Word in Jer. ii. 34. I am inclined the more in Favour of this Opinion by the Law of the Twelve Tables, which forbids the Killing of a Thief in the Day-time, unless he defends himself with some Weapon.8 It is therefore by this presumed, that a Night Thief defended himself with some Weapon. Under the Name of Arms or Weapon, an Iron, a Club, or a Stone are included; as Cajus9 observes on this Law. On the contrary, 'tis the Opinion of Edition: current; Page: [411] Ulpian, that what is said of Killing a nocturnal Thief with Impunity,10 is to be understood of killing him, when we could not secure our Goods and spare him, without running the Hazard of our own Lives.Edition: current; Page: [412]
3. This therefore is that Presumption which is allowed in favour of him who has killed a Thief by Night; but if Witnesses should chance to be present, by whom Proof could be made, that the Person who thus slew the other, was far from being in Danger of his own Life, then should we presume no longer in his Favour, but account him guilty of Murder. It is, besides this, provided by the Law of the Twelve Tables, that whoever shall surprize a Thief, either by Day or Night,Edition: 1738; Page: [139] shall signify it by an Outcry, (as we learn from Cajus11) in Order that the Magistrates or Neighbours may come in to his Assistance, or be Witnesses of the Fact: But because, as Ulpian12 observes, on the above-mentioned Passage of Demosthenes, this cannot be so easily effected in the Night as in the Day, therefore we give more Credit to the Person who asserts his Danger then.
Deut. xxii. 23, &c.4. Much like this is the Jewish Law in Case of a Rape, which if committed in the Field, the Woman's bare Word was Evidence sufficient; Edition: current; Page: [413] but13 if in the City the Case was otherwise, it being presumed that she ought to have called for Assistance, and might have had it. To this we may add, that tho' all other Circumstances were equal, yet one cannot so well discover what happens in the Night, nor know so well the Nature and Greatness of the Danger, and consequently, is more frightened than one would be at what happens in the Day-time. The Law therefore, as well of the Jews as of the Romans, prescribes the same Thing to the People that Charity enjoins, I mean, not to kill any Person merely upon account of Theft, but only when one runs the Hazard of his Life, by endeavouring to preserve his Effects. And as Moses Maimonides observes, No private Person is permitted to kill another, except in defence of that which, if once lost, is irreparable, as Life and Chastity.
XIII. Whether permitted at all, and how far, by the Gospel.XIII. 1. What shall we then say of the Gospel in this Affair? Does it allow the same that the Law of Moses did? Or does it, as it is in other Things more perfect than the Mosaick Law, require something more of us in this Respect also? In my Opinion it is not to be questioned but that it does. For if CHRIST has commanded, rather to part with a Cloak or a Garment than contend about it; and1 St. Paul, rather to suffer Wrong than to go to Law about it; tho' this be a Dispute where no Blood is shed: How much more should even Things of greater Moment be given up, rather than a Man's Life should be taken from him, who is the Image of GOD, and descended from the common Father of all Mankind? Edition: current; Page: [414] Wherefore, if there's any Possibility of preserving our Goods, without running the Hazard of committing Murder, we may certainly do so; but if not, we should rather be the Losers, unless it be of such Things on which not only our own Life, but even that of our Family depends, and which, by the Methods of Justice, can never be recovered, because perhaps the Thief is not known, and we are in some Hopes that the Affair may be concluded without any such Bloodshed.
Soto ubi sup. Lessius, Dub. 11. n. 74. Sylv. in Verb. Bellum, 2. n. 3.2. I know that almost all the modern Lawyers and Divines maintain, that in Order to save one's Goods it is permitted to kill him that would rob us, and that they even extend this Permission beyond the Limits prescribed by the Jewish andEdition: 1738; Page: [140] Roman Laws; for they say, if the2 Thief runs away after he has taken any Thing, the Proprietor may pursue and kill him. But I do not doubt but the Opinion I declare for was that of the primitive Christians; and St. Austin was fully persuaded of it, when he said,3 How can Men be guiltless in the Sight of GOD, who even for Things that a Christian ought to despise, shall embrue their Hands in human Blood? Indeed in this, as in other Cases,4 Christianity is fallen from its primitive Purity, and the Interpretation of the Gospel is by Degrees accommodated to the Customs of the present Age.Panorm. c. 11. De Homic. Less. ubi supra. In former Times the Clergy at least were obliged to follow the antient Maxim; but5 at Length they also were exempted from all Censure on this Account.Edition: current; Page: [415]
XIV. Whether the Civil Law permitting Murder in one's own Defence, gives a Right to the Fact, or only dispenses with the Punishment of it. Explained by a Distinction.XIV. 'Tis a Question with some Persons, Whether the Civil Law, which is vested with a Power of Life and Death, if in any Case it shall allow that a Thief may be killed by a private Person, does not so far excuse the Fact, as to exempt it altogether from being a Crime. Which in my Opinion is scarce to be admitted of. For first, the Law has no Power over the Life of any Subject upon every Offence, but for Crimes only of so heinous a Nature as to deserve Death. Now, I think the Opinion of Scotus very probable, who affirms that it is not lawful to condemn any to Death, but1 for those Crimes that were punished2 with Death by the Law of Moses, or for those that appear equal to these, upon impartial Examination. Nor does it appear, that the Knowledge of the Divine Will, which alone can quiet the Consequence, can, in an Affair of so high a Consequence as this is, be otherwise had, than from this Law only, which certainly has no where sentenced a Thief to Death. Besides, the Law neither does nor ought to give a Power to any Man, to kill him privately who has deserved Death, unless in Crimes of the most flagrant Nature; for else it would be needless to have Courts of Justice. Therefore, when the Law acquits that Man who has killed a Thief, it may be understood to take off the Punishment, but not to give him3 a real Right to the Act itself.
XV. When a Duel, or single Combat, may be lawful.XV. From what has been said it appears, that in two Cases we may justify a single Combat: The first is, when the Aggressor1 permits the other Person to defend himself, being otherwise determined to kill him if he Edition: current; Page: [416] does not fight. The other, when a King or Magistrate shall doom two Malefactors, both equally guilty of Death, to combat together. In this last Case, each of the Criminals may lawfully use the Means offereds him, for endeavouring to save his Life: But he who gave the Commandment, does not so equitably discharge his Duty; since it were better, if he thought it sufficient for one only to suffer, that a Lot2 should determine the Choice.
XVI. Of Defence in a publick War.XVI. What we have hitherto said, concerning the Right of defending our Persons and Estates, principally regards private Wars; but we may likewise apply it1Edition: 1738; Page: [141] to publick Wars, with some Difference. For first, in a private War, the Right of Defence is as it were, only momentary, and ceases as soon as one can apply to a Judge: Whereas a publick War, arising only between those that acknowledge no common Judge, or when2 the Exercise of Justice is interrupted; the Right of Defence has here some Continuance, and is perpetually maintained, by fresh Injuries and Damages received. Besides, in a private War we have only a Regard to our own Defence, but the supreme Powers have not only a Right of Self-Defence, but of3 revenging and punishing Injuries. Whence it is, Edition: current; Page: [417] that they may lawfully prevent an Insult which seems to threaten them, even at some considerable Distance; not directly, (for the Injustice of that we have shewed already) but indirectly, by punishing a Crime that is only begun: Of which we shall have Occasion to treat4 in another Place.
XVII. War only to weaken a neighbouring Power, not lawful. Alberic. Gentil. l. 1. c. 14.XVII. But I can by no Means approve of what some Authors have advanced, that by the Law of Nations it is permitted to take up Arms to reduce the growing1 Power of a Prince or State, which if too much augmented, may possibly injure us. I grant, that in deliberating whether a War ought to be undertaken or not, that Consideration may enter, not as a justifying Reason, but as a Motive of Interest. So that where we have any other just Cause for making War, it may for this Reason too be thought prudently undertaken.Bald. in Leg. 3. De Rerum divis. And this is all that the Authors before cited do in Effect say; but to pretend to have a Right to injure another, merely from a Possibility that he may injure me, is repugnant to all the Justice in the World: For such is the Condition of the present Life, that we can never be in perfect Security. It is not in the Way of Force, but in the Protection of Providence, and in innocent Precautions, that we are to seek for Relief against uncertain Fear.
XVIII. Nor in him who himself gave the just Occasion for a War.XVIII. 1. Neither can I admit another Maxim of those Authors, namely, that even those who have given just Cause to take up Arms against them, may lawfully defend themselves; because, say they, there are few who are content only to proportion their Revenge to the Injuries they receive. But such a Suspicion of what is uncertain, gives no Man a Right to oppose Force to a just Attack, no more than a Criminal can plead a Right of defending himself against the publick Officers of Justice,Alberic. Gentil. l. 1. c. 13. Cast. l. 5. de Justitia. who would Edition: current; Page: [418] apprehend him, by Order of the Magistrate, on a Pretence that his Punishment may be greater than his Crimes deserve.
2. But he who has offended another,1 ought first to offer him such a Satisfaction, as by the Judgment of any honest Man shall be thought sufficient; and if that be refused, he may in Conscience defend himself. Thus Hezekiah being threatned with a War by the King of Assyria,2 Kings xviii. 7, 14, and xix. for not observing the League that his Ancestors had made, acknowledged his Fault, and left it to that King to nominate what Recompence he should make him; which done, and being afterwards invaded with a powerful Army, he then trusted to the Justice of his Cause, defended himself, and, by the Assistance of the most high GOD, became Successful. So Pontius, the Samnite, having made a full Restitution to the Romans, for what had been unjustly taken from them, and delivered up him who was the Author of the War, said,2 Do not imagine that our Embassy has been fruitless: WeEdition: 1738; Page: [142] have thereby expiated the Violation of the Treaty, and prevented whatever we had Reason to apprehend from the Wrath of Heaven. I am persuaded that the Gods, who were pleased that we should be reduced to the Necessity of restoring what was required of us by vertue of our Engagements, were not pleased that the Romans should so haughtily reject the Satisfaction we offered them.—What more, ye Romans, do I owe you? What ought I to do to repair the Infraction of the Alliance, and to appease the Gods, who were the Witnesses and Guarantees of it? To whose Judgment should I submit, in Regard to a Punishment capable of satisfying your Resentment, and expiating the Crime of my Infidelity? There is no Nation, nor private Person, that I refuse on this Head. So when the Thebans3 had offered to the Lacedemonians all that they could in Justice Edition: current; Page: [419] require, and they were yet for pushing Matters further, Aristides said, that the good Cause4 passed then from the Party of the latter to that of the former.
I. The Division of what is our own.I. It follows now, that in treating of those Causes that justify a War, we speak of Injuries already done; and first of those that regard what is properly ours. There are some Things which are ours by vertue of a Right common to all Men; and others which are so by a particular Right. The Right common to all Men respects either certain corporeal Things, or certain Actions (which one requires of another). Corporeal Things are either without a Proprietor, or else belong to some particular Persons. The former are either not susceptible of Property, or else they are. For the better understanding of which, let us examine into the Original1 of Property, which our Lawyers do generally call Dominion or Demesne.
II. The Beginning and Improvement of Property.II. 1. Almighty GOD at the Creation, and again after the Deluge, gave to Mankind in general a Dominion over Things of this inferior World. All Things,Edition: 1738; Page: [143] as1 Justin has it, were at first common, and all the World Edition: current; Page: [421] had, as it were, but one Patrimony. From hence it was, that every Man converted what he would to his own Use, and consumed whatever was to be consumed;Gen. i. 29. — ix. 2, 3. and such a Use of the Right common to all Men did at that Time supply the Place of Property, for no Man could justly take from another, what he had thus first taken to himself; which is well illustrated by that Simile of Cicero,2 Tho' the Theatre is common for any Body that comes, yet the Place that every one sits in is properly his own. And this State of Things must have continued till now, had Men persisted in their primitive Simplicity, or lived together in perfect Friendship. A Confirmation of the first of these is the Account we have of some People of America, who by the3 extraordinary Simplicity of their Manners, have without the least Inconvenience observed the same Method of Living for many Ages; and the latter appears by the Example of the4 Essenes, Edition: current; Page: [422] of the primitive Christians at Jerusalem, and many who now live in religious Societies. That the first Men5 were created in a State of Simplicity, evidently appears from their Nakedness. They were rather ignorant of the Nature of Vice, than versed in the Knowledge of what was virtuous, as Justin6 testifies of the Scythians. The first Men, says Tacitus,7 being free8 from vicious Inclinations, lived in Innocence, without committing any Crime or dishonestEdition: 1738; Page: [144] Action; and therefore there was no Need to keep them to their Duty through the Fear of Punishment. So Macrobius,9 There was so much Simplicity amongst Mankind in the first Ages, that they were ignorant of Vice, and unacquainted with Deceit. This Edition: current; Page: [423] Simplicity is what was by a10 wise Jew called ἀϕθαρσία, Integrity, and by St. Paul,11 ἀπλότης, which he opposes to τῃ̑ πανουργία, Subtilty and Artifice.Prov. iii. 18. The Worship of GOD was their only Care, of which the12 Tree of Life was a Symbol; according to the Explication of the antient Jewish Doctors, confirmed by a Passage in the Apocalypse. And they lived at their Ease on what the13 Earth, untilled, did naturally afford them.— xii. 2.
2. But Men did not long continue in this pure and innocent State of Life, but applied themselves to various Arts, whereof the Symbol was Edition: current; Page: [424] the14 Tree of Knowledge of Good and Evil, that is, of the Knowledge of Things which one may use either well or ill: Which Philo calls Φρόνησιν μέσην,15 a middle Prudence.Eccl. vii. 29. This Solomon had in View when he said, that GOD made Man upright, but that they had sought out many Inventions, ἔῤῥεπον εἰς πανουργίαν, they became subtile,16 as Philo on that Passage expresses himself. So Dion Prusaeensis, in his sixth Oration, ἀλλὰ τὴν πανουργίαν, &c.17 The Cunning of those who came after the first Men, and their Sagacity in inventing Things18 for the Use of Life, was not very advantageous; because Men made use of their Wit and Ingenuity to procure themselves Pleasure, rather than to distinguish themselves by Acts of Valour and Justice. TheEdition: 1738; Page: [145] most antient Arts were those of Agriculture, and Feeding Cattle; they were exercised by the first Brothers, so that there was between them some Sort of Division of Goods. The Diversity of Inclination, immediately produced Jealousy, and afterwards Murder. At Edition: current; Page: [425] last good Men being likewise insensibly corrupted by Intercourse with the bad, a Kind of gigantick Life19 prevailed, that is, they used all Manner of Violence, like those whom the Greeks termed χειροδίκας,20 People that would attempt any Thing. To this savage Sort of Life succeeded after the Deluge,21 an Attachment to Pleasures,22 to which the Use of Wine newly invented did contribute; and from thence proceeded also abominable Lusts.
3. But that which tended most to disunite Men, was a more noble Vice, I mean Ambition,23 whereof the Tower of Babel is a Proof.Gen. x. xi They went afterwards some one Way, and some another, and thus divided the Lands amongst them. But even after this, there remained among Neighbours a Community, not of Cattle but of Pastures;Gen. xiii because the Extent of Grounds was as yet so great in Proportion to the small Number of Men, that it was sufficient to answer the Occasions of many, without their incommoding one another. It was not then permitted, says Virgil,24 to distinguish Possessions, and to set Bounds to the Fields. But the Number of Men, as well as of Cattle, being very much increased, it was thought proper at last to assign a Portion of Lands to each Family; whereas before Edition: current; Page: [426] Gen. xxi they were only divided by Nations. And as the Wells of Water, a Thing very necessary in a dry Country, were insufficient to supply a Multitude,25 every one appropriated to himself those he could seize on. This is what we learn from the Sacred History, and is agreeable to what both Poets and Philosophers have spoken of that early State of Things, when all was common,Mar. liber. c. 5. and of the Divisions that followed. The Testimonies of these Authors I have had Occasion to produce in another Place.
4. From hence we learn, upon what Account Men departed from the antient Community, first of moveable, and then of immoveable Things: Namely, because Men being no longer contented with what the Earth produced of itself26 for their Nourishment; being no longer willing to dwell in Caves, to go naked, or covered only with the Barks of Trees, or the Skins of wild Beasts, wanted to live in a more commodious and more agreeable Manner; to which End Labour and Industry was necessary, which some employed for one Thing, and others for another. And there was no Possibility then of using Things in common; first, by Reason of the Distance of Places where each was settled; and afterwards because of the Defect of Equity and Love, whereby a just Equality would not have been observed, either in their Labour, or in the Consumption of their Fruits and Revenues.
5. Thus also we see what was the Original of Property, which was derived not from a mere internal Act of the Mind, since one could not possibly guess what others designed to appropriate to themselves, that he might abstain from it; and besides, several might have had a Mind to the same Thing, at the same Time; but it resulted from a27 certain Compact and Agreement, either expressly,28Edition: 1738; Page: [146] as by a Division; or else Edition: current; Page: [427] tacitly, as by Seizure. For as soon as living in common was no longer approved of, all Men were supposed, and ought to be supposed to have29 consented, that each should appropriate to himself, by Right of first Possession, what could not have been divided. 'Tis no more, saith Cicero,30 than what Nature will allow of, that each Man should31 acquire the Necessaries of Life rather for himself than for another. To which we may also add that of Quintilian,32 If it be so established, that whatever has fallen to the Share of a Person for his Use, properly belongs to him; surely whatever we possess by a lawful Title, can never, without Injustice, be taken from us? And when the Antients stiled Ceres a Legislator,Macrob. Saturn. 3. 12. and her Mysteries Thesmophoria, they intimated,33 that the Division of Lands produced a new Sort of Right.Edition: current; Page: [428]
III. Some Things can never become a Property, as the Sea, either taken in Whole or in Regard to its principal Parts, and the Reason why.III. 1. This being admitted, we affirm that none can have a Property in the Sea, whether taken in the Whole, or in Respect to its principal Branches; and because some People are willing to allow this, with Regard to private Persons, but not with Regard to States and Nations, we will prove the contrary; first, from a moral Reason; and that is, the1 Cause which obliged Mankind to desist from the Custom of using Things in common, has nothing at all to do in this Affair: For the Sea is of so vast an Extent, that it is sufficient for all the2 Uses that Nations can draw from thence, either as to Water, Fishing, or Navigation. The same might be alledged of the Air too, could we put it to any Use,3 without being Edition: current; Page: [429] posted on the Surface of the Earth. But this is necessary, in Order to enjoy theEdition: 1738; Page: [147] Benefit of it: And therefore Fowling,4 for Instance, is permitted so far only as the Owner of the Land thinks fit.Edition: current; Page: [430]
2. The same may be asserted of Banks of Sand, which are incapable of Culture, and serve only to supply Men with Sand, but can never be exhausted. There is also a natural Reason which forbids, that the Sea, thus considered, should be any Body's Property, because the taking of Possession5 obtains only in Things that are limited. Hence Thucydides called a desert Country ἀόριστον,6 unbounded; and Isocrates, the Lands which the Athenians were possessed of, τὴν ὑϕ' ἡμω̂ν ἀϕορισθε͡σαν,7 limited and bounded by us; but Liquids having no Bounds of their own, (τὸ ὑργὸν ἀόριστον οἰκεɩ̂ω ὅρω, says8 Aristotle) can never be9 possessed, Edition: current; Page: [431] unless they areEdition: 1738; Page: [148] inclosed by something else, as Lakes and Ponds; and also Rivers are subject to Property, because confined within their Banks. But the Sea is not contained in the Earth, as being equal to it, if not10 greater, as the11 Antients believed, and therefore affirmed, that the Earth was contained in it, τὸν ὠκέανον δεσμον̂ ἕνεκα, &c. The Ocean encompasses the Earth, and, as a Band, girds and ties it in, are the Words of Apollonius in Philostratus. And as Sulpitius Apollinaris says in Gellius, What can be said to be without the Ocean, when the Sea does on all Sides environ the Earth? And again, Since then on all Sides it flows round the Body of the Earth, nothing can be said to circumscribe it; but every Land being thus intrenched with the Circuit of its Waters, all Things which are shut up within its Borders are in the midst of it. So M. Acilius, the Consul, in his Harangue to the Soldiers, in Livy, The Ocean, says he, which incircles and confines the Globe. So in Seneca's Advices, the Ocean is stiled the World's Ligament, and the Earth's Rampart. So by Lucan, unda mundum coercens; a Water that environs the World. Nor is there any Room to Edition: current; Page: [432] suppose12 a Division here: For when the Lands began to be divided, the Ocean, at least the major Part of it, was undiscovered; and therefore it cannot be conceived, that People so distant from each other should agree about any such Partition.
3. Wherefore those Things that remained undivided after the first Partition, and were in common to all Mankind, begin now to belong to one, not by vertue of a Division, but by Right of First-Possession, and they are not divided till after they are become a Property.
IV. Lands not inhabited are his who takes Possession of them, unless a whole Nation lay Claim to them by the same Right of Possession. See Bembis, Hist. b. 6.IV. We now proceed to those Things which may become a Property, but are not so yet. Of this Kind are many desart and uncultivated Places, some1 Islands in the Sea, wild Beasts, Birds, and Fish. But here are two Things to be remarked, one is,2 that a Country is taken Possession of, either in the Lump, or by Parts: The former is usually done by a whole People, or by him who is their Sovereign; the latter by the particular Persons of which the People is composed, but yet so that it is more common to assign to every one his Share, than to leave each Portion to the first Occupant. But if, in a Country possessed in the Lump, any Thing remains unassigned to private Persons, it ought not therefore to be accounted vacant; for it still belongs to him who first took Possession of Edition: current; Page: [433] that Country, whether King or People; such as Rivers, Lakes, Ponds, Forests, and uncultivated Mountains.Edition: 1738; Page: [149]
V. Wild Beasts, Fish, and Birds, are his who catches them, unless there be a Law to the contrary. Covarr. c. peccatum. part 2. § 8. Dd. in C. cunctos populos. C. de summ. Trin. Innoc. & panorm in Can. 21. 1. de Sent. excomm. Covarr. ubi supra.V. As to wild Beasts, Fish, and Birds,1 we must observe too, that whoever has Dominion over the Lands or Waters in which they are, may prohibit the taking of these Sorts of Animals, and so hinder any Person from acquiring them by taking them; and the same Law is obligatory on Foreigners. The Reason of which is this, that it is morally necessary for the Government of a People, that those who mingle with them, tho' but for a Time, as one does by entering their Territories, should conform to their Laws, as well as the Natives of the Country. Neither is it any Argument to the contrary, what we often read in the2 Fragments of the Roman Lawyers, that every Man has by the Law of Nature and Nations, a Privilege to catch such Sort of Animals; which is only true, when there is no Civil Law in being to forbid it: So that in this Case, as in many other Things, the Roman Laws left the Liberty of the primitive Times, without Prejudice to the Right which other Nations believed they had to dispose of them otherwise, as we see they have actually done. But when a Civil Law regulates Things otherwise, the Law of Nature itself commands us to observe it. For tho' the Civil Law can enjoin nothing which the Law of Nature forbids, nor forbid any Thing which that enjoins; yet it may restrain natural Liberty, and prohibit what was naturally lawful; and consequently, by its own Authority, may prevent and hinder that Property and Dominion which might otherwise be naturally obtained.
VI. In Case of Necessity Men have a Right of using that which others have a Property in, and from whence this Right arises.VI. 1. Let us now see whether Men may not have a Right to enjoy in common those Things that are already become the Properties of other Persons; which Question will at first seem strange, since the Establishment Edition: current; Page: [434] ment of Property seems to have extinguished all the Right that arose from the State of Community. But it is not so; for we are to consider the Intention of those who first introduced the Property of Goods. There is all the Reason in the World to suppose that they designed to deviate as little as possible from the Rules of natural Equity; and so it is with this Restriction, that the Rights of Proprietors have been established: For if even written Laws ought to be thus explained, as far as possible; much more ought we to put that favourable Construction on Things introduced by a Custom not written, and whose Extent therefore is not determined by the Signification of Terms.
2. From whence it follows, first, that in a Case of1 absolute Necessity, that antient Right of using Things, as if they still remained common, must revive, and be in full Force: For in all Laws of human Institution, and consequently, in that of Property too, such Cases seem to be excepted.
3. Hence it is, that at Sea, when there is a2 Scarcity of Provisions, what each Man has reserved in store, ought to be produced for common Use. So in Cases of Fire, I may demolish3 my Neighbour's House, if I have no other Means of preserving my own; or if my Ship be entangled in4 the Cables of another Ship, or in the Nets of Fishermen, I may cut those Cables and Nets, if there is no other Way of being disengaged. All this is not introduced by the Civil Law; it only explains by such Regulations, the Maxims of natural Equity, and enforces them by its Authority.
Thom. 2. 2. 66. 7. Covarr. cap. peccatum. p. 2. § 1. Soto, l. 5. q. 3. art. 4.4. Even amongst Divines it is a received Opinion, that whoever shall take from another what is absolutely necessary for the Preservation of his own Life, is not from thence to be accounted guilty of Theft: That Sentiment is not founded on what some alledge, that the Proprietor is Edition: current; Page: [435] obliged by the Rules of Charity to give of his Substance to those that want it; but on this, that the Property of Goods isEdition: 1738; Page: [150] supposed to have been established with this favourable Exception, that in such Cases one might enter again upon the Rights of the primitive Community. For had those that made the first Division of common Goods been asked their Opinion in this Matter, they would have answered the same as we now assert.5 Necessity, says Seneca the Father, that great Resource of human Frailty, breaks through the Ties of all Laws; that is, all human Laws, or Laws made after the Manner, and in the Spirit of human Laws. So Cicero,6 Cassius passed over into Syria, another's Province, if Men had regarded written Laws; but these suppressed, into a Province now his own by the Law of Nature. So Curtius7 says, that In a common Calamity, every Man looks to himself, and takes Care of his own Interest.
VII. This holds good, unless where the Necessity is avoidable some other Way.VII. But here some Precautions are to be observed, that the Privileges of Necessity may not be too far extended. And first, that all other possible Means should be first used, by which such a Necessity may be avoided; either, for Instance, by applying to a Magistrate, to see how far he would relieve us, or by entreating the Owner to supply us with what we stand in Need of. Plato1 did not permit one Man to draw out of another's Edition: current; Page: [436] Well, 'till he had digged so far in his own Ground that there was no longer any Hopes or Expectation of Water. And Solon required, that a Man should first dig to the Depth of forty Cubits: Where Plutarch2 adds, ἀπορία λὰρ, &c. He thought it convenient to assist Mens Necessities, but not to indulge their Sloth. And Xenophon, in his Answer to the Sinopenses, ὁποι δ' ἂν ἔλθοντες ἀγορὰν, &c.3 Wherever we come, and have not the Freedom of a Market, whether in a Barbarianora Grecian Country, we take what we have Occasion for, not out of Insolence but Necessity.
VIII. Or unless the Owner's Necessity is equal to ours.VIII. But secondly, this is no Ways to be allowed, if the right Owner be pressed by the like Necessity; for all Things being equal, the1 Possessor has the Advantage. He is no Fool, says Lactantius,2 who tho' it be for the Preservation of his own Life, will not rob the shipwrecked Wretch of his Plank, nor throw down the wounded from his Horse; because he thus abstains from doing an Injury which is a Sin, and to avoid this Sin is Wisdom. But what, said Cicero,3 if a wise Man be ready to perish with Hunger, must not he take away Victuals from another, tho' a perfectly useless and insignificant Fellow? No, by no Means; for the Preservation of Life is not more useful to us, than a Disposition of Mind which hinders us from consulting our own Conveniency at the Expence of another. And we read in Curtius,4 He who will not part with his own, has still a better Cause than he that demands what is another's.
IX. An Obligation to Restitution, where it can be made. Adr. quod lib. 1. art. 2. col. 3. Cov. ubi sup.IX. Thirdly, When my Necessities shall compel me to take any Thing from another Person, I certainly ought to make that Man Restitution as soon as I am able to do it. There are some tho' of a contrary Opinion, Edition: current; Page: [437] and argue thus, that1 whoever makes use of his own Right only, is not obliged to Restitution: Where-Edition: 1738; Page: [151]as the Truth of it is, this Right is not absolute, but limited to this, that Restitution shall be made when that Necessity's over. For it is sufficient that it go so far and not further, to maintain the Laws of natural Equity against the Rigour of the Rights of a Proprietor.
X. An Instance of this Right in War.X. Hence we may infer, how far he that is engaged in a just War may possess himself of any Place in a neutral Country;1 provided that there be not an imaginary, but a certain Danger of the Enemy's getting it into his Hands, and of his being thereby capable of doing irreparable Injuries; and provided too, that he takes nothing but what is necessary for his Security; that is, the bare Custody of the Place, leaving the Jurisdiction and the Revenue to the true Proprietor. And lastly, that this be done with an Intention of resigning even the Custody of the Place itself, as soon as ever the Danger is over. Enna, says Livy,2 is detained either by Injustice or Necessity; because whatsoever does but deviate the least from Necessity, is Injustice.Expedit. Cyri. l. 5. c. 1. The Grecians who were with Xenophon, when they had the most pressing Occasion for Shipping, by Xenophon's Advice, seized such as passed by; but so that the Cargo was preserved untouched for the Owners, and to the Seamen they not only gave Provisions, but paid them the Freight. The first Right therefore that remains of the antient Community, since Property was introduced, is this of Necessity.Edition: current; Page: [438]
XI. Men have a Right to use those Things which are another's Property, if thereby there arises no Detriment to the Proprietor. Sympos. 7.XI. The next is that of1 innocent Profit; when I only seek my own Advantage, without damaging any Body else. Why should we not, says Cicero,2 when we can do it without any Detriment to ourselves, let others share in those Things that may be beneficial to them who receive them, and no Inconvenience to us who give them. Seneca therefore denies that it is any Favour, properly so called, to permit3 a Man to light a Fire by ours. And we read in Plutarch, οὔτε γὰρ τροϕὴν, &c.4 'Tis an impious Thing for those who have eat sufficiently, to throw away the remaining Victuals; or for those who have had Water enough, to stop up or hide the Spring; or for those who themselves have had the Advantage of them, to destroy the Sea or Land Marks; but we ought to leave them for the Use and Service of them, who, after us, shall want them.
XII. From hence is there a Right to running Water.XII. So a River, considered merely as1 such, is the Property of the People through whose Lands it flows, or of him under whose Jurisdiction that People is; and they may, if they please, make Sluices, and appropriate to themselves whatever that River produces. But if this River be considered2 as a running Water, it is so far common, that any Body may drink or draw thereof. What Man would refuse to let another light a Candle by his? Or who would guard the Waters of the Sea, to hinder others from taking Edition: current; Page: [439] of them? says Ovid,3 who also brings in Latona thus speaking to the Lycians,4 Why do you refuse me Water? The Use of Water is common. Where also he calls Water a5 publick Gift, that is, a Gift common to all Mankind; the Word publick being improperly used; in which Sense some Things are said to be publick by the Law6 of Nations. So Virgil asserted7 Water to be cunctis patentem, open to all Men.Edition: 1738; Page: [152]
XIII. The Right of passing Lands and Rivers, explained. Bald. III. Consil. 298.XIII. 1. So likewise a free Passage ought to be granted to Persons where just Occasion shall require, over any Lands and Rivers, or such Parts of the Sea as belong to any Nation: As for Instance, if being expelled their own Country, they want to settle in some uninhabited Land, or if they are going to traffick with some distant People, or to recover, by a just War, what is their own Right and Due. The Reason is the same with that which we have applied above, viz. that the Right of Property may have been established with the Reservation of such a Use,1 as is advantageous Edition: current; Page: [440] to some, without injuring others; and therefore the Authors of that Establishment are to be supposed to have done it on that Foot.
Numb. xx. — xxi.2. A remarkable Instance we have of this in the History of Moses, who being to march through another People's Country, offered first to the Edomite, and then to the Amorite, these Conditions, that for his Part he would pass by the King's Highway, neither would he turn to the Right or the Left, nor enter any Man's private Possessions, and if he should have Occasion for any Thing that was theirs, he would pay them the full Value of it; which being rejected, was a sufficient Reason for that just War2 he made on the Amorites. They refused him, says Saint Augustin,3 a Passage which could not do them any Prejudice; a Passage that, by the most equitable Laws of human Society, ought to have been granted him.
3. Thus too the Greeks4 under Clearchus, πορευόμεθα δὲ, &c. We intend to go home peaceably, if no Body obstruct or molest us; but, by the Assistance of the Gods, we will endeavour to defend ourselves against any who shall injure us.Plut. Apoph. Not much unlike this was Agesilaus's Question, who returning out of Asia, and being come to5 Troas, asked them whether Edition: current; Page: [441] they would permit him to pass as an Enemy or a Friend. So Lysander to the Baeotians,Idem. Apo. & Vit. Lysand. whether they were willing that he should march through them with Pike erected or inclined. And the antient Batavians, in Tacitus, declare to the Inhabitants of Bonne,6 If no one oppose us we will go peaceably along; but if Resistance is made, we will cut out our Passage with our Swords. Cimon, the Athenian General, going to the Assistance of the Lacedemonians, led his Troops through the Territories of the Corinthians, without giving them Notice of it. The Corinthians reproved him on that Account, and told him,7Edition: 1738; Page: [153] that When one wanted to go into a House, it was usual to knock at the Door, and to wait for Admission. Very well, replied he, and did you yourselves knock at the Door of the Cleonians and Megarenses? Did you not break it down, thinking that all ought to lie open to the strongest? The middle Opinion then is the best, that the Liberty of Passing ought first8 to be demanded, and if that be denied, it may be claimed by Force. So Agesilaus, when in his Return from Asia he demanded of the King of Macedon Leave to pass through his Dominions,Plut. in ejus Vit. & Apoph. and that Prince told him he would consider of it, answered briskly, Yes, let him consider of it, and in the mean Time we will pass through.
4. Neither can it be reasonably objected, that there may be Suspicion of Danger from the Passing of a Multitude; for one Man's Right is not diminished9 by another Man's Fear; and much less so, because there are Methods of providing against it; as, for Instance, they may be divided Edition: current; Page: [442] into small Bodies, or be obliged to pass10 unarmed, as the Inhabitants of Cologne11 formerly required of the Germans; which Custom, as Strabo remarks, was antiently observed amongst the12 Aelians; or he that permits another to pass through his Dominions, may have Garrisons or Troops maintained at the Expence of him who demands this Passage; or Hostages may be given,See an Example in Procopius. Persic. I. 2. Plut. in Demet. as Seleucus required of Demetrius, before he would agree to let him stay any Time in his Dominions. Nor is a Fear of provoking that Prince, against whom he that thus passes is engaged in a13 just War, a sufficient Reason for refusing him Passage. Nor is it any more an Excuse, that he may pass some other Way; for this is what every Body may equally alledge, and so this Right of passing14 would be intirely destroyed: But 'tis enough that the Passage be requested, without any Fraud or ill Design, by the nearest and most convenient Way. If indeed he who desires thus to pass, undertakes an unjust War, or if he brings People who are my Enemies along with him,15 I may deny Edition: current; Page: [443] him a Passage; for in this Case I have a Right to meet and oppose him, even in his own Land, and to intercept his March.
5. Neither is this Liberty of Passing due to Persons only, but also to Goods and Merchandize; for no Body has a Right to hinder one Nation16 from trading with another distant Nation; it being for the Interest of Society in general, and noEdition: 1738; Page: [154] Way detrimental to any Person; for if any one be disappointed of a Profit which he only expected but had no Title to, this ought not to be reputed an Injury. To the Testimonies we have elsewhere17 produced to this Purpose, we shall subjoin one out of Philo, πα̂σα δὲ θάλαττα, &c.18 Under a good Government, Merchant Ships sail securely on every Sea, in Order to carry on Trade,19 whereby different Edition: current; Page: [444] Countries, from the natural Desire of Society, mutually communicate what each affords peculiar to itself. For Envy never yet possessed the whole World, nor even any great and entire Part of it. And another out of Plutarch, who speaking of the Sea, delivers himself thus, ἄγριον ὄνγα, &c.20 Human Life would have been wild and savage, there would have been no Intercourse between Men, were it not for this Element, which furnishes them with the Means of supplying one another's Wants; and of forming Acquaintances and Friendships by the Exchanges they make. To which agrees that of Libanius,21 οὐ μὲν τοɩ̂ς, &c. GOD has not bestowed all his Gifts on every Part of the Earth, but has distributed them among different Nations, that Men wanting the Assistance of one another, might maintain and cultivate Society. And to this End has Providence introduced Commerce, that whatsoever is the Produce of any Nation may be equally enjoyed by all. And Euripides,22 in the Person of Theseus, reckons Navigation in the Number of those Things that human Reason has found out for publick Advantage; the Expression is this,
What Nature denies to one Country, is supplied from another, by Means of Navigation. So Florus,23 Take away Commerce, and you break the Bond that ties Mankind together.
XIV. Whether a Duty may be laid on Goods that only pass by.XIV. 1. But it is questioned, whether the Sovereign of the Country1 can impose a Duty on Goods that are transported either by Land, or upon a River, or some Part of the Sea, which may be called an Accessory to his Dominions. Now it is certain, that Equity does not permit the Exacting of Duty for Goods, which has no Manner of Relation to them, as it would be unjust to make Strangers, who only pass through a Country, Edition: current; Page: [445] pay a Poll-Tax which is laid on the Subjects to defray the Charges of the State.
2. But if one is obliged to be at any Charge,2 either expressly, and merely for securing the Transportation of Goods, or amongst other Things for that Use: ThenEdition: 1738; Page: [155] to recompense this, some Duty may be laid on those foreign Commodities; provided it be not higher than the Reason for exacting it requires; for on that depends the Justice3 of Customs and Taxes: Thus Solomon received Tolls for Horses and Linnen,1. Kings x. 28. that passed over the Syrian Isthmus. So Pliny says,4 that Frankincense could be no otherwise transported than by the Gebanites, and therefore a Duty was paid to that King. So, as Strabo5 informs us, the People of Marseilles were greatly enriched by a Canal, which Marius had made from the Rhone to the Sea, πραττόμενοι τοὺς, &c. exacting a Duty from all Ships that went up or down. The same Writer informs us,6 that the Corinthians did by a very antient Custom impose Duties on all Goods that passed over from the Aegean to the Ionian Sea, by Land, to avoid going about the Cape of Malea: The same did the Romans7 require for Edition: current; Page: [446] the Passing of the Rhine, and was likewise given for going over Bridges, as Seneca8 testifies;Chap. de Dom. l. 1. tit. 9. Pereg. de jure Fisci, c. 1. n. 22. Ang. Cons. 199. Zabar. Con. 38. Firm. in Tract. de Gabell. and as to what relates to the passing over Rivers, our Law-Books are all very particular.
3. But it is too frequent, that Impositions of this Nature are excessive, on which Account Strabo9 complains of the Phylarchi, (or Chiefs of divers Nations of Arabia) adding, καλεπὸν γὰρ, &c. With such poor and brutish People as they are, it is difficult to regulate the Imposts on a Footing that is not grievous to the Merchants.
XV. A Right to stay for some Time. Vict. de Indis. Rel. 2. n. 1.XV. 1. Persons also that pass either by Land or Water, may, on Account of their Health, or for any other just Cause, make some Stay in the Country; this being likewise1 an innocent Utility. And therefore Ilioneus, in Virgil,2 when the Trojans were not permitted to refresh themselves on the Coasts of Africa, presumed to invoke the Gods to be Judges of the Injury. And the Complaint that was made by the Megarenses, that the Athenians had refused them Entrance into their Harbours, was thought well grounded by the Grecians, as being, according to Plutarch,Thuc. l. 1. c. 67. Diod. l. 12. c. 39. παρὰ τὰ κοινὰ δίκαια,3 contrary to the Law of Nations: So that the Lacedemonians looked on it as one of the most just Causes of War.
2. And consequently, any little Cottage or Hut may be built upon the Shore, tho' we grant that this Shore belongs to the People of the Place. For what Pomponius4 says, that Leave must be first asked, and an Order had of the Magistrate, before we build any Thing in the Sea, or on the Edition: current; Page: [447] Shore, relates only to such Structures as are permanent and lasting. To which Purpose is that of the Poet,
5 The Fish perceive the Waters of the Sea shrunk, by the huge Piles of Stone that are raised in it.
XVI. Those who are driven out of their own Country have a Right to settle in any other, provided that they submit to the Rules and Government of the Place.XVI. So likewise, a fixed Abode ought not to be refused to Strangers, who being expelled their own Country, seek a Retreat elsewhere:1 Provided they submit to the Laws of the State, and refrain from every Thing that might give Occasion to Sedition: Which just Distinction the divine Poet has judiciously observed, when he introduces Aeneas offering these Conditions,2 King Latinus then become my Father-in-Law, shall still retain the sovereign Authority, both in War and in Peace. And Latinus himself, in Dionysius Halicarnassensis, [[3]] pronounced the Cause of Aeneas to be just, if having no other Habitation he were forced thither. Strabo, from Eratosthenes4 says, it belongs to Barbarians only to drive away Strangers: and the Spartans5 who did so, have not been commended on this Account. So in the Opinion of St. Ambrose,6 those People who refuse to admit Foreigners amongst them, are very much to blame. Thus the Eolians kindly received the Colophonians, the Rhodians,Herod. l. 1. c. 150. Paus. l. 7. c. 11. Diod. 5. c. 58. Herod. 4. c. 145. Oros. l. 7. Phorbas and his Companions; the People of Caria, those of Melos; the Lacedaemonians, the Minyae; and the Cumaeans, some others who came over to them. But when the Minyae, after their Reception, demanded a Share Edition: current; Page: [448] in the Government, what Herodotus says of them is very just, ἐξύβρισαι καὶ ποιήσαι οὐκ' ὅσια,7 They acted insolently, and against all Right and Reason. And Valerius,8 that They basely requited a Favour with an Injury.
XVII. A Right to waste Places, how to be understood.XVII. And if there be any waste or barren Land within our Dominions, that also is to be given to Strangers, at their Request, or may be lawfully possessed by them,1 because whatever remains uncultivated, is not to be esteemed a Property, only so far as concerns Jurisdiction, which always continues the Right of the antient People. And Servius2 remarks, that seven hundred Acres of bad unmanured Land were granted to the Trojans, by the original Latins: So we read in Dion Prusaeensis, οὐδεν ἀδικον̂σιν, &c. that3 They commit no Crime who cultivate and manure the untilled Part of a Country. Thus the Ansibarians formerly cried, that4 As the Gods have Heaven, so the Earth was given to Mankind, and what is possessed by none, belongs to every one. And then looking up to the Sun and Stars as if present, and within hearing, they asked them, whether they could bear to look on those uninhabited Lands, and whether they would not Edition: current; Page: [449] rather pour in the Sea upon those who hindered others to settle on them. But these general Maxims were ill applied by them to the present Case; for those Lands were not waste and desolate, but were employed in the Feeding of their Soldiers Cattle; which was a just Reason that the Romans should refuse them. Neither was it less just what the Romans formerly inquired of the Galli Senones,5 What Right any one had to demand a Country from the lawful Owners, and, in Case of Refusal, to threaten them with a War?Edition: 1738; Page: [157]
XVIII. A Right to such Actions as the Occasions of human Life require.XVIII. Having already spoken of the common Right to Things, the next in Course is the common Right to Actions: And this is to be considered either absolutely, or by Supposition.1 The absolute Right extends2 to certain Acts whereby those Things may be procured, without which we cannot conveniently subsist; I say conveniently, for here is not required a Necessity, like that which justifies the taking of what is another Man's; because we are not discoursing now of what may be done without the Owner's Leave, but the Question is about acquiring in a certain Manner, what one has Occasion for, with the Consent of the lawful Possessors; and that only so as they cannot hinder him, either by any Law, or by Combination: For such an Impediment would, in the Things I mentioned, be contrary to the Nature of human Society; and this is what St. Ambrose3 calls, the cutting off4 from Men the Communication of the Edition: current; Page: [450] Goods of their common Mother, the refusing one the Fruits of the Earth that grow for all; the destroying of Commerce, which is necessary for Life. For we are not talking here of what is superfluous, and what serves only for Pleasure, but of such Things as there is no living without, such as Food, and Cloaths, and Medicines.
XIX. A Right to purchase Necessaries. Covarr. Var. Res, l. 3. c. 14. ibi, tertio. De Offic. l. 3. c. 7.XIX. We affirm therefore, that every Man has a Right of buying these Things at a reasonable Rate, unless the Persons from whom we would purchase them, have themselves an Occasion for them; as in the Time of Famine, the common Sale of Corn1 is prohibited, and yet even in such an Extremity as this, we cannot2 expel those Foreigners we have once admitted, but must, as St. Ambrose shews, be common Sharers in a common Calamity.
XX. But no Right always to sell their own Commodities. Molina, Disp. 105. Aegi. Reg. de Act. supern. Disp. 31. du. 2. n. 52. Caes. 1. Bell. Gall.XX. But one has not the same Right1 to sell his own Commodities as to buy those of another. For every Man is at Liberty to purchase, or not purchase, as he thinks fit. Thus the antient Belgae prohibited the Importation of Wine, and other foreign Goods. So Strabo,2 speaking of the Nabatean Arabians, says, εἰσαγώγιμα δὲ, &c. that Some Commodities may be imported there, and some not.
XXI. 1. I am of Opinion, that in the Right I just now spoke of, is also included, a Liberty to contract Matrimony amongst neighbouring Nations; when, for Instance, a People, consisting only of Men,1 having Edition: current; Page: [451] been banished their own Country, is settled in another.XXI. A Right to Marriage explained. Fortho' Celibacy be not intirely repugnant to human Nature, yet it is contrary to the natural Disposition of most Men, and is suitable only to Minds exalted above the common Level. And therefore Marriage ought not to be denied. Upon this Foundation Romulus2 intreated his Neighbours, that they would not refuse to mix their Blood, and join in Affinity with his People, who were Men as well as they. So Canuleius,3 We desire to contract Marriage with you, a Thing that is usually granted, not only to Neighbours, but evenEdition: 1738; Page: [158] to Foreigners. And St. Augustin testifies,4 that By the Right of War the Victor might justly take away her, who was unjustly denied him in Marriage.
2. But the Civil Laws of some Countries, which prohibit Foreigners the Privilege of Marrying, do it either for this Reason, that when such Laws were made there was no Scarcity of Women in any Nation, or else that they do not here design Marriages in general, but only such as are called lawful, that is, such as produce some particular5 Effects of Civil Right.
XXII. A Right of doing what is permitted indifferently all Strangers to do. Vict. ubi supra Rel. 2. n. 2, 3. Judges xx.XXII. By Supposition there is a common Right to all those Actions which any Nation is supposed to allow to all Strangers indifferently; for then it would be an Injustice to exclude any People:1 For if it be allowed that Foreigners may any where hunt, fish, fowl, gather Pearls, inherit by Will, sell their Goods, and even, where there is no Scarcity of Women, Edition: current; Page: [452] contract Marriages, the same cannot be refused to any particular People, unless by some Crime they have rendered themselves unworthy of it: For which Reason it was, that the Tribe of Benjamin was denied the Privilege of Marrying with the other Tribes.
XXIII. This Right is to be understood of those who are entitled to it by the Law of Nature, and not through Favour and Indulgence. Disp. 105.XXIII. But what we have said of Permissions, is to be understood of such Acts as are allowed, as it were, by Vertue of natural Liberty,1 never taken away by any Law whatever; not of such as are permitted in Favour of certain People,2 in Regard to whom the Law is dispensed with: For 'tis no Injustice to deny a Man a Favour. And thus, I think, we may reconcile3 what Molina observes, with the Principles of Francis Victoria, tho' the former pretended to establish something contrary to them.
XXIV. I remember I have heard it questioned,1 whether one Nation may contract with another, to purchase all the Commodities of a particular Kind,XXIV. Whether a Contract made with a People to oblige them to sell their Commodities to those only with whom they have bargained, and not to any others, be lawful? which are the Produce of that Country only; and I think it may be lawful, provided the Buyer shall be ready to dispose of them to others, at a reasonable Rate; for it signifies nothing to other People, from whom Edition: current; Page: [453] they are supplied with what Nature has Occasion for. But in Matter of mere Profit, one may lawfully prevent another, especially if there be any particular Reason for it, as when a Nation has taken under their Protection the People with whom they make such a Contract, and are therefore obliged to be at an extraordinary Expence. This Sort of Monopoly, practised in the Manner, and with the Intention I observed, is no Ways repugnant to the Law of Nature,2 tho' the Civil Laws, out of Regard to the publick Advantage, do sometimes prohibit it.Edition: 1738; Page: [159]
I. Original Acquisition made by Division or Seizure. Ch. 2. § 2.I. The particular Right we have to a Thing, is either by1 original or derivative Acquisition. Original Acquisition, when Mankind were so few in Number, as to be able to assemble together in one Place, might be made by first Occupancy and by Division, as we observed before. But now it can2 be made only by first Occupancy.
II. Other Means of Acquisition rejected; such as the granting an incorporeal Right.II. Some may say, perhaps, that when the Proprietor of a Ground grants his Neighbour a Right of Servitude, or when a Creditor receives any Edition: current; Page: [455] Thing in Pledge, both the one and the other acquire a Sort of primitive Right. But if the Matter be thoroughly considered, we shall find that this Right is only new in Appearance, and that it is only a Modification of a Right already established; for it was vertually1 included in the Property of the Master of the Ground, and of the Thing pledged.
III. Or a Specification.III. To the Ways of Acquisition, Paulus the Lawyer adds this, which indeed seems very natural, viz.1 when we are the Cause that a Thing exists in Nature. But since nothing can be naturally produced, except from some Matter that did itself exist before; if that be ours, we do but continue our Right of Property, by producing a new Form in it: If it be no Body's, then is our Property in it acquired by the Right of a first Possessor: But if it be some other Person's, it does not become our natural and absolute Property, as will appear2 in another Place.
IV. Possession is double. Jurisdiction and Property. The Distinction explained.IV. 1. Our Business then here, is to treat of taking Possession by Right of Prior Occupancy; which, since those early Times we just now mentioned, is the only natural1 and primitive Manner of Acquisition. Now, Edition: current; Page: [456] as to what belongsEdition: 1738; Page: [160] properly to no Body, there are two Things which one may take Possession of,2 Jurisdiction, and the Right of Property, as it stands distinguished from Jurisdiction. Seneca has made that Distinction,3 Kings, says he, have Power over every Thing in their own Edition: current; Page: [457] Dominions; but yet every Man has his distinct Property. Dion Prusaeensis thus, ἡ χώρα τη̂ς πόλεως· ἀλλ' οὐθὲν, &c.4 The Country belongs to the State; but yet is every Man in it Master of his own Possessions. Jurisdiction is commonly exercised on two Subjects, the one primary, viz. Persons, and that alone is sometimes sufficient, as in an Army of Men, Women, and Children, that are going in quest of some new Plantations; the other secundary, viz. the Place, which is called Territory.
2. But altho' Jurisdiction and Property are usually acquired by one and the same Act,5 yet are they in themselves really distinct; and therefore Property may be transferred, not only to those of the same State, but even to6 Foreigners too, the Jurisdiction remaining as it was before. Siculus, in his Book of the Conditions of Lands, tells us, that amongst the antient Romans,7 when the Lands as-Edition: 1738; Page: [161]signed to a Colony were not Edition: current; Page: [458] sufficient, they took what was wanting from the neighbouring Territories; but that then the Magistrates of those Territories retained the Jurisdiction over what had been taken from them. And Demosthenes,8 in his Oration de Haloneso, calls those Lands that were possessed by the People of the Country, ἐγκτήματα, but those that belonged to Foreigners, κτήματα.
V. The taking of Things moveable may be hindered by a Law.V. We have before observed, that in a Place already possessed, so far as regards Jurisdiction, the Right of seizing upon and possessing Things moveable, may be rendered void by the Civil Law, for this Right1 is indeed permitted by the Law of Nature, but not commanded that it should always be so permitted; nor does human Society require it. But if any one objects, that this seems to be allowed by the Law of Nations, I answer, that altho' in some Part of the World, this is or may have been commonly received, yet it has not the Force of a general Compact amongst Nations, but is only a Permission of the Civil Law of this, or Edition: current; Page: [459] that, or t'other People, which each of them may at any Time abolish if they think fit. And indeed there are many other Things2 of this Nature, which our Lawyers stile the Law of Nations, when they treat of the Division of Things, and of acquiring a Property in them.
VI. Upon what Right the Property of Infants and Madmen is founded.VI. It is also to be observed, that if we have Regard to the Law of Nature alone, Property can only be his who has the Use of Reason.1 But the Law of Nations has so ordained it, for the common Good, that not only Infants but Madmen may both have and keep a Property in Things; Mankind representing them, if I may say so, whilst they are in that State; for human Laws may enjoin many Things that are no where commanded by the Law of Nature, but can enforce nothing that is contrary to it. And therefore this Sort of Property, which, by the unanimous Consent of all civilized Nations, was introduced in Favour of Infants, and other Persons that resemble them, stops intra actum primum, and never passes ad actum secundum, as the Schools term it; that is, they have indeed the Right, but not the Power of exercising it by themselves. For Alienation, and such other Ways of disposing of Goods, do in their Nature suppose an Act of a reasonable Will, which cannot exist in such Persons. To which that of St. Paul may be applied, The Heir, tho' he be Lord of all,Gal. iv. 1. yet during his Minority differs nothing from a Servant. That is, as to the exercise of his Right of Property.
VII. Rivers may be held in Property.VII. Let us now finish what we began to say1 concerning the Sea. Rivers might be held in Property, tho' neither where they rise nor where they Edition: current; Page: [460] discharge themselves be within our Territory, but they join to both, or to the Sea. It isEdition: 1738; Page: [162] sufficient for us, that the larger Part of the Water, that is, the Sides, is shut up in our Banks,2 and that the River, in Respect of our Land, is itself small and insignificant.
VIII. Whether the Sea may not be so too?VIII. By this Instance it seems to appear, that the Property and Dominion of the Sea might belong to him who is in Possession of the Lands on both Sides; tho' it be open above, as a Gulph, or above and below, as a Streight; provided it is not so great a Part of the Sea, that when compared with the Lands on both Sides, it cannot be supposed to be some Part of them. And now what is thus lawful to one King or People, may be also lawful to two or three, if they have a Mind to take Possession of a Sea,1 thus inclosed within their Lands; for 'tis in this Manner that a River, which separates two different Nations, has first been possessed by both and then divided.
IX. 'Twas not allowed formerly in Countries depending on the Roman Empire.IX. 1. But it must be owned, that in all Parts of the Sea that were known in the Time of the Roman Empire, from the first Ages, even down to the Time of the Emperor Justinian, 'twas the Law of Nations, that no People whatever should claim a Property in the Sea; no, tho' it were no more than the Right of Fishing; neither are they to be regarded who think, that when by the Roman Laws the Sea is declared to be1 common to all Men, it should be only understood to be the common Right of the Edition: current; Page: [461] Roman Citizens. For in the first Place, these Terms are in themselves so general, that they can no Ways admit of such a Restriction. For what the Latins meant by Omnium commune, common to all, Theophilus calls, κοινὸν πάντων ἀνθρώπων,2 the common Right of all Mankind. And Ulpian3 says, that the Sea is by Nature open and free for all, and is as common as the Air itself. And Celsus,4 that the Use of the Sea is in common to all the World. Besides, the Lawyers do plainly distinguish those Things that are publick in Regard to one People only, among which Rivers are included, from those that are common in this Manner; for so we read in the Institutes,5 There are some Things which are common Edition: current; Page: [462] 6to all Men by the Law of Nature, and others which are only pub-Edition: 1738; Page: [163]lick: By the Law of Nature these, the Air, running Waters, the Sea, and consequently, the Shores, are common; but all Rivers and Ports are publick. So in Theophilus, Φυσικῷ μὲν οὐν δικαίῳ κοινὰ πάντων ἀνθρώπων, &c. What by a natural Right are common to all Mankind, are these, the Air, Water that's perpetually flowing, and the Sea. And then presently, ποταμὸι δὲ πάντες, &c. But all Rivers and Ports are publick, that is,7 belong to the Roman People.
2. And Neratius, speaking of8 Shores, says, they are not publick in the same Manner as that which is the Patrimony of a People,9 but as that which is originally a Present of Nature, and which as yet has no Proprietor, that is, belongs to no private Person or Nation. Which seems to be contrary to what Celsus writes,10 'Tis my Opinion, that through the whole Extent of the Roman Empire, the Sea-Coasts do properly belong to the Romans; but as for the Use of the Sea, 'tis in common to all Mankind. But these two Opinions may be easily reconciled, if we say that Neratius only meant, as far as the Shore was serviceable to those who sailed or passed by; but that Celsus speaks of the Shore as it is appropriated to some Use,11 as when one builds an Edifice upon it; which Pomponius Edition: current; Page: [463] 12 informs us, could not be done without the Praetor's Leave, no more than one might presume on a Right of Building in the Sea; that is, in that Part of it which is next the Shore, and is, as it were, the Shore itself.
X. But the Law of Nature is not against a Property in a Part of the Sea, which is as it were inclosed in the Land.X. 1. But however true these Things be, it was yet in Consequence1 of an arbitrary Establishment, and not by Vertue of any Prohibition of the Law of Nature, that the Sea was not then possessed, or that it could not be lawfully possessed, in the Sense I spoke of. For tho' a River certainly belongs to the Publick; yet, if it enters by any Place into the Lands of a private Person, that private Person may appropriate to himself the Right of Fishing2 in that Sort of Branch or Gulf of the River. Even in Reference to the Sea itself, Paulus3 says, that if any one has a Right of Property in it, he is admitted to demand an Order of the Praetor for Possession; because it is then a private Affair, and not an Affair that regards the Publick: Since the Question is concerning the Enjoyment of a Right that one possesses on Account of private Acquisition, and not concerning the Enjoyment of a common Right. Where, without Doubt, he is speaking of some small Portion of the Sea4Edition: 1738; Page: [164] let into the Land of some private Person, as Edition: current; Page: [464] L. 9. c. 1. we find it done by5 Lucullus, and some others. So Valerius Maximus records of C. Sergius Orata, that He made himself several private Seas, by enclosing the Waters with Bars or Basons, and making Moles for keeping each Sort of Fish apart. The Emperor Leo afterwards extended this Right, contrary to the Decisions of the antient6 Lawyers, to7 those Parts of the Sea that are before Houses built on the Shore of the Thracian Bosphorus, so that he permitted each Proprietor to inclose with Damms that Space of Sea, and to appropriate it to himself.
2. Now if a certain Space of Sea may be, as it were, an Appurtenance to the Ground of a private Person, so far as it is shut up there, and so inconsiderable that it may be thought a Part of the Ground; and if this Edition: current; Page: [465] be not repugnant to the Law of Nature, why may not a Part of the Sea that is surrounded with the Land, belong to one or more Nations, who are in Possession of the Shores, when that Part of the Sea, compared with the Land, is not larger than a small Slip of the Sea, compared with the Ground of a private Person? Neither is it any Objection to say, that the Sea is not surrounded on all Sides with the Lands of one or more Nations. For notwithstanding that, it may be appropriated, as appears by the Example of a Corner of a River, or the Sea, that is brought up to some Gentleman's Seat.
3. But there are many Things tolerated by the Law of Nature, which the Law of Nations, by8 common Consent, might prohibit and restrain; therefore, wherever this Law of Nations was in Force, and is not repealed by common Consent, the most inconsiderable Part of the Sea; nay, tho' it be almost inclosed by the Shore, can never be the Property of a particular People.
XI. Such a Property may be had, and how long it may endure.XI. But it is here to be noted, that if in any Place this Law of Nations about the Sea should not be received, ortho' it were, should be afterwards abolished, it does not follow that a People, merely because they are in Possession of the Lands, are likewise in Possession of the Sea inclosed in them: Nor is an intentional Act sufficient in this Case;1 but the taking of Possession must, by an Overt Act, be signified and made known. And if afterwards the Possession, thus gained by the Right of prior Occupancy, shall be quitted, then the Sea returns to its original Nature; that is, to the common Use of all Mankind; as Papinianus has decided,2 in Regard Edition: current; Page: [466] to an Edifice built on the Shore, and Fishing in the Turning of a publick River.Edition: 1738; Page: [165]
XII. Such a Property can give no Right of obstructing an inoffensive Passage.XII. It is also certain that he, who is in Possession of any Part of the Sea, cannot lawfully hinder Ships that are unarmed, and give no Room to apprehend Danger, from Sailing there: Since1 such a Passage, even through another's Country, cannot justly be hindered, tho' it be commonly less necessary, and more dangerous.
XIII. That there may be a Jurisdiction over Part of the Sea, and how. Bossius. tit. de Aquis. n. 36. allegans Bal. Caepoll. & al. See Cod. l. 11. tit. 12. De Classicis. Leg. unic.XIII. 1. But it was more easy to take Possession of the Jurisdiction only,1 over some Part of the Sea, without any Right of Property: Nor do I Edition: current; Page: [467]Edition: current; Page: [468]Edition: current; Page: [469] think, that that LawEdition: 1738; Page: [166] of Nations, of which we have spoken, did any Ways oppose or contradict it. The Argives formerly complained of the Athenians, that they suffered the Spartans, who were their Enemies, to pass unmolested through their Seas, looking upon this as a Breach of the Treaty that was betwixt them, in which it was stipulated that2 neither People should permit the Enemies of the other to pass, διὰ τη̂ς ἑαυτω̂ν, through any Part of their Jurisdiction. And by the one Year's Truce, which was made during the Peloponnesian War, a free Passage was granted to the Megarenses3 not only through their own Seas, but those of their Confederates, τῃ̑ θάλασσῃ ὅσα ἂν κατὰ τὴν ἑαυτω̂ν καὶ κατὰ τὴν συμμαχίαν. So Dion Cassius said,4 θάλασσαν, τὴν τω̂ν ῥωμάιων πάσαν, Every Sea that belongs to the Romans. And Themistius speaking of a Roman Emperor, τήν γη̂ν καὶ θάλασσαν ὑπήκοον ἔχων, Having both Land and Sea subject to him. So Oppianus5 to the Emperor,
The Seas roll under thy Scepter. So Dion Prusaeensis, in his second Oration to the People of Tarsus, among the many Privileges that were granted by Augustus to that City, mentions, ἐξουσίαν τον̂ ποταμον̂ τη̂ς θαλάττης τη̂ς κατ' αὐτὴν,6 The Dominion of the River (Cydnus) and that Part of the Sea adjoining to it. So we read in Virgil,7 that The Romans should be absolute Masters of Sea and Land. In Gellius,8 The Rivers that flow into such Seas as are subject to the Roman Empire. And Strabo observes,9 that Edition: current; Page: [470] the People of Marseilles took abundance of Prizes, when in their Engagements at Sea, They conquered τον̂ς ἀμϕισβητον̂ντας τη̂ς θαλασ σσης ἀδίκως, those who unjustly disputed the Dominion of the Sea with them. And that10 Sinope commanded the Sea among the Cyaneae Islands.Edition: 1738; Page: [167]
2. Now the Jurisdiction or Sovereignty over a Part of the Sea is acquired, in my Opinion, as all other Sorts of Jurisdiction; that is, as we said before, in Regard to Persons, and in Regard to Territory. In Regard to Persons, as when11 a Fleet, which is a Sea-Army, is kept in any Part of the Sea: In Regard to Territory, as when those that sail on the Coasts of a Country may be compelled from the Land, for then it is just the same as if they were actually upon the Land.
XIV. A Duty upon some certain Occasions may be imposed on those who go by Sea.XIV. Neither is it contrary to the Law of Nature, or that of Nations, that those who shall take upon them the Burden and Charge of securing and assisting Navigation, either by erecting or maintaining Light-Houses, or by affixing Sea-Marks, to give Notice of Rocks and Sands, should impose a reasonable1 Tax upon those who sail that Way. Such Edition: current; Page: [471] was that which the Romans levied upon the2 Red Sea, to defray the Charge of a Fleet against the Excursions of Pirates; and that Duty3 which the Byzantines demanded in the Euxin Sea; and that which the Athenians4 long before imposed on the same Sea, when in Possession of Chrysopolis, both which are mentioned by Polybius. And that, which Demosthenes, in his Oration against Leptines, shews, the same Athenians required5 in the Hellespont; and which Procopius says,Cap. 25. in his secret History, that the Roman Emperors exacted in his Time.
XV. Of Treaties which forbid some People to pass beyond certain prescribed Bounds.XV. 1. We have some Instances of Treaties, by which one People has engaged to another, not to sail beyond such and such Bounds: So it was formerly agreed between1 the Kings bordering on the Red Sea, and the Edition: current; Page: [472] Egyptians, that the Egyptians should not come into the Red Sea with any Man of War, nor with above one Merchant Ship; so betwixt the Athenians and Persians,2 in Cymon'sEdition: 1738; Page: [168] Time, that no Median Ship of War should sail between the Cyaneae and the Chelidonian Islands, and between the Cyaneae and Phaselis3 after the Battle at Salamin. In the one Year's Truce of the Peloponnesian War4 it was stipulated, that the Lacedemonians should not send to Sea any Ships of War, or Ships of Edition: current; Page: [473] Burden above twenty Tun. And in the first Treaty which the5 Romans made with the Carthaginians, immediately after the Expulsion of their Kings, they agreed, that neither the6 Romans, nor any of their Allies, should sail beyond the Promontory Pulchrum; and that if at any Time they should be driven further, either by a Storm or an Enemy, those who were thus driven should carry nothing with them but only Necessaries, and should be obliged to depart in five Day's Time. And in the second Treaty it was agreed,7 that the Romans should neither exercise Piracy, nor drive a Trade, beyond the Promontorium pulchrum, Massia, and Tarsejus.Appian in Illy. p. 760. Edit. H. Steph. In a Treaty of Peace with the Illyrians, the Romans required, that they should not pass beyond Lissus with more than two Frigates, and those unarmed. In the Peace with Antiochus, that he should not sail on this Side the Promontories of Calycadnus and Sarpedon,8 unless with Edition: current; Page: [474] such Ships as should carry Tribute, Ambassadors, or Hostages of War.Edition: 1738; Page: [169]
2. But all this does not prove that those, who thus limited the Navigation of any other People, had taken Possession of the Sea, or of the Right to sail there. For Nations, as well as private Persons, may9 give up not only that Right which is properly their own; but that also which they have in common with all Mankind, in Favour of him for whose Interest it may be: And when this happens, we may say as Ulpian did,10 in the Case of an Estate sold, on Condition that the Purchaser should not fish for Tunny, to the Prejudice of the Seller: That indeed the Sea cannot be rendered subject to a Service; but yet Honesty requires that one should submit to the Clause of the Contract: And therefore the Purchaser, and those that succeed to his Rights, are personally obliged to observe such a Clause.
XVI. Whether if the Course of a River be changed, it alters the Territory, explained with a Distinction.XVI. 1. It is often disputed amongst neighbouring People, whether the Bounds of the Jurisdiction be not altered as often as the River that runs betwixt them changes its Course; and whether the Addition that the River thus makes does not accrue to them who are on that Side where the Addition is made? Which Controversy must be determined from the Nature and Manner of the Acquisition. Authors who have writ on The Boundaries of Lands, inform us,1 that there are three Sorts of Lands; one Sort is divided and assigned, which2 Florentinus the Lawyer calls Edition: current; Page: [475] limited,3 because it is inclosed by Limits made by the Hands of Man: Another is4 assigned in Gross, or comprised within some certain and determinate Measure, as5 Hundreds, suppose, and Acres: And a third Edition: current; Page: [476] arcifinious,Edition: 1738; Page: [170] called so, as Varro observes,6 because it has (Fines arcendis Hostibus idoneos) Boundaries fit to keep the Enemy out; that is, it has7 natural Limits; such as Rivers and Mountains. And these are what Edition: current; Page: [477] Aggenus Urbicus stiles8 Occupatory, because they are generally such Lands as are occupied or possessed, either as being vacant, or else by the Power of the Sword. In the two first Instances, tho' the River should change its Course, yet is there nothing9 of the Territory changed: And what is added by Alluvion, belongs to the prior Occupant.
See Joan. And. and others, cited by Reinkink, 1. 1. class 5. c. 1.2. But in arcifinious Lands, the River, by gradually altering its Course, does also alter the Borders of the Territory; and whatever the River adds on one Side, shall be under his Jurisdiction who has his Lands there; because both Nations, between which the River runs, are supposed to have taken10 originally the Middle of the River for a natural Boundary of their Jurisdictions. Tacitus said,11 That the Rhine began there to have a fixed Channel, which was proper to serve for a Boundary. And Diodorus Siculus,12 relating the Controversy that was between the Inhabitants of Egesta and Selinus, says, ποταμοὑ τὴν χώραν ὁρίζοντος, The River bounding the Country. And Xenophon13 calls such a River simply, τὸν ὁρίζοντα, The Bounder.
3. The Antients report, that the River Achelous, keeping no constant steddy Course, but one While dividing itself into several Branches, another While turning and winding about, (which gave Rise to the fabulous Story of its being changed in-Edition: 1738; Page: [171]to a Bull and a Serpent) was Edition: current; Page: [478] Strabo. l. 10. p. 703. Ed. Amst. (458, Ed. Paris.) the Occasion of frequent Wars between the Etolians and Acarnanians about the adjacent Land, 'till Hercules confined it within Banks; and for the important Service, obtained in Marriage the Daughter of Oeneus, King of the Aetolians.
XVII. What Judgments must we make if the Channel be quite altered?XVII. 1. But this will only take Place where the River has not changed its Channel; for a River that separates two Jurisdictions, is not to be considered barely as Water, but as Water confined in such and such Banks, and running in such and such a Channel. Therefore the Additions, Diminutions, and other Changes of the Parts, which allow the Whole1 to subsist in its antient Form, do not hinder the River from being considered as the same. But if the Form of the Whole be changed at the same Time, 'tis then a quite different Thing: And consequently, as when any River is dammed up above,L. Proponebatur, D. de judiciis. and a Passage made to convey the Waters another Way, it is no more the same, but a new River. So in Case2 a River should force its Way through some unusual Passage, and entirely forsake its former Channel, it is no more the River that it was before, but a new one. So too, if a River should be exhausted or dried up, as the Middle of the neighbouring Channel would remain the common Boundary of the two Jurisdictions; because we are to presume,See Digest. l. 43 tit. 20. De Aqua quotid. & astiva. I. 3. §2. that the Intention of the People was to take the River for the natural Limit of their States, and that if the River should at any Time cease, each might possess what they had before; the same Thing is to be said if the Channel of a River should be altered.
2. But in any Doubt of the Bounds of a State, those Lands that reach to some River are to be reckoned arcifinious, because nothing is so proper to distinguish Jurisdictions, as3 that which is of such a Nature that it is not easily passed over. It rarely happens that such Sort of Lands are limited, or comprised in a certain Measure; and when it falls out so, it is not Edition: current; Page: [479] so much in Consequence of the original Acquisition, as by Vertue of another's Concession.
XVIII. A River belongs sometimes wholly to one Territory.XVIII. But tho', as I said, in Case of any Doubt, the Jurisdictions on each Side reach to the Middle of the River that runs betwixt them, yet it may be, and in some Places it has actually happened, that the River wholly belongs to one Party; either because the other Nation had not got Possession of the other Bank, 'till later, and when their Neighbours were1 already in Possession of the whole River, or else because Matters were so stipulated by some Treaty.
XIX. Things that are quitted, are the Right of the next Possessor, unless the State has acquired a Right to a general Property.XIX. 1. Nor is it undeserving our Observation, that the Acquisition of such Things as have had an Owner once,1 but are now without one, either because they are abandoned, or because the Owners themselves2 are dead and gone, is to be judged an original Acquisition: For in such a Case they return to the State in which all Things were at first.
2. But it is likewise to be observed, that the original Acquisition of a Country is sometimes made by a People, or a Prince, in such a Manner, that not only the Jurisdiction and Sovereignty, which comprehends that eminent Right we have elsewhere3 spoken of, but also the full and compleat Property is at first, in general, vested in that People or Prince; and that afterwards a particular Distribution is made amongst private Persons, but so that their Property should still depend upon that prior Edition: current; Page: [480] Property; if not, as4 the Right of a Vassal upon the Right of hisEdition: 1738; Page: [172] Lord; or the Right of a5 Tenant, upon the Right of him who owns the Farm; however, by some slighter Sort of Dependence, as there are many Kinds of6 Right to a Thing, among which is the Right of him who upon a certain Condition expects a7 Feoffment of Trust. Thus Seneca,8 'Tis no Argument at all, that because you may not dispose of, consume, spoil, or mend, 'tis therefore not yours; for that too is yours, which is Edition: current; Page: [481] conditionally such. So Dion Prusaeensis,9 μυρίους γὰρ εὑρήσετε τρόπους, &c. There are many Ways, and those very different, by which Things are said to belong to one; so that sometimes he to whom they belong can neither sell nor dispose of them as he pleases. And in Strabo10 we meet with, κύριος ἡ̂ν πλὴν τον̂ πιπράσκειν, He was Master of it, excepting the Power of selling it. Now an Example of what we have been speaking of, Tacitus gives us in the Germans, They take Possession in common of as much Land as they are able to cultivate all together, and afterwards they divide it according to every Man's Condition.
3. When the Property of private Persons depends on the general Property of the State, in the Manner I have just mentioned, that which has no particular Owner does not therefore belong to the first Occupant, but returns to11 the whole So-Edition: 1738; Page: [173]ciety or superior Master. And even Edition: current; Page: [482] the Civil Law, without this Reason, may establish such a Right; as we12 have already hinted.
I. Why Usucaption or Prescription, properly so called, has nothing to do among different People or their Sovereigns. Controv. Illus. l. 2. c. 51. n. 28.I. A Great Difficulty1 arises here, concerning the Right of Prescription. For whereas this Right receives its Being from the Civil Law, (Time, as such, having no Power to produce any Thing, for nothing is done by Time, tho' every Thing be done in Time) in Vasquez's Opinion, it cannot take Place between two free Nations, or two Kings, or between a free People and a King; no nor between a King and a private Person who is no Subject of his, nor between2 two Subjects of different Princes or Edition: current; Page: [484] States; which seems true3 enough, unless the4Edition: 1738; Page: [174] Thing or the Act depends on the Laws of the Country. But if we should admit this to be true, a very great Inconvenience would follow; the Disputes about Kingdoms, and their Boundaries, would never be at an End: Which, as it directly tends to create Uneasiness, Troubles, and Wars amongst Men, so is it contrary to the common5 Sense of Nations.Edition: current; Page: [485]
II. But even among these long Possession is frequently urg'd as a Right. Judges xi. 14, &c.II. For in the Holy Scriptures, when the King of the Ammonites demanded of Jepthah, the Lands that lay between Arnon and Jabbok, and from the Desarts of Arabia, as far as the River Jordan, he pleaded three hundred Years Possession; and asked why he and his Ancestors had so long neglected to lay claim to them. And we find in Isocrates, that the Laconians laid it down as1 an avowed Maxim, established by the Consent of2 all Nations, that publick, as well as private Possessions, are, in a long Course of Years, so secured and confirmed that they can never be recovered; and they make Use of the same Reason to destroy the Pretensions of those who required Messena of them. The Greek Words are, Τὰς κτήσεις καὶ τὰς ἰδιὰς καὶ τάς κοινὰς, ἠν ἐπιγένται πολὺς χρόνος, κυρίας καὶ πατρώας, ἅπαντες εἲναι νομίζουσι. And the same Isocrates, writing to Philip, Κάτοχον καὶ βέβαιον τὴν κτη̂σιν πεποιηκότος τον̂ χρόνου. Time hath made the Possession firm and lasting. And it was this Right that induced Philip the second to declare to Tit. Quintius, that3 he would evacuate those Cities which he had taken, but that he would by no Means part with the just and hereditary Possession of those which were derived down to him from his Ancestors. Sulpitius, speaking against Antiochus,4 maintains that it was unjust in him to pretend, that because the Greeks in Asia had been formerly under the Dominion of his Ancestors, he had a Right to reduce them to his Obedience, so many Ages after the Recovery of their Liberty.Tacitus5 considersasan Impertinence, Edition: current; Page: [486] the reviving of6 old Pretensions. And Diodo-Edition: 1738; Page: [175] rus,7 Μυθικὰς καὶ παλαιὰς ἀποδείξεις, Tales and idle Stories. Thus Cicero8 in his second Book of Offices, Is there any Reason why Lands that a Man has been possessed of for many Years, or even many Ages, should be taken from him?
III. The Reason inquired into, from the Conjectures of a Man's Will and Intention, which Conjectures are derived not from Words only.III. What shall we say then? The Effects of Right, which depend on the Will, cannot however take Place, in Consequence of a mere Act of the Mind; but that internal Act must be manifested by some external Sign. For,1 since the Thoughts of Man cannot be discovered but by outward Signs, it would be absurd and repugnant to our Nature, to attribute any Effect of Right to the bare Act of the Mind, and therefore it is, that2 mere inward Motions do not come under the Cognizance of human Laws. Nor do Signs indeed give us a demonstrative, but only a probable Certainty of the Thoughts and Motions of the Mind; for Men may speak otherwise than they design or think, and by their Actions may give to understand a different Thing from what they have in their Thoughts. However, as the Constitution of human Society does not permit the Acts Edition: current; Page: [487] of the Mind, sufficiently manifested, to remain without Effect, whatever one declares by sufficient Signs, passes for the real Thought and true Intention of him that uses those Signs.3 If his Words or Actions are contrary to his Intentions, so much the worse for him. What I have said is liable to no Difficulty, when the Question is in reference to Words.
IV. But also from an Overt-Act [[sic]] or Deeds done.IV. 1. As to Actions. A Man is supposed to abandon a Thing, when, for Instance, he throws it away; unless it be in such Circumstances, that we ought to presume he does it only through the Necessity of the Time,1 and with Intention to recover it if he can. Thus2 when a Note under Hand is returned, the Debt or Obligation is supposed to be discharged. A Right of Inheritance3 may be renounced, says Paulus, not only by Words but by Actions, or any other Indication of the Will. Thus if a Man, who knows very well that a Thing belongs to him, should treat with the Person who is in Possession of it, as if he was the true and lawful Proprietor, he may reasonably be supposed to resign his Right; and why a Right cannot be made over the same Way, between Kings and free People, no Reason can be assigned.Edition: current; Page: [488]
2. It is much the same, as if a Magistrate should allow or command one under his Government,4 to do that which the Law forbids; he is presumed then to release him from the Obligation of that Law. In all these Cases, the Presump-Edition: 1738; Page: [176]tion is not founded on the Civil Law, but on the Law of Nature, according to which every one has the Liberty of parting with his own, and on a natural Conjecture, whereby every one is supposed to intend that which he has sufficiently given to understand. We may very well admit in this Sense what Ulpian the Lawyer has asserted,5 that Acceptilation (or a verbal Discharge of a Debt) is founded on the Law of Nations.
V. And from an Inaction or a Forbearance of Acting.V. 1. Now, morally speaking, under the general Name of Action are likewise comprehended Omissions, considered with the requisite Circumstances. Thus a Man by his Silence, in Case he is upon the Spot, and knows what is doing, is supposed to give his Consent to what is then done; which the Mosaick Law does also allow, Numb. xxx. 4, 5, and 11, 12; unless it appears that he was awed into Silence, or any other Way hindered from Speaking.The Jewish Lawyers call this çway. On this Foundation it is that one reckons for lost, what the Person to whom it belongs has no Hopes of recovering. Ulpian1 says, that Hogs carried off by a Wolf, or Things lost by Shipwreck, cease to be ours, not immediately, but when there is no Way of recovering them;2 that is, when there is no Room to believe that the Edition: current; Page: [489] Proprietor considers them as his own; when there is not the least Sign that he intends to preserve any Pretension to them. For if he should send People to look for them, and promise a Reward to the Finder, the Case would be quite altered. Thus again, should a Man knowingly suffer another to enjoy what is his for a considerable Time, without demanding it, it might be concluded from his Forbearance, that he designed to part with it altogether, and looked upon it no longer as his Property; unless there was any other Reason, that manifestly hindered him from making Opposition. In this Sense Ulpian said, that3 a House is looked upon to be abandoned, on Account of the long Silence of the Proprietor.4 You are in the Wrong, (said the Emperor Antoninus Pius, in his Rescript) to demand the Interest of your Money for the Time past. The long Space of Time which you have suffered to elapse without demanding it, shews that you have excused your Debtor for it, because it was to do him a Kindness, that you did not think fit to demand it of him.
Thomas I. 2. Qu. 97. Art. 3.2. There is something very like this in the Establishment of a Custom. For this too (setting aside the Civil Law, which regulates the Time and Manner of it) may5 be introduced by the Subjects, if the Sovereign Edition: current; Page: [490] tolerates and connives at it.Edition: 1738; Page: [177] It is true, the Time required to give this Custom any Effect of Right has in general no fixed Limits; but it ought to be sufficiently long, in Order to give Room to suppose the Consent of the Prince.
Suarez. l. 7. de Legib. c. 15.3. But before we can reasonably presume from a Man's Silence, that he has relinquished his Right, two Things are necessary. One is, that he should know that another possesses what belongs to him: And the other, that he should be voluntarily silent, tho' he has full Liberty to speak. For when one6 forbears to act through mere Ignorance, it can have no Effect: Edition: current; Page: [491] And if there appears any other Reason that hindered him from acting, the Conjecture drawn from Silence can have no Place.
VI. How Time joined with Non-Possession, and with Silence, conduces to the Conjecture that the Right to the Thing is quitted.VI. Amongst several other Conjectures, that serve to verify the two Conditions just mentioned, the Length of Time is of great Weight to shew that the Silence of a Proprietor is accompanied with both.1 For it is hardly conceivable, that the Knowledge of his Right should for so many Years escape him, since Time affords so many Opportunities of knowing it. Tho' indeed it does not require2 so much Time to found this Conjecture when the Parties are present, as when they are at a Distance, even tho' the Civil Law were silent in the Matter; neither can it be supposed but that the Fear which might once be impressed, will wear off in Time, which offers him so many Opportunities of providing for his Security, either by his own Care, or by the Assistance of his Friends; he may even fly out of the Reach of the Person feared; so that, at least, he may protest his Right, or, which is better, appeal to proper Judges or Arbitrators.
VII. That a Time exceeding the Memory of Man is commonly sufficient for such a Conjecture, and what such a Time is. Menochius, 1 Cons. 90. Eustath. in Iliad. l. 1. v. 250.VII. But because1 a Space of Time, which exceeds the Memory of Man, is in a moral Sense taken for Infinite, therefore a Silence of so long a Edition: current; Page: [492] Continuance will ever be sufficient for a Conjecture, unless very good Reasons be alledged to the contrary, that the Thing in Dispute is really quitted. 'Tis indeed observed by the most eminent Professors of the Law, that Time Immemorial is not2 the sameEdition: 1738; Page: [178] exactly with an hundred Years, tho' they do not often very much differ; because3 the Life of Man is commonly computed at an hundred; and this Term of Years is what does usually make up three Ages or4 Generations of Men; which three Generations, or Time immemorial, the Romans pleaded against Antiochus,5 when they shewed him, that he demanded of them Cities, to which neither he, nor his Father, nor his Grandfather, had ever pretended to have a Right.
VIII. An Answer to the Objection, that no one is to be presumed willing to abandon or throw away what he has got.VIII. 1. It may be objected, that since all Men love themselves, and are fond of what is their own, 'tis not to be supposed that they will be inclined Edition: current; Page: [493] to throw it away; wherefore a mere Forbearance of Acting, tho' for ever so long a Time, cannot be a sufficient Ground for such a Conjecture. But on the other Hand, since we ought to judge charitably of all Mankind,1 we must not imagine that one Man, for the Sake of a perishable Good, will suffer another to live, as it were, under the Guilt of a perpetual Sin, which many Times he cannot avoid without such a Dereliction.
2. As for Crowns, tho' they are commonly so highly valued, yet must we know too, that2 they are great and weighty Burdens, and which, if not worn well, expose the Prince to the Wrath and Resentment of GOD; and, as it would be great Inhumanity to waste a Minor's Estate in contending for the Guardianship; or, to use Plato's Simile,3 if Mariners, at the Hazard of the Ship, should dispute the Management of the Helm; so those Princes are far from deserving Commendation, who, to the great Damage of the State, and frequently with the Blood of an innocent People, ambitiously strive for the Government. The Antients mightily applauded the Saying of Antiochus, who returned the Romans Thanks, Edition: current; Page: [494] 4 for easing him of too5 large and troublesome a Province, by contracting his Do-Edition: 1738; Page: [179]minions. Among several bright Passages in Lucan,6 this is none of the least beautiful.
Must such a Number of new and unheard of Crimes be committed, to decide which of these two (Caesar or Pompey) shall be Master in Rome? One would hardly purchase at that Price the good Fortune of having neither of them for Master.
3. Besides, it is for the Interest of human Society, that the Titles to Crowns should be one Time or other settled, and put out of all Dispute; wherefore such Conjectures as conduce to that End are to be reckoned Edition: current; Page: [495] favourable. For if Aratus Sicyonius7 thought it hard for private People to lose those Possessions which they had enjoyed for fifty Years, how much more reasonable is that of8 Augustus, who pronounced him a good Man, and a worthy Citizen, who is not for making any Alteration in the present State of publick Affairs; and who, as Alcibiades [[9]] says in Thucydides, ὅπερ ἐδέξατο σχη̂μα τη̂ς πολιτείας, τον̂το συνδιασώζει, preserves the same Form of Government as was delivered down to him; which Isocrates terms, τὴν παρον̂σαν πολιτείαν διαϕυλάττειν, maintaining the present Government: And Cicero too, in his Speech to the Romans against Rullus, says, that 'Tis the Part of every one who has a Value for the Peace and Tranquillity of his Country, always to defend the State of the Commonwealth, whatever it be; and Livy, that Every good Man is pleased with the present State of the Publick.Edition: current; Page: [496]
Aug. de Clavasio, in Summa. verb. Inventa. Crantz Saxon l. 11. n. 10, 13.4. Tho' what we have urged were not sufficient to answer the Objection, of every ones being desirous of preserving what he has got; yet a stronger Objection might be opposed to it, that it is by no Means probable, that a Man should intend the obtaining of his Right, and yet in so long a Time give no proper Indication of such his Intention.Edition: 1738; Page: [180]
IX. It appears, that without any Conjecture at all an Immemorial Possession transfers and constitutes a Property.IX. And perhaps it may, with a great Deal of Probability, be said, that this is an Affair not founded on bare Presumption only, but on an1 arbitrary Law of Nations,2 whereby it was established, that Possession, Time out of Mind, without Interruption or Appeal, should absolutely transfer a Property; for 'tis reasonable to suppose, that Men might agree to that, which would so much contribute to the common Peace of Mankind. It must be observed that I say, A Possession,3 without Interruption; that is, as Sulpitius in Livy speaks,4 has been held by one and the same perpetual Tenour of Right, without any Intermission whatever. Or, as the same Author in another Place calls it, A continued Possession, that was never called in Question. For a Possession by Intervals signifies nothing; and the Numidians justly alledged that Exception in Dispute which they had about some Lands with the Carthaginians, to whom they replied,5 That according to Times and Occasions, sometimes they, and sometimes the Kings of Numidia, appropriated to themselves those Lands; and that they had always been in the Hands of the stronger.Edition: current; Page: [497]
X. Whether Persons not yet born, may not, in this Manner, be deprived of their Rights.X. 1. But here another very intricate Question arises,1 Whether those who are not yet born, can by such a tacit Dereliction or Forsaking, lose their Right? If we say that they cannot, what has been already advanced will not much contribute to the quiet Enjoyment of Crowns and private Possessions, since most Kingdoms and private Estates are of such a Nature, that they ought to pass to Posterity. And if we affirm that they can, it looks a little strange, how Silence should prejudice those who were not capable of Speaking, because not yet in Being; or how what one does should be a Detriment and Disadvantage to another.
2. In Order to clear up this Difficulty, it must be observed, that he who is not yet born, can have no Right, as that Substance which is not yet in Being has no Accidents. Wherefore if the People (from whose Will the Right of Government is derived) should think fit to alter that Will, they cannot be conceived to injure those that are unborn, because they have not as yet obtained any Right. Now as this Change of Mind may be openly and expressly declared by the People, so may they also be supposed, in certain Cases,2 to have tacitly changed it. If then it be granted, that the Will of the People is altered, whilst those who might be expected to come here after have no Right;3 and the Parents too, from whom those may descend, who might have had a Right in their Time to the Succession, have renounced that Right; I see no Reason why another may not take Possession of it, as of a Thing relinquished and abandoned.
3. What we are talking of is from the Law of Nature; for in the Civil Law I am sensible, that as other Suppositions, so this also may be introduced Edition: current; Page: [498] and fancied, that The Law personates4 those who are not yet in Being; and by this Means preEdition: 1738; Page: [181]vents any Seizure or Possession that may be made to their Prejudice: But this must not rashly be supposed to be the Intent of the Laws, because tho' it would be for the Interest of private Persons, yet it would be of vast Disadvantage to the5 Publick. Therefore it is generally thought, that the Fiefs which are devolved,C. Possessor. p. 3. § 3. Spec. tit. de feud. § Quoniam. ver. 3. quaeritur. See Chass. de Cons. Burg. Des maines mortes § 6. ver. par An & par Jour. Cravet. de Antiq. temp. p. 4. § Materia, n. 90. not by Succession to the Rights of the last Possessor,6 but by Vertue of the primitive Investiture, may7 be acquired after a sufficient Space of Time. And this that able Lawyer Covarruvias, supported by substantial Reasons, Edition: current; Page: [499] extends to the Rights of8 Majorasgo, and to Things subject to a9 Feoffment of Trust.
4. I cannot indeed see any Reason why the Civil Law may not introduce a Right which cannot be alienated by any one valid Act; and yet that Right, to avoid the Uncertainty of Possessions, may, if not challenged within a stated Time, be lost; but so, that those who shall here after be, and should have been entitled to it, may have a personal Action against them who lost it by their Neglect, or against their Heirs.
XI. That even the Right of Sovereign Power may be obtained either by a King or by a People by long Possession.XI. It is plain from what has been said, that one King may acquire a Right of Sovereignty, to the Prejudice of another King; and one free People to the Prejudice of another free People, as by an express Consent, so also by a Dereliction, and that taking of Possession which follows it, or which receives some new Force and Virtue from it. For tho' it be an allowed Maxim, that What is originally1 invalid, can never be made valid by a retroactive Effect; yet does it admit of this Exception, unless some new Cause, capable of itself to create a Right, shall intervene. Thus the2 Edition: current; Page: [500] true and undoubted Sovereign of any People may lose the Sovereignty, and become dependent on the People; and on the contrary, he who was only chief of the State,3 may become King, or true Sovereign; and that supreme Power which was lodged before entirely either in the People or the Prince, may be divided between them.Edition: 1738; Page: [182]
XII. Whether the Civil Laws of Usucaption and Prescription oblige him who has the Sovereign Power. This explained, with some Distinctions. Bart. in L. Hostes D. De Capt. & in l. 1. De aqua pluvia arcend. Jason. Con. 70. l. 3. Aymon. de antiq. p. 4. versic. Materia ista n. 62. Ant. Corset. de exc. reg. q. 104. Balb. de Praescrip. 2. p. 5. pr. q. 2. Castal. de Imp. q. 53. Covar. in C. peccatum, De reg. Jur. in 6. p. 2. § 9. in fin.XII. 1. It is also worth our While to enquire, whether those Laws1 which relate to Usucaption or Prescription, and are enacted by him who is invested with the sovereign Power, can affect the Right of Sovereignty itself, or its essential Parts, which we have pointed out in another Place. Those Lawyers who decide all Controversies about the supreme Power by the Civil Law in Use among the Romans, do generally hold it in the Affirmative. But we2 are of a different Opinion; for in Order to make a Man subject to Laws, a Power, and a Will at least a tacit one, are required in the Legislator. No Man can lay himself under the Obligation of a Law; that is, to which he may be subject, as coming from a Superior. Upon which Account it is, that Legislators have a Right to change their own Laws. A Man indeed may be subject to his own Laws, indirectly, Edition: current; Page: [501] and by Reflexion, as he is a Member of3 civil Society; natural Equity requiring that the Parts should conform to the Interests of the Whole: Thus Saul did in the Beginning of his Reign, as appears from the Sacred History, 1 Sam. xiv. 40. But this Distinction has nothing to do here, because we look upon the Legislator here, not as a Part, but as including the Power of the Whole; for we are speaking of the supreme Power, considered as such. Nor can we presume that there was any Concurrence of the Will; because it is not to be supposed, that Legislators are willing to include themselves, unless where both the Matter4 and the Reason of the Law are universal, as in the Determination of the Price of Things. But Sovereignty is not of the same Rank with other Things; it is of a much superior Excellence. Nor did I ever meet with any Civil Law, that treated of Prescription, which comprehended, or could with any Shew of Probability, be thought to design the Comprehension of the supreme Power.
2. Whence it follows, not only that the Term of Prescription regulated by the Law, is not sufficient to acquire the supreme Power, or any essential Part of it, if the above-mentioned natural Conjectures are wanting: But also that there is no Occasion for so long a Space of Time, provided that these Conjectures can be enough confirmed in less: Wherefore too, the Civil Law that does not authorise the Acquisitions made by a Space of Time, does no Ways regard the supreme Power. It is true indeed, the People, when they first invest a Person with this Power, may, if they please, declare the Manner and Time in which the Right of Sovereignty, if so long neglected, should be forfeited; which Determination of the People ought not to be violated, even by the Prince, tho' invested with the supreme Authority; because it does not respect the Edition: current; Page: [502] Sovereignty itself, but only the Manner of holding it: Which Distinction we have spoken of somewhere else.
XIII. These Rights of Sovereignty that may be separated from it, or be communicated to others, are gained and left by Usucaption or Prescription. Covar. C. Possessor. p. 2 § 21 n. 12, 13.XIII. But as for those Things that are neither essential to the supreme Power, nor natural Properties of it,1 but may be naturally separated from Edition: current; Page: [503] it, or at least beEdition: 1738; Page: [183] communicated to others, they entirely depend on the Civil Laws of every People that regulate Usucaption and Prescription. So we find some Subjects, who have obtained by Prescription, the Right of judging without Appeal; but yet in such a Manner, that something like an Appeal may be made either by Petition, or some other Method. For to judge absolutely without Appeal, is a Circumstance inconsistent with the Condition of a Subject, and therefore can belong only to the Sovereignty, or some one of its Parts: Nor can it be gained but by Vertue of a natural Right, to which Sovereignty is subject.
XIV. The Opinion that Subjects may at any Time assert their Liberty, refuted. As Vasquez, Controv. illust. l. 11. c. 82. n. 3.XIV. 1. From hence it appears how far that, which some advance, may be admitted, "It is always allowable for Subjects to recover, if they can, their Liberty, that Liberty which is proper for a People; because the Government that was got by Force, may by Force be dissolved. And if it was the Result of a free Act of the Will, Men may repent of it, and alter that Will." But tho' a Sovereignty may have been originally acquired by Force; yet it may become lawful by a tacit Will, which confirms the Enjoyment of it to the Possessor. And the Will of the People may be such, either at the Time when they established the Sovereignty, or afterwards, that they may confer a Right which1 does not for the future depend on their Will. King Agrippa in Josephus, in his Speech to the Jews, who for their preposterous Desire of recovering their Liberty, were stiled Zealots, tells them,2 It is now too late to aim at Liberty. It was formerly your Duty to have fought for the Defence of it. It is hard to expose one's Self to Slavery, Edition: current; Page: [504] and Resistance in Order to prevent it is lawful. But he who, once vanquished, revolts, is not to be called a Lover of Liberty, but an insolent rebellious Slave. And Josephus himself, to the same Folks,3 It is glorious to engage and draw in the Cause of Liberty, but this should have been done long ago. For when People have been once over-powered, and have for a great While submitted, to shake off the Yoke then, is to actEdition: 1738; Page: [184] like Madmen and Desperadoes, and not like Lovers of Liberty. And 'twas this very Answer that Cyrus4 made formerly to an Armenian King, who cloaked his Rebellion with a pretended Desire of regaining his ancient Freedom.
2. However, I see no Reason to doubt, but that a long Forbearance in the Prince, such as we have above described, will justify Subjects resuming the publick Liberty, upon a Presumption that he has quitted the Crown.
XV. Those Rights which consist in a bare Power of doing such or such a Thing, are never lost by Time. This explained. See Parut. hist. Venet. l. 7.XV. As for those Rights,1 which are not daily exercised, but only once, and when it is convenient, as the Right of recovering a2 Pledge by paying; Edition: current; Page: [505]Edition: current; Page: [506] as alsoEdition: 1738; Page: [185] those3 Rights which consist in the exercise of our Liberty, so that what one does is not directly contrary to, but comprehended in it, as the Part in its Whole: Such as is the Case of a Person, who, for an hundred Years, has entered into Society with one Neighbour only, tho' he might have done the like with other Persons, had he had a Mind to it; those Rights, I say, are not lost, 'till being prohibited to exercise them, Edition: current; Page: [507] or obliged to forego them, we give sufficient Intimation of our willingly submitting to such Terms: Which being agreeable both to the4 Civil Law, and to natural Reason, ought to take Place amongst Men of the highest Quality and Fortune.
I. The Right of Parents over Children.I. We have a Right, not only over Things, but over Persons too, and this Right is1 originally derived from Generation, from Consent, from some Crime. By Generation,2 Parents, both Father and Mother, acquire a Right over their Children; but if their Commands should3 run counter, Edition: current; Page: [509] the Father's Authority is to be preferred in Regard to the Dignity of the Sex.Edition: 1738; Page: [186]
II. A Distinction of Seasons in Children; where too of Children's Property in Things.II. 1. And here in Children, three Seasons are to be carefully observed and distinguished. The first Season, that τον̂ βουλευτικον̂ ἀτελον̂ς, of1 imperfect Judgment, as Aristotle speaks, when they have no προαίρεσιν2 Discretion, as he elsewhere calls it. The second Season, that of ripe Judgment, whilst the Child is yet a Member of the Parent's Family, ἕως ἂν μὴ χωρισθη̂,3 as long as he is not separated or gone from it, as the same Aristotle expresses it. The third, when he has left that Family. In the first Season,4 all the Actions of Children are under the Government and Direction of their Parents; for it is but reasonable, that he who cannot rule himself, should be ruled by some Body else. It is Aeschylus's Opinion and Observation, Aetas prima, &c.5 Children not having the Use of Reason, and being like the Brutes, need to be educated and conducted by the Reason of another. And none but Parents are naturally intrusted with this Charge.Edition: current; Page: [510]
2. Notwithstanding this, Children in their Infancy are, by the Law of Nations, capable of having a Property in Things, tho' by Reason of that Imperfection of Judgment we spoke of, they cannot exercise that Right. They have a Right, as6 Plutarch speaks of Children, ἐν κτήσει, to the Possession, not ἐν χρήσει, to the Use of it. Wherefore it is not by the Law of Nature, that whatever comes to the Children is acquired to the Parents; but by Vertue of the Civil Laws of some particular Countries, which also in this Affair distinguish7 the Father from the Mother; Children not emancipated, from those who are so, and natural ones from legitimate; Distinctions unknown to Nature, which establishes no other than the Prerogative of the Male Sex, in a Conflict of contrary Wills, as I have just now remarked.
III. Of the Season past Childhood, but continuing in the Family.III. In the second Season, when Age has ripened their Judgment, no1 other Actions but such as are of some Moment and Consideration, and concern the State of the Father's or Mother's Family are subject to the Will of Parents; and thisEdition: 1738; Page: [187] only, because it is but just, that what makes a Part of the Whole, should conform itself to the Interest of the Whole. As for other Actions, Children then have ἐξουσίαν; that is, a Edition: current; Page: [511] moral Faculty of Acting as they think fit, tho' even in these they ought always to endeavour to behave themselves in a Manner agreeable to their Parents. But this Obligation, not being by Vertue of a moral Faculty, as those above are, but proceeding from natural Affection, Respect, and Gratitude, does not invalidate2 what is done contrary to the Will of Parents; no more than a Donation made by a lawful Proprietor, would be null and insignificant, because granted against the Rules of good Husbandry.
IV. Of the Right of Chastising Children. Ch. 20. § 7.IV. During both these Seasons, the Right of Governing comprehends also the Right of Chastising, so far as Children are either to be forced to their Duty, or corrected and reformed. As to what regards more rigorous Punishments, we shall examine that in some other Place.
V. Of the Right of selling Children.V. But, tho' the paternal Authority be so personal and annexed to the Relation of Father, that it can never be taken from him and transferred to another; yet may a Father naturally, and where the Civil Law does not obstruct it, pawn his Child, and1 sell him too, if there be a Necessity for it, and no other Way of maintaining him; as it was authorized2 by Edition: current; Page: [512] an antient Law of the Thebans, (which Aelian mentions in his second Book) who had borrowed it from the Phoenicians, and they from the3 Hebrews; and which very Law, Apollonius tells us, in his Epistle to Domitian, obtained among the Phrygians too. Indeed Nature itself is supposed to grant a Right to every Thing, without which, what she commands, cannot be compassed and brought about.
VI. Of the Season past Childhood, and when Children go out of the Family.VI. In the third and last Season, the Child is altogether άυτεξούσιος, at his own Disposal, that Obligation, however, of Affection and Respect, remaining still in Force, because the Reason of it is perpetual, and never ceases. From whence it follows, that the Actions of Kings cannot,1 on the Account of their having their Parents living, be null and void.
VII. A Distinction of the natural and civil Power of Parents. Numb. xxx. 2, &c.VII. Whatever Authority Parents have beyond what we have now stated,1 proceeds from some voluntary Law, which varies according to the Difference of Places. So by the Law which GOD gave the Hebrews, a Father's Power over his Son or Daughter, to disannul their Vows, was not perpetual, but lasted only so long as they continued in their Father's Edition: current; Page: [513] House. Thus the Roman Citizens had aEdition: 1738; Page: [188] Sort of paternal Power over their Children2 peculiar to themselves, as long as they were not3 emancipated, tho' they were Heads of Families of their own.Lib. De Praeceptis Regis, Praecept. vetante 242. And this was such a Power, as the Romans confessed that other People had not over their Children. Sextus Empiricus, Pyrrhon. B. III. ὁι Ῥωμαίων νομοθέται, &c.4 The Roman Legislature has in joined Children to be their Fathers mere Slaves; and that the Children's Goods should not be at the Disposal and Direction of the Children, but their Father, till they obtain their Freedom, as Slaves do. But this is rejected by others, as barbarous and tyrannical. And Simplicius in Epictetus's Manual, ὁι δὲ παλαιοὶ τω̂ν Ῥωμαίων, &c.5 The antient Roman Laws having a Regard both to that Superiority which Nature gives to Parents, and to the Pains and Labour their Children cost them, and also willing that Children should be altogether subject to them; at the same Time, I presume, depending upon that Affection which Nature inspires Parents with, have indulged to Parents the Liberty, if they please, either of selling or killing their Children with Impunity. Such another paternal Right in Use among the Persians, is condemned by Aristotle6 as a Piece of Tyranny. I was willing to mention this, for the more accurate Distinction of Things that are permitted by the Civil Law from those that are authorised by the Law of Nature.
VIII. Of the Husband's Right over his Wife. Eph. v. 23.VIII. 1. That Right over Persons which arises from Consent, is derived either from Association or Subjection. The most natural Association is Edition: current; Page: [514] that of Marriage; but because of the1 Difference of Sex, the Authority is not equal; the Husband is the Head of the Wife in all conjugal and family Affairs; for the Wife becomes a Part of the Husband's Family, and it is but reasonable, that the Husband should have the Rule and Disposal of his own House. If there be any other Prerogative of Husbands,Numb. xxx. 7, &c. as the Privilege allowed them by the Jewish Law of invalidating every Vow the Wife made; and among some People, that of selling their Wives Goods: This is not founded on Nature, but on an arbitrary Establishment. Let us now see in what the Nature of Marriage consists.
2. Marriage then we look upon to be in its natural State, the Cohabitation of a Man with a Woman, which puts the Woman, as it were, under the immediate Inspection and Guard of the Man: For we see, even among some Beasts, such a Sort of Society between the Male and Female. But Man being a rational Creature, Marriage, in Regard to him, includes moreover, an Engagement of the Wife to her Husband.
IX. Whether an Incapacity of parting with a Wife or a Confinement to one, are Essential to Marriage from the Law of Nature or only from that of the Gospel. Deut. xxi. 15. — xvii. 16, 17. 2 Sam. xii. 8. Deut. xxiv. 4.IX. 1. Nor does Nature seem to require any Thing more to constitute a Marriage, nor even the Law of GOD, before the Propagation of the Gospel. For before the Law of Moses, Persons even of the greatest1 Holiness had several Wives at once, and in2 that Law too there are some Precepts directed to those who have several Wives at one and the same Time; and the King is ordered not to multiply to himself too many Wives Edition: current; Page: [515] and Horses; where the Hebrew Interpreters remark,3 that the King was allowed eighteen Wives or Concubines; and GODEdition: 1738; Page: [189] observes to David, that he had given him4 several Wives, and those too Women of Note and Quality.
2. So likewise is there a Manner and Method prescribed to him, who had a Mind to part with his Wife, nor is any Body prohibited Marriage with the Woman so divorced, except he who did divorce her, and the5 Priest. But this Liberty of passing to another Husband, is even by the Law of Nature so far to be restrained, as that no Confusion of Issue may thence arise. And from this came that Question which, as6 Tacitus relates, was formerly proposed to the Priests, Whether she who had conceived, Edition: current; Page: [516] and was not yet delivered, might lawfully marry? Among the Jews the Intervention of three Months was in joined. But our Lord JESUS CHRIST has prescribed in this,Matt. v. 32. — xix. 9. as well as in many other Things, a more perfect Rule; according to which he declares7 both him who parts with Edition: current; Page: [517]Edition: current; Page: [518]Edition: current; Page: [519]Edition: current; Page: [520] his Wife,Edition: 1738; Page: [190] except for Adultery, and him who marries her, guilty of Adultery. And his Apostle and Interpreter, St. Paul, not only gives the Husband Power over the Wife's Body,1 Cor. vii 4. which in the State of Nature also was allowed him, (ὁ γὰρ μιγνύμενος, &c. For he who is joined to a Woman, is, by the Laws of Marriage,Edition: 1738; Page: [191] Master of her Body, says8 Artemidorus) but also grants the Wife reciprocally a Power over the Husband's Body, Thus establishing, as Lactantius observes,9 an Equality of Rights between two Persons that make but one Body.
3. I know very well, that many are of Opinion, that in both those Points (of Polygamy and Divorce) CHRIST did not make any new Law, but only reestablished that which GOD the Father at the very Creation had given;Mark x. 6. our Saviour's Words, which remind us of that Beginning, seem to have given Occasion to this Opinion. But here we may answer, that from that first Institution indeed, wherein GOD gave to one Man one Woman only, it sufficiently appears10 whatEdition: 1738; Page: [192] is best, and most Edition: current; Page: [521] grateful to GOD; and consequently, what has always been excellent and commendable; but not, that it is any Crime to do otherwise; because where there is no Law, there can be no Transgression; and 'tis certain, that in those Times there was no Law about that Matter. So also when GOD declared, whether by Adam or Moses, that the Marriage Union was so great,Gen. ii. 24. that a Man should leave his Father's Family to form a new one with his Wife; 'tis the same Thing that is said to Pharaoh's Daughter, Psal. xlv. 10. Forget thine own People and Father's House. And tho' from the In junction of so strict a Friendship, it is plain enough, that 'tis very agreeable to GOD, that this Union should be perpetual; yet can it not be proved from hence, that GOD did even then11 command that this Edition: current; Page: [522] Engagement should not, upon any Account whatever, be broke and dispensed with. But it is CHRIST who has forbid Man to put asunder that which GOD in the first Institution of Marriage had joined together; taking for the worthy Subject of a new Law, what was most eligible in itself, and most acceptable to GOD.
4. It is certain, that in former Ages most Nations had the Liberty, not only of Divorces, but also of marrying several Wives. Tacitus12 observes, that the Germans were almost the only Barbarians, in his Time, who were contented with one Wife a-piece; and History furnishes us with an infinite Number of Examples of the contrary Practice, amongst the13 Persians, and the14 Indians.15 Among the16 Aegyptians, the Priests alone took up with one Wife. And among the Greeks,Edition: 1738; Page: [193] Cecrops was the first, as Athenaeus testifies, who μίαν ἑνὶ ἔζευξεν,17 coupled one Woman with one Man; which tho', by the By, was not long observed, even at Edition: current; Page: [523] Athens, as the Example of18 Socrates and others19 inform us. And if there were some People who lived with greater Continency, as the Romans, who never had two Wives at the same Time, and a long While refrained20 from a Divorce, they are indeed to be commended for it, as having come up very near to that State, which is best, and most eligible: And the Marriage of a Priestess of21 Jupiter, among these Romans, was never dissolved but by Death: However, it does not follow from all this, that they who did otherwise, before the publishing of the Gospel, were guilty of a Crime [[22]] in so doing.
X. By the Law of Nature only. Marriages are not void for want of the Consent of Parents.X. 1. Let us now enquire, what Marriages are valid by the Law of Nature: To form a right Judgment in which Affair we should remember, that1 Not all Things which are contrary to the Law of Nature, are, by the Law of Nature, null and void; as is evident in the Case of a prodigal Deed of Gift; but only those Things which want the Principle that makes an Act valid, or2 which are attended with some lasting Effect, whereby the Turpitude Edition: current; Page: [524] of the Act is perpetuated. The Principle necessary to render an Act valid, is here, as in other human Acts, capable of producing a Right, a moral Faculty, joined with a sufficient Will. What Will is sufficient to constitute a Right,Ch. 11. of this Book. will be better enquired into, when we come to treat of Promises in general. As to the moral Faculty, there arises a Question about the Consent of Parents, whether that, as some People contend for, is in some Sort necessary by the Law of Nature to the Validity of a Marriage; but they quite mistake the Matter, for all the Arguments they bring for it, prove no more than that it is the Duty of Children to endeavour to obtain their Parent's Consent; which we readily grant too, with this Proviso, that the Will of the Father and Mother is not visibly unjust. In Truth, if Children owe their Parents a Respect in all Things, certainly then ought they more particularly to pay it in an Affair, such as Marriage is, that concerns the whole Family. But from hence it does not follow, that a Son is not Master of himself, and that he has no Right to marry without the Consent of his Parents. For when a Man marries, he is supposed to be of a competent Age, and Years of Discretion, and to leave the Family; so that in this Respect he is not under the Direction of the Head of that Family. But if he offends against the Reverence he owes him, such a Failure is not sufficient to annul the Act.
2. The Laws of3 the Romans and other Nations, which declare some Marriages to be void, where the Father's Consent was wanting, are not then founded on theEdition: 1738; Page: [194] Law of Nature, but the mere Will of the Edition: current; Page: [525] Legislators. For by the same Laws4 the Mother, to whom however the Children do naturally owe a Respect and Veneration, does not, by her not consenting, disannul the Marriage; nor even the Father, if the5 Son was emancipated; and if the Father himself be under the Power of his Father, then both Grandfather and Father must give their Consent to the Son's Marriage;6 but for a Daughter, the Consent of the Grandfather alone is sufficient; which Distinctions being utterly unknown to the Law of Nature, are Demonstration enough, that it is the Civil Law has introduced them.
Cod. l. 5 tit. 4. De Nuptiis, Leg. 20.3. We find indeed in the Scriptures several pious Men, and especially Women, (to whose Modesty it was most agreeable, in an Affair of this Kind, to be determined by the Judgment and Will of7 others: Pertinent to this is what we read in the first Epistle to the Corinthians,vii. 36. of the disposing of a Virgin) in contracting Marriages wholly directed and advised by their Parents: But yet neither is Esau's Marriage pronounced void,Gen. xxix. 7, 8. — xxxvi. nor his Children declared illegitimate, for being married without such Consent and Direction. Quintilian, with a Regard to what is strictly and naturally right, expresses himself thus,8 If it be allowable for a Son to do Edition: current; Page: [526] sometimes even against the Father's Will, what would otherwise deserve no Blame at all, certainly that Liberty is never more necessary than in Matrimony.9
XI. By the Evangelical Law, Marriages with another Woman's Husband, or another Man's Wife, are null and void.XI. A Marriage, no Doubt of it, contracted with a Woman, who has already an Husband, is void by the Law of Nature, unless her first Husband has divorced her; for till then his Property in her continues: But by the Christian Law,1 till Death breaks off the Engagement. And such a Marriage is therefore void, as well because the moral Faculty is removed by the former Marriage, as because all the Effects of it are criminal; every Act of the second Marriage being an Usurpation of that which belongs to another. So on the other Hand a Marriage contracted2 with him who has a Wife already, is void, by Reason of that Right which CHRIST has allowed the virtuous Woman over her Husband.
XII. By the Law of Nature the Marriages of Parents with their Children are unwarrantable and void.XII. 1. The Question about the Marriages of those who by Blood or Affinity are related, is a nice and difficult Point, and which has frequently been managed pro and con, with no little Heat and Commotion. For whoever attempts to assign certain and natural Reasons why such Marriages Edition: current; Page: [527] are unwarrantable, in the MannerEdition: 1738; Page: [195] they are prohibited by the Laws and Customs of Nations,1 will by Experience find it a Task not only difficult but impracticable. For as to that Reason which Plutarch2 in his Roman Questions offers, and St. Austin3 after him, in his City of GOD, B. xv. C. 16. of extending Friendships by extending Alliances, is not of so much Weight and Consideration as to make one believe that Marriages contrary to such an End are to be reputed void or unlawful. For that which is less useful is not merely upon that Account unlawful. Add to this, that it may possibly so happen, that some greater Advantage, however great this may be, may interfere with and oppose it, and this too, not only in the Case which GOD in the Jewish Law has Edition: current; Page: [528] excepted, when4 a Man dies without Issue, in Order to keep the Estate of their Ancestors still in the Family; on which Reason is founded another Regulation, wherein the5 Attick Law was conform to that of the Hebrews,6 I mean, in reference to Virgins, who are7 sole Heiresses, called by them ἐπίκληροι, but also in many other Cases that we frequently meet with, or may imagine ourselves.
2. When I speak of the Difficulty and Impossibility of shewing by convincing Reasons, that Marriage between such as are related by Blood or Affinity are criminal and void by the Law of Nature, I except the Marriages of Fathers and Mothers with their Children of any Degree or Remove; the Reason why such Marriages are unlawful, being, if I am not mistaken, sufficiently evident.8 For neither can the Husband, who by the Law of Marriage is the superior, pay to his Mother (if his Spouse) that respect which Nature requires: Nor a Daughter to her Father, because tho' she be his inferior, even in Marriage, yet that Union introduces such a Familiarity as is incompatible with such a Respect. Very well has Paulus the Civilian, when he had said before,9 that In contracting Marriages we ought to consult the Right of Nature, and the Decency of the Thing, subjoined, that it was a Breach of that Decency to marry one's own Daughter. Such MarriagesEdition: 1738; Page: [196] therefore, there is no Room to doubt, are Edition: current; Page: [529] unwarrantable, and ipso Facto void, because the Effect of them is attended with a perpetual Crime.
3. Nor ought we to be any ways influenced by Diogenes's10 and Crysippus's Argument, which they fetch from Cocks, and other brute Creatures, to prove that such Conjunctions are not against the Law of Nature. For as we said in the Beginning of this Work,B. 1. Ch. 1. § 10, 11. it is enough to repute a Thing unwarrantable, if it be repugnant to human Nature. And such is the Conjunction of Parents with Children, which Paulus the Lawyer calls11 An Incest, according to the Law of Nations: And Xenophon,12 a Law, which is no less a Law, tho' the13 Persians despised it. For that is justly termed Natural, which, as14 Michael Ephesus very well observes, is, Τὸ παρὰ τοɩ̂ς πλείστοις κοὶ ἀδιαστρόϕοις καὶ μετὰ ϕύσιν ἔχουσιν, practised by the Generality of such People as are uncorrupted, and live according to Nature. Hippodamus15 the Pythagorean, called the carnal Conjunctions of a Father with his Daughter, or of a Son with his Mother, Παρὰ ϕύσιν ἀμέτρους ἐπιθυμίας, ἀκατασχέτους ὁρμὰς, ἀνοσιωτάτας ἡδονὰς, unnatural and immoderate Lusts, unbridled Passions, most impious Edition: current; Page: [530] Pleasures. Lucan speaking of the Parthians, says, that amongst them,16 The King, when drunk, does not dread any Sort of Incest prohibited by the Laws. And presently after,17 What can we suppose a Man not capable of,Orat. 20. who thinks he may lawfully lie with his own Mother? Dion Prusaeensis very judiciously ascribes this Custom of the Persians in particular, to their bad Education.
4. And here one would be amazed at Socrates's18 Fancy in Xenophon, who in such Sort of Marriages can find nothing amiss but the Inequality of Years; from whence, says he, will ensue Barrenness, or the Children will be ill formed. But if this were the only Objection to such a Marriage, it would certainly be neither null nor unlawful, no more than between other Persons whose Ages are often as disproportionate, as that of a Father and Mother is usually in Respect of their Children, when marriageable.
5. But to dwell no longer upon this, let us rather enquire, whether, besides that which we said might be conceived by the Light of Reason, there be not in Men, whom a bad Education has not spoiled, a certain Aversion grafted in their very Tempers, something shocking, and that makes Nature recoil at the Thoughts of mingling with their Parents, or their own Progeny, since even some Beasts naturally shew such an Abhorrence. For many have been of this Opinion; and Arnobius, in his fifth Book against the Gentiles,19 What! could Jupiter conceive an infamous Passion even for his own Mother, and could he not be diverted from such a criminal Desire by the Horror which Nature has inspired not only into Men, but also into some Beasts? There is a notable Story upon this Subject, in Aristotle's History of Animals, Lib. 9. C. 49. of a Camel and a Scythian Horse;20 and another notEdition: 1738; Page: [197] unlike it in Oppianus, Of Edition: current; Page: [531] Hunting, B. 1. And Seneca, in his Hippolytus,21 The very Beasts shun incestuous Commerce, and without knowing the Rules of Duty, by their natural Modesty observe the Laws of Proximity of Blood.
XIII. The Marriages of Brothers with Sisters, of a Mother-in-Law with her Son-in-Law, of a Father-in-Law with his Daughter-in-Law, and such other Matches as these, are unwarrantable and void by the positive Law of GOD.XIII. 1. The next Question is about all the Degrees of Affinity, and the Degrees of Consanguinity in the Collateral Line, those especially which are particularly mentioned in the xviiith of Leviticus. For granting, that these Prohibitions are not derived from the mere Law of Nature, yet do they plainly appear to have their Sanction from an express Order of the Divine Will: Nor is this such an Order as obliges the Jews only, but all Mankind, as seems to be very fairly collected from those Words of GOD to Moses, Defile not yourselves in any of these Things; for in all these the Nations are defiled which I cast out before you. Again, You shall not commit any of these Abominations: For all these Abominations have the Men of the Land done which were before you, and the Land is defiled.
2. For if the Canaanites, and the People about them offended by such Actions, there must have been some Law that prohibited them,1 which Edition: current; Page: [532] Law not being purely natural,Lev. xviii. 24, 26, 27. must needs have been given by GOD, either to them in particular, (which indeed is not very likely, nor do the Words import so much) or to all Mankind; either at the Creation or after the Flood. But now such Laws as were in joined all Mankind, seem no Ways abolished by CHRIST, but only those, which, like a Partition-Wall, separated the Jews from all other People. To which we may add, that St.Eph. ii. 14. Paul does in very severe Terms express his Abhorrence of the Marriage of the Son-in-Law with his Mother-in-Law, tho' there is no Command of CHRIST relating to that Affair; nor does he himself urge any other Reason, than that such a Mixture was even by Pagans reckoned impure,1 Cor. v. 1. It was a Fornication not so much as named amongst the Gentiles. The Truth of which Assertion, among2 several other Proofs, appears Edition: current; Page: [533] from Charondas's Laws,Edition: 1738; Page: [198] which put a Mark of Infamy upon such a Marriage; and from that Passage in Lysias's Oration, Συνῴκει ὁ πάντων σχετλιώτατος ἀνθρώπων τῃ̑ μητρὶ καὶ τῃ̑ θυγατρὶ, That most profligate Wretch lived as Man and Wife with the Mother and her Daughter. And that of Cicero, in a Case not unlike this,Orat. pro Cluentio. (c. 6) is not foreign to the Matter in Hand: For when he had declared how the Mother-in-Law had married her Son-in-Law, he subjoins, Oh, the incredible Wickedness of the Woman! a Wickedness that no other was ever known to be guilty of. When King Seleucas would fain have given his Wife Stratonice to his SonVit. Demetr. Appian, De Bello Syriac. Antiochus, he was afraid, as Plutarch relates it, lest she should be shocked, Τῷ μὴ νενομισμένῳ, as at an unlawful Thing. And in Virgil we have,
Which general Opinion, if not derived from an invincible Impression of the Light of Nature, must needs proceed from an antient Tradition, founded upon some express Command of GOD.Edition: current; Page: [534]
3. The antient Hebrews, who in this Matter are no contemptible Expositors of the Divine Law,More Nebochim l. 3. c. 49. and after them Moses Maimonides, who has read, and with great Judgment digested all their Writings, say, that there are two Reasons assignable for those Laws, mentioned in the xviiith Chapter of Leviticus, about Marriages: The first, A certain natural Modesty, which will not suffer Parents to mingle with their Issue, either in their own Persons, or3 the Persons of them to whom they are by Blood or Marriage nearly related. And the Second, That the Familiarity and Freedom with which some Persons daily converse together, would give Occasion to Fornications and Adulteries, if such Amours might terminate in a lawful Marriage. If we rightly apply these two Reasons to those Divine Laws in Leviticus, which I have mentioned, it will easily appear, that without speaking here of Parents and Children, between whom Marriage is prohibited, in my Opinion, by natural Reason, tho' there were no express Law about it; I say, it will appear, that those who are related by Affinity in the direct Line;4 and also, those who are related by Consanguinity in the first Degree of the collateral Line, which in Reference to the common Stock is usually called the Second, cannot marry together for the first Reason, because of the too lively Image of their common Parent, whomEdition: 1738; Page: [199] every Child immediately represents. Edition: current; Page: [535] And this is founded on that which if not prescribed by Nature, is at least pointed out to us by the Light of Nature, as more decent than its contrary; as many other Things which make the Subject of Laws both Divine and Human.
4. On this Principle the Rabbins say, that in the Degrees forbidden in the direct Line, some are comprehended that are not mentioned in the Law, but in Regard to which the same Reason manifestly takes Place. The Names of which Relations with them are these, The Mother's Mother, the Mother's Father's Mother, the Father's Mother, the Father's Father's Mother, the Father's Father's Wife, the Mother's Father's Wife, the Son's Daughter-in-Law, the Son's Son's Daughter-in-Law, the Daughter's Daughter-in-Law, the Son's Daughter's Daughter, the Son's Son's Daughter, the Daughter's Daughter's Daughter, the Daughter's Son's Daughter, the Wife's Son's Daughter's Daughter, the Wife's Daughter's Daughter's Daughter, the Wife's Father's Mother's Mother, the Wife's Mother's Father's Mother; that is, to speak after the Roman Fashion, all Grandmothers and Great Grandmothers, Mother-in-Law's Mothers, Great Granddaughters, Son-in-Law's Daughters, Daughter-in-Law's Daughters, Grandsons Wives, Wives Grandmothers; because, under the Title of Relation by the Father's Side is comprized also that by the Mother's, and the second Degree under the first, and the third under the second; beyond which it is scarce possible that any Controversy can arise, for if the Thing were possible, all the following Degrees would be comprehended in infinitum.
5. Now the Hebrews think that these Laws, and those that prohibit the Marriages of Brothers with Sisters, were given to Adam5 at the same Time as that In junction of serving GOD, of administring Justice, of not shedding Blood, of not worshipping false Deities, of not Robbing; but so that these matrimonial Laws should not be in Force 'till Mankind was sufficiently multiplied, which could never have been if, in the Beginning of the World, Brothers had not married their Sisters. Nor do Edition: current; Page: [536] they look upon it at all material, that Moses6 has said nothing of it in its proper Place; because it was enough that he had tacitly signified it in the Law itself, by condemning foreign Nations upon that very Account; for there are several such Things in the Law, which are not taken Notice of in Order of Time, but as Occasion requires: From whence arises that celebrated Maxim among the Rabbins, that In the Law there is no such Thing as first or last; that is, many Things are set down there before or after their Time.
See Cajet. in Matt. xix.6. Michael Ephesius, at the fifth Book7 of the Nicomachia, has these Words, concerning the Marriage of Brothers and Sisters, Τὸν ἀδελϕὸν μίγνυσθαι τῃ̑ ἀδελϕῃ̑, &c. For a Brother to lie with a Sister, was at the Beginning indeed a Thing altogether in different; but now there being an established Law against such Conversations, it is far from being in different. Diodorus Siculus calls the forbidding of Brothers and Sisters matching, Κοινὸν ἔθος τω̂ν ἀνθρώπων,8 The common Custom of all Men: From which Custom however he excepts the Aegyptians; and Dion Prusaeensis, all Barbarians. Seneca has written,9 We represent the Gods, as marrying one with another, and that in a criminal Manner, since Brothers amongst them marry their Sisters. Plato, in his eighth Book De Legibus, calls such Edition: current; Page: [537] Matches, Μηδαμω̂ς ὅσια καὶ θεομιση̂,10 Unlawful, and detested by GOD.Edition: 1738; Page: [200]
7. All which evidently proves, that there was an antient Tradition of a divine Law against such Marriages, and therefore we find that they commonly use the Word Nefas, (Crime) when they speak of them. And that all Brothers and Sisters are included here is plain from the Law itself,11 which comprehends those of that Degree as well by the Father's as the Mother's Side, and those whether born and educated at home or abroad.
XIV. Marriages with Relations of a more distant Degree, do not seem so unwarrantable.XIV. 1. Which clear and particular Recital seems to shew the Difference1 between these and more distant Degrees: For Example, to marry an Aunt by the Father's Side is forbidden; but to marry a2 Brother's Daughter, Edition: current; Page: [538] where there's the same Degree of Blood, is not forbidden; nay, there are several Instances of this Kind among the Jews.3 To marry Nieces is to us entirely new, but very usual with other People; nor is it by any Law prohibited, says Tacitus. Isaeus,4 and Plutarch5 in the Life of Lysias, Edition: current; Page: [539] observe, that it was allowed of at Athens. TheEdition: 1738; Page: [201] Reason that the Hebrews alledge for it is this, that young Men often frequent their Grandfathers and Grandmothers Houses, or even live there with their Aunts; but they much seldomer go to their Brothers, nor have they so much Right in their Families. Now if we grant all this, as indeed it is consonant enough to Reason, we must acknowledge, that the Law of not marrying Relations in the direct Line, as well as Sisters, since the Multiplication of Mankind, is perpetual, and universal too, as being founded on natural Decency; insomuch that whatever is done contrary to this Law, is, on Account of the Vice that always subsists, null and void: But the Case is not the same as to Laws concerning other Degrees, since they are rather made to prevent certain Inconveniencies, than to divert Men from a Thing that is in itself dishonest: Besides that, there are other Means of remedying those Inconveniencies.
2. And by the antient Canons, which are called Apostolical,6 he who married two Sisters one after another, or his Niece; that is, his Brother's or Sister's Daughter, was only in capacitated for the Ministerial Office. Nor is there any Difficulty in answering what we said of the Sinimputed to the Canaanites, and the People about them. For the Terms of Scripture, tho' general, may be restrained to the most7 considerable Things mentioned in that Chapter, as to Sodomy, Bestiality, Commerce with Father or Mother, or with other Men's Wives; the Turpitude of which Conjunctions is such, in Comparison of the others, that it was to put, as the Rabbins speak, a Barrier to the former, that the Laws were made in Reference to the latter. The Prohibition against marrying two Sisters at once, may be a very just Argument for not understanding of every particular Thing in that Chapter, what is spoken in general Terms; for Edition: current; Page: [540] Jacob's Character and Piety, who himself acted contrary to this Prohibition,Exod. vi. 20. Eust. in Iliad. l. 12. v. 224. Id. in Odyss. l. 7. v. 146. will not suffer us to believe, that it was formerly laid upon all Mankind. To which we may add, what Amram, Moses's Father, did; for he, before the Law, married his Aunt by the Father's Side, as Diomedes and Iphidamas amongst the Greeks, married their Aunts by the Mother's Side; and Alcinous, his Brother's Daughter Arete; and Electra was betrothed to Castor, her Uncle by the Mother's Side.See Euripides's Electra, v. 312, 313.
3. But yet the primitive Christians were very much in the right of it, who voluntarily observed not only those Laws which were given in common to all Men, but those which were peculiarly designed for the Hebrew People: Nay, and extended the Bounds of their Modesty even to some farther Degrees of Relation, that in this Virtue too, as well as in all others, they might excel the Jews. And that this was done early, with an universal Consent, appears from the Canons. St. Austin, speaking8 of Cousin-Germans both by the Father and Mother marrying among Christians, They, says he, seldom practised what the Laws allowed; because tho' the Law of GOD has not forbid it, nor the Law of Man is yet against it; they dreaded, however, a warrantable Action for its Nearness to what is unwarrantable. Several Princes and States have followed in their Laws these Notions of Modesty: Thus Theodosius's Institution9 forbids any Edition: current; Page: [541] Cousin-Germans to marry,Edition: 1738; Page: [202] and is highly commended by St. Ambrose, as a Regulation of great Sanctity and Piety.
4. But we must at the same Time observe, that what an human Law forbids to be done, when done, is10 not therefore invalid, unless the Law adds this Clause too, and expressly declares it void.11 By the LXth Canon of the Council of Eliberis, if any Man, after the Decease of his Wife, marries her12 Sister, and she be a Christian, he is excluded from the Sacrament five Years; which evidently supposes that the Marriage Engagement still stands good. And as we just now said, by the Canons called Apostolical, he who married two Sisters, or his Brother's Daughter, was only rendered incapable of Orders.Edition: current; Page: [542]
XV. There may be some very warrantable Matches which yet may be termed by the Laws Concubinage.XV. 1. But to go on to other Matters, we must observe, that there is a Sort of1 Concubinage, which is indeed a real and valid Marriage, tho' it may not have some of those Effects that are peculiar to the Civil Right, or perhaps, may lose some natural Effects by an Obstruction from the Civil Law. Thus, for Instance, the Commerce of a Man and Woman Slave, according to the Roman Law, was called Contubernium,2 Cohabitation, not Matrimony; tho' in such a Society there is nothing essential to a Marriage wanting; and therefore in the antient Canons it was expressly termed, Γάμος, Marriage. So the Commerce between a Freeman and a Woman Slave, is called not Marriage but Concubinage; and afterwards that Name was given by Analogy to the Union of other Persons of a different Condition; as at Athens, when a Citizen espoused a Foreigner, their Children passed for Bastards, as appears from some Passages of Aristophanes3 and Aelian.4 Servius5 upon that Verse of Virgil,
expounds the Word Nothos, of mean and obscure Extraction by the Mother's Side.Edition: 1738; Page: [203]Edition: current; Page: [543]
2. Now as in the State of Nature there might be a real and true Marriage between such Persons as we have been speaking of, if the Woman was under the Husband's Protection and had promised him Fidelity: So also in a State of Christianity, that of a Man and Woman Servant,See Decretal, l. 4. tit. 9. De Conjugio Servorum, c. 1. or of a Freeman and a Slave, will be a true Marriage; and much more that of a Citizen and a Foreigner, of a Senator and a free Woman, provided that there is, besides, what the Divine Christian Law requires, viz. An in dissoluble Union of one Man with one Woman; this, I say, will be a true Marriage, tho' some Advantages of the Civil Law do not accompany it, or, if they would of themselves, are hindered by this Law. And 'tis in this Sense, that we must take these Words of the first Council of Toledo:6 As for him who has no Wife, but7 a Concubine instead of a Wife, let him not be refused the Communion; provided however, that he be contented with this one Woman, whether Wife or Concubine, as he pleases. To which you may add a Passage in St. Clement's Institutions, B. viii. Chap. xxxii. And Edition: current; Page: [544] to our present Purpose it is, that Theodosius and Valentinian8 call some Sort of Concubinage an unequal Marriage, and that from thence it is said9 a Charge of Adultery may also arise.
XVI. Some unlawful Marriages may yet be valid.XVI. 1. But besides, tho' a merely human Law prohibits the contracting of Marriages between some particular Persons, it will not therefore follow that such a Marriage, if it be actually contracted, is void. For to forbid, and to invalidate, are quite different Things; the Effect of a Prohibition may be reduced to a Punishment, either arbitrary, or determined by the Law. And this Sort of Laws which forbid the doing of a Thing, but don't disannul it when done, Ulpian1 calls imperfect. Such was the Cincian Law, which forbad to give above a certain Sum, but did not make void the Gift which exceeded that Sum.Edition: 1738; Page: [204]Edition: current; Page: [545]
2. We know indeed that it was afterwards enacted by Theodosius,2 that in Case a Law only prohibited a Thing, and did not precisely add, that whatever was done contrary to that Law should be null and void; yet if the Affair came into Court, whatever was done should be declared, to all Intents and Purposes, as null and void, as if it never had been done. But this Extension of the Power of the Laws did not proceed from the proper and natural Force of Prohibitions: It was the Effect of a particular Law newly established, which other People were no Ways obliged to observe. And indeed, there is oftentimes more Indecency in the Act than in its Consequences, and the Inconveniencies3 that follow the Recision of such an Act, are also frequently greater than the Indecency or Inconvenience of the Act itself.
XVII. The Right and Authority in all Sorts of Societies, is in the Majority.XVII. Besides this most natural Society, there are several other, both publick and private; and the publick are either between a People and the Assembly or Person who governs them, or composed of several Nations. But all of them have this in common to them, that in Matters for which each Association was instituted, the whole Body, or the major Part in the Name of the whole Body, oblige all and every the particular Members of the Society.1 For it is certainly to be presumed, that those who enter into a Society are willing that there should be some Method fixed of deciding Affairs; but it is altogether unreasonable, that a greater Number Edition: current; Page: [546] should be governed by a less;Victor, de potestate civili. n. 14. and therefore, tho' there were no2 Contracts or Laws that regulate the Manner of determining Affairs, the3 Majority would naturally have the Right and Authority of the Whole. Thucydides says, κύριον εɩ̂̓ναι ὅ, τι ἀ̑ν τὸ πλη̂θος ψηϕίηται,4 What the Majority Vote, must stand good. Appian, ἔστι δ' ἔν τε χειροτονίαις καὶ δίκαις αἐι τὸ πλέον δικαιότερον,5 In Elections and Judgments, the Plurality of Voices always carries it. So Dionysius Halicarnassensis, ὅ, τι ἄν δόξη τοɩ̂ς πλείοσι τον̂το νικα̂ν,6 What the major Part approve of, must prevail. And in another Place, ὅ, τι δ' ἄν οἱ πλείους ψη̂ϕοι καθαιρώσι τον̂το ποιεɩ̂ν, What the Plurality of Voices shall repeal we must submit to. And again, ὅ, τν ἄι αἱ πλείους γνω̂μαι καθαιρω̂σι, τον̂το ειναι κυριὸν, What the Majority of Opinions declare to be null and void, that must be so in Fact and Law. So Aristotle, κύριον τὸ τοɩ̂ς πλείοσι δόξαν,7 The Opinion of the major Part is valid. And Curtius, B. x.8 Let us stand to what the Majority have determined. Prudentius says,
9that, A small Number of People do not represent the State nor the Senate. And a little afterwards,
that, Their Suffrage ought to yield to that of the greater Number. And in Xenophon10 you have this Expression, ἐκ τη̂ς νικώσης πράττειν πάντα, We must do all Things in Conformity to the prevailing Opinion.
XVIII. What Opinion ought to prevail when the Number of Votes is equal.XVIII. But if the Votes were equal, nothing could be determined, because there is not Weight enough to turn the Scale of the Affair one Way or other; upon which Account it is, that1 when the Yea's and No's are equal, the Defendant is supposed to be acquitted. And this Right of Edition: current; Page: [548] Discharge the Greeks, from the Story of Orestes, call2 Minerva's Suffrage: You have this Matter display'd in Aeschylus's Furies, and in Euripides's3 Tragedies of Orestes and Electra. By the same Reason the Possessor, in that Case, is maintained in Possession of the Thing contested, as is very well observed4 by the Author of the Problems ascribed to Aristotle, Sect. xxix. In one of his Controversies Seneca expresses himself thus, One Judge condemns and another acquits, in such a Difference of Opinions the milder Sentence should carry it. It is here as in a Syllogism, where the Conclusion follows the weaker Part of the Premisses.
XIX. What Opinions are to be divided, what to be joined.XIX. But here a Question does commonly arise about joining or dividing Opinions: And if we would judge of this by the mere Law of Nature; that is, independently of every Agreement or particular Law that regulates the Method to be taken in that Case, we should distinguish between the Opinions that differ in the Whole, and those whereof one includes a Part of the other.1 The latter ought toEdition: 1738; Page: [206] be joined as to what they Edition: current; Page: [549] have in common, but the former cannot. If, for Example, some fine a Man twenty (Pounds), and others ten; the Fine must be reduced to ten, against the Opinion that acquits. But if some of the Judges condemn a Criminal to Death, and others to Banishment; these two Opinions ought not to be united together against that which acquits, because they are two Things altogether different, Death not including Banishment. No more can they who would acquit him, unite2 with those who are for banishing him; because, tho' they both agree not to take away his Life, yet this is not what their Opinion does directly import, but is only a Consequence drawn from it: But he who is for having a Man banished is far from acquitting him: And therefore Pliny, when such an Affair fell out in the Senate,3 did very well observe, that the two Opinions were so opposite, that it was impossible to make them compatible together; and that it signified very little that the Voters all rejected the same Thing, since they did not all approve the same Thing. And Polybius4 takes Notice, that Postumius, the Praeter, was guilty of a great Piece of Injustice, when, in summing up the Votes, he joined those who condemned the captive Greeks, and those who were for detaining them some Time, against those who were for discharging them immediately. There is a Edition: current; Page: [550] Question of this Nature in Gellius, B. ix. and in Curius Fortunatianus, in a Place where he treats Of the Proportion of Quantities: And in Quintilian, the Father, in his 365th Controversy. The Author last mentioned, declares against joining the Opinion of two Judges who condemned to Banishment, with that of two others who voted a Mark of Infamy, against three who condemned to Death.XX. The Right of the absent devolves on those who are present.
XX. Now to this we may add; that if any, by Reason of Absence, or any other Obstruction, are incapable of making Use of their own Right, that Right, for the Time being, devolves on those who are present; which Seneca maintains, in one of his Controversies,1 Supposing yourself a Slave to two Masters, to whom you belong in common, (one of them being absent) you must serve the Master2 who is present.L. 3. contr. 10.
XXI. What Rank is to be observed amongst Equals, even if they be crown'd Heads.XXI. As to1 the Rank naturally to be observed among the Members of a Society, it is according as every Man entered in to it. So among Brothers, the Rule is for the2 eldest to take Place of the rest; and so on, without Edition: current; Page: [551] any Regard to other Qualifications: For, as Aristotle says, ἴσοι γάρ (οἱ ἀδελϕοι) πλὴν ἐϕ' ὄσον ταɩ̂ς ἡλικί-Edition: 1738; Page: [207]αις διαλλάττουσι, They are equal, (that is, Brothers) except only as they differ in Age. Theodosius and Valens, in a Constitution regulating the Rank each Consul ought to keep, very pertinently ask,3 When Persons are of one and the same Quality, and in one and the same Post, who should have the Precedence, but he who was first advanced to that Dignity? And therefore it was the antient Custom among Christian Kings and States, for those who had first embraced Christianity, to precede the rest4 in all Councils, where the Affairs of Christianity were managed.
XXII. In Societies founded upon a certain Thing, the Votes are to be considered with Regard to every one's Share in that Thing. Dig. l. 2. tit. 14 De Pactis, leg. 8. l. 16. tit. 3. Depositi vel contra, leg. 14. l. 42. tit. 5. De rebus Auctorit. Jud. &c. leg. 16.XXII. But here we must subjoin, that when a Society is founded on a Thing which all do not equally partake of; as for Instance, if in an Estate, or a Piece of Ground, one has a Moiety, another a third Part, another a fourth; in this Case we must not only let them take Place according to every Man's Share, but also consider their Votes with Regard to that Share; that is, Mensoria proportione, as the Mathematicians call it, in a Geometrical Proportion. And as this is highly consonant to natural Equity, so was it also approved of by the1 Roman Laws. Thus Strabo2 relates, that when Libyca, and three other neighbouring Cities, were Edition: current; Page: [552] made, as it were, one Corporation, it was agreed that they should have one Vote a-piece, Libyca two, because this contributed much more to the Advantage of the Community than the rest. The same Author3 tells us too, that in Lycia there were twenty-three confederate Cities, some of which were entitled to three Voices,4 some to two, some to one only, and in Proportion to this, bore the Taxes and Expence of the Publick. But, as Aristotle very well observes,5 this will be reasonable only, εἰ κτήματα χάριν ἐκοινώνησαν, When they are associated on the Account of Goods and Possessions.
XXIII. The Power of a State over its Subjects.XXIII. The Union of many Heads of Families into one People or State, gives such a Body of Men the greatest Power over its Members, because this is the1 most perfect of all Societies: Nor is there any outward Act done by any Person, which does not either by itself, or by some Circumstances or other, refer to this Society. And this is what Aristotle means, when he says, Τον̂ς νόμους ἀγορέυειν περὶ ἁπάντων,2 That the Laws prescribe concerning all Sorts of Things.Edition: current; Page: [553]
XXIV. Whether Subjects may leave the State they belong to, explained by a Distinction.XXIV. 1. And here it is usual to enquire,1 whether Subjects may go out2 of the State they belong to, without obtaining Leave for so doing. We know thereEdition: 1738; Page: [208] are some People that have no such Thing allowed them, as particularly the Muscovites; nor do we at the same Time disown, but that one may enter into a Civil Society under such Conditions, and that the Custom of the Place may have the Force of an express Agreement. By the Roman Laws indeed, at least by those of later Date, every Man was at his Liberty3 to remove his Habitation whither he pleased: But yet was he no less obliged to bear a Part in all the Offices of the Community of the Place from whence he went. But then this affected those only who continued within the Roman Empire, and the Design of that Law was the particular Advantage that arose4 from thence in Regard to Contributions.
2. But what we desire to be satisfied in, is what would naturally obtain, were there no Agreement to the contrary; nor are we speaking of going out of one Part of the State into another, but out of the whole State, or out of the whole Extent of the Dominion of the Sovereign. That we Edition: current; Page: [554] ought not to go out5 in Troops or large Companies, is sufficiently evident from the End and Design of Civil Society, which could not subsist if such a Permission were granted; and in Things of a moral Nature, what is necessary to obtain the End has the Force of a Law. But the Case seems to be quite different, when a single Person leaves his Country; as it is one Thing to draw Water out of a River, and another to divert the Course of a Part of that River. Tryphonius says,6 that Every Man is at Liberty to chuse the State of which he has a Mind to be a Member. And Cicero,7 in his Plea for Balbus, commends that Privilege which every one has, of Not staying in any State against his own Inclinations: And he calls the Power of either keeping or parting with one's Right, the Foundation of Liberty. But even here must we observe that natural Rule of Equity, which the Romans, in the Dissolutions of private Societies, always had Regard to; that one is not to go out of the State, if the Interest of the Society requires he should stay in it. For, as Proculus very well observes,Bembo, l. 7.8 A Regard is commonly had to the Interest of the Society, and not merely to the particular Interest of any of its Members. Thus, for Instance, it is no Ways for the Benefit of a Civil Society, if there be any great publick Debt contracted, for an Inhabitant to leave it, unless he be ready to pay down his Proportion towards it: Or if a War be undertaken upon a Confidence Edition: current; Page: [555] in the Number of Subjects to support it, and especially if a Siege be apprehended, no Body ought to quit the Service of his Country, unless he substitutes another in his Room, equally qualified to defend the State.
3. Excepting in such Cases as these, it is to be presumed that Nations leave to every one the Liberty of quitting the State, because from this Privilege they them-Edition: 1738; Page: [209]selves may reap no less an Advantage by the Number of Strangers they receive in their Turn.XXV. A State has no Power over those it has banished.
XXV. Nor has the State any Power over1 Exiles. The Heracidae being by Eurystheus banished Argos, do in Euripides,2 by the Mouth of Iolaus their Defender, thus express themselves,See B. 3. Ch. 20. § 41.
Alcibiades's Son, in one of Isocrates's Orations,3 speaking of the Time of his Father's Banishment, Ὁτ' οὐδὲν αὐτῷ τη̂ς πόλεως προση̂κεν, When the State had nothing to do with him, nor he with the State. We should now speak of the Society that is composed of several Nations, either by themselves, or by their Heads. But as it is a Sort of an Alliance we shall have Occasion to treat of it elsewhere,Ch. 15. of this Book. when we explain the Nature and Effects of every Alliance in general; that is, when we come to talk of the Obligations that arise from any Agreement.
XXVI. What Power is granted a Man over his adopted Child, from his voluntary Subjection to him.XXVI. Let us then pass to the Right which one acquires over Persons, by Vertue of a Subjection into which they enter by their own Consent. Edition: current; Page: [556] This Subjection is either private or publick. Private Subjection may be as various as there are various Sorts of Authority or Command. The most reputable Kind of it is Arrogation, by which a1 Person who is his own Master, does so give himself up to another, as to become a Member of his Family, and to depend upon him afterwards, as a Son at the Years of Maturity depends on his Father. A Father likewise sometimes gives his Son to another, who adopts him in this Manner; but he does not thereby transfer to him all his paternal Rights, nor disengage himself from all the Duties to which he stands bound as a Father; for Nature does not permit this; all he can do is to trust his Son to another, who undertakes to maintain him, and whom he substitutes in his own Stead for that Purpose.
XXVII. What Right a Person has over his Slaves.XXVII. 1. The most ignoble and scandalous Kind of Subjection, is that by which a Man offers himself to perfect and utter Slavery; as those amongst the Germans, who at the last Stake ventured their very Liberty upon the Cast of a Die, He that lost, says Tacitus,1 voluntarily became a Slave to the Winner. Nay, even amongst the Greeks, as Dion Prusaeensis, in his fifteenth Oration relates, Μύριοι δήπου ἀποδίδονται ἑαυτον̂ς ἐλεύθεροι ὄυτες, ὥστε δουλεύειυ κατὰ συγγραϕὴν, Thousands who are free2 oblige themselves by Contract to be Slaves.Edition: 1738; Page: [210]Edition: current; Page: [557]
2. Now perfect and utter Slavery,3 is that which obliges a Man to serve his Master all his Life long, for Diet and other common Necessaries; which indeed, if it be thus understood, and confined within the Bounds of Nature, has nothing too hard and severe in it; for that perpetual Obligation to Service, isSee Busbeq. Legat. Turc. Ep. 3. recompensed by the Certainty of being always provided for; which those who let themselves out to daily Labour, are often far from being assured of: And from hence does that which Eubulus4 said, frequently happen,
He was willing to stay with them for his Victuals without Wages. And the same Comedian in another Place,
Many that run away from their Service, return of themselves5 to their old Manger. Thus too Posidonius the Stoick has observed in his History,6 that there were many People formerly, who, sensible of their own Weakness and Incapacity for getting a Livelihood, voluntarily submitted themselves Slaves to others, ὅπως παρ' ἐκείνων, &c. That their Masters should provide them Necessaries, and they should, in return, do them all the Edition: current; Page: [558] Service they were able. Others add an Instance of this in the Maryandini; who, for the same Reason, made themselves Slaves7 to the Heracleotae.
XXVIII. How far the Power of Life and Death may be said to be comprehended in this Right.XXVIII. But no Masters, (if we judge by the Rules of full and compleat Justice, or before the Tribunal of Conscience) have the Power of Life and Death over their Slaves: Nor can one Man have any Right to kill another, unless he has committed some capital Crime. Tho' by the Laws of some Nations, the Master, who upon any Account whatever, kills his Slave, does it with Impunity; as indeed Kings, who have an absolute and uncontrolable Power, may every where do it. Seneca has long before us made this Comparison,1 If the Necessity he is under, and the Dread of suffering severely in Case of a Fault, makes it impossible for a Slave to be entitled to any Merit for his Service, the same will be a sufficient Objection to any Plea of Merit in him who has a Prince, and in him who has a General; for, tho' under a different Denomination, their Authority is the same. Not but that a Slave may undoubtedly be injured by his Master, as the same Seneca2 with Reason asserts, but the Impunity passes for a Right in an improper Sense. It was such a Right or Power that3 Solon, and the old Edition: current; Page: [559] Roman Laws, granted Pa-Edition: 1738; Page: [211]rents over their Children. Thus Sopater, Ἐξη̂ν πατρὶ ὄντι, &c.4Sext. Empiric. Pyrrhon. hypotyp. l. 3. c. 24. § 211. Ed. Fabric. He was allowed, as a Father, to kill his Children. He is allowed it, in Case they have committed any Crime; and indeed the Reason why the Law has indulged a Parent this Privilege, in the Presumption that he would certainly prove a very equitable Judge. And Dion, in his fifteenth Oration, says, that the same Right does prevail, παρὰπολλοɩ̂ς καὶ σϕόδρα εὐνομουμένοις, among several People, and these the most eminent for good Discipline and Constitutions.
XXIX. What the Law of Nature directs about Children born of Slaves.XXIX. 1. Concerning those who are born of Slaves, the Point is more difficult. By the1 Roman Laws, and by the Law of Nations in Regard to Prisoners of War, (as we shall shew elsewhere) as the young ones of Beasts, so the Children of Slaves follow the Condition and Circumstances of the Mother: Which, however, is not altogether so agreeable to the Law of Nature, when the Father can by any sufficient Token be discovered. For since among Brutes, the2 Male no less than the Female, takes Care of its Young, it is evident, that the Young do belong as much to the one as the other: And therefore, if the Civil Law had been silent in the Matter, Children would3 follow as much the Father's Condition Edition: current; Page: [560] as that of the Mother. Let us suppose then, to lessen the Difficulty, that both Parents are Slaves, and let us see whether their Children would be naturally Slaves too. If there were indeed no other Way of maintaining their Children, Parents might with themselves bring their future Progeny into Slavery: Because upon the very same Account, Parents may even sell their free-born Children.
2. But since this Right does naturally rise from mere Necessity,4 it is in no other Circumstances allowed, that Parents should inslave their Children; nor have Masters any other Right over the Children of their Slaves, than as they are to5 find them Victuals and other Necessaries of Life;See Leo Afer, l. 6. de Barca. and therefore, when the Children of Slaves have been a long Time maintained before they are capable of being serviceable toEdition: 1738; Page: [212] their Master, and their Work then can only answer the Expence of their present Edition: current; Page: [561] Less, l. 5. c. 5. Dub. 5. 1 Cor. vii. 21. Eph. vi. 5. Coloss. iii. 22. 1 Pet. ii. 18. Caus. 17. Qn. 4. C. 37, 38. See B. iii. Ch. 7. § 6. of this Treatise. Maintenance, such Children can never quit their Service, unless they pay what is reasonable for all their former Entertainment. If indeed the Master's Cruelty be extremely great, it is an Opinion highly probable, that those Slaves, even they whose Slavery was their own Choice, may run away, and in that Manner consult their Safety. For what the Apostles and antient Canons enjoin Slaves, of not leaving their Masters, is6 a general Maxim, and only opposed to the Error of those who rejected every Subjection, both private and publick, as a State inconsistent with the Liberty of Christians.
XXX. Several Sorts of Servitude.XXX. Besides that perfect and utter Slavery, of which we have just been speaking, there are also some imperfect Kinds of Servitude, and those are either for a certain Term of Time, or upon such and such Conditions, or only to do such and such particular Things. Such was the Service of1 Freedmen, who were yet obliged to do some Offices for their Patrons; of2 those who were to continue Slaves no longer than till such and such Edition: current; Page: [562] Articles were performed; of3 those who voluntarily became Slaves to their Creditors till their Debts were paid; of those who were sentenced by a Judge to be Slaves till their Debt was discharged; of4 Husbandmen, who belonged to the Lands given them; the seven Years Service among the Hebrews,Exod. xxi. 2. Lev. xxv. 40. and that Service which was to last till the Jubilee; that of the5 Penestae among the Thessalians; that which they call the Service of6 Mortmain; and lastly, that of7 hired Servants: All which Differences Edition: current; Page: [563] do depend either uponEdition: 1738; Page: [213] the Laws, or upon particular Agreements. Those who are born of one Parent who is free, and of another who is a Slave, seem naturally,8 for the Reason above-mentioned, to be subject only to an imperfect Servitude.
XXXI. What Power there is over a People who voluntarily become Subjects. B. i.XXXI. Publick Subjection is that of a whole Nation, who put themselves under the Power and Jurisdiction, either of one Person or of several, or even of another Nation. The Form of such a Subjection we gave you before, in an Instance of Capua. Such another is that of the Collatines,1 Do you to me, and to the Roman People, deliver yourselves up, you the Collatine People, your City, your Lands, your Water, your Frontiers, your Temples, your Goods, whatever you have sacred or civil? We do.Ch. 3. § 8. And I accept them. Alluding to which, Plautus,2 in his Amphitryon, says,
The Persians term this,3 Giving up Land and Water. But this is a perfect and entire Subjection; there are some other not so absolute, either in Regard to the Manner of enjoying the Sovereignty, or with Respect to the Extent of Power;B. i. Ch. 3. you may learn the several Degrees of them from what we have already said above.Edition: current; Page: [564]
XXXII. What Power over a Person who has forfeited his Liberty by some Crime.XXXII. There is also an involuntary Subjection arising from some Crime or other, and this happens when he1 who has deserved to lose his Liberty, is forced to submit himself to him who has a Right to punish him; and who it is that has such a Right of punishing we shall see by and by. And here not only particular Persons may be thus brought into a particular Subjection; as those at Rome, who did not appear when2 summoned to inlist themselves; and those3 who either gave no Account of their Estate, or gave a false one.4Ch. 20 of this Book. And afterwards, those Women who5 married another's Edition: current; Page: [565] Slave: But likewise a whole People6 may be brought into Subjection for a publick Crime; with this Difference only, that a Nation's Slavery is perpetual, for a Succession in the Members of it does no Ways hinder it from being one and the same People still; whereas that Slavery which isEdition: 1738; Page: [214] inflicted on particular Persons, extends no farther than their own selves, because7 Crimes are personal. But both Sorts of Servitude, either that which is publick or that which is private, may be perfect or imperfect, according to the Degree of the Fault and Punishment.
But of that Slavery, whether publick or private, that is founded on the voluntary Law of Nations, we shall hereafter have Occasion to speak, when we come to mention the Consequences and Effects of War.B. iii. Ch. 7.
I. What is required in the Giver to make the Alienation valid.I. 1. A Thing becomes ours from a1 derivative Acquisition, either by the Deed of another, or by Vertue of some Law. Since the Establishment of Property,2 Men, who are3 Masters of their own Goods, have by the Law of Nature a Power of disposing of, or transferring, all or any Part of their Effects to other Persons; for this is in the very Nature of Property; I mean of full and compleat Property; and therefore4 Aristotle says, Ὁρος τον̂ οἰκεɩ̂ον εἰ̂ναι, ὅταν ἐϕ' αὐτῷ ᾑ̑ ἀπαλλοτριω̂σαι, It is the Definition of Property, to have in one's Self the Power of Alienation.Soto, l. 4. qu. 5. art. 1. But there are two Things here to be observed; the one in the Giver, and the other in the Receiver. In the former it is required, that whatever he does in this Kind should appear by Words, or by some other open or external Sign, the mere internal Act of his own Will and Mind being no Ways sufficient; nor is such an Act,Ch. 4. of this Book, § 3. as we have observed elsewhere, agreeable to the Nature of human Society.Edition: current; Page: [567]
Less. l. 2. c. 3. Dub. 3.2. But that there should be a formal Delivery made, is what is5 required only by the Civil Law; which, because it is now received by many Nations, is improperly stiled the Law of Nations. So in some Places we find it customary forEdition: 1738; Page: [215] such an Alienation to be made, either6 before the People, or before some Magistrate, and that the Particulars there of be also7 recorded; all which Circumstances are most certainly owing to the Civil Law. And as for the Act of a Will, that is thus expressed by some external Sign, it is always to be supposed the Act of8 a Will governed and directed by Reason.
II. What in the Receiver.II. So also in the Receiver (without any Regard to the Civil Law) it is naturally required, that his Willingness to accept of what is given him do appear by some outward Sign or other; which Willingness, tho' it does generally succeed the Act of the other Party, may also be sometimes antecedent to it; as for Instance, if any Man shall request that such a Edition: current; Page: [568] Thing be given or granted him; for it is here to be supposed, that that Desire continues still, unless it appears that he has altered his Mind. What further relates as well to the transferring as the receiving of a Right,Ch. 11. of this Book. and how both these may be done, we shall hear by and by, in that Chapter where we treat of Promises; for in this Respect the Rules of Alienations, and those of Promises1 are the same, if we judge of them by the Law of Nature alone.
III. Crowns may be alienated sometimes by the King, sometimes by the People.III. Now as it is in other Things, so it is also in Sovereignty,1 it may be alienated by him who has a just Title to it; that is, as we shewed above, by a King, if the2 Crown be patrimonial; otherwise3 by the People, but not without the King's Consent; because he too has some Right here, like to that of an Usufructuary, which Right he ought not to be deprived of contrary to his Will. And this regards the whole Extent of Sovereignty.
B. i. Ch. 3. § 12.IV. But in transferring a Part of the State there is some thing else required;1 it must be done with the Consent of that Part also, which is to be thus transferred. For when Men form themselves into a State, they make together a Sort of perpetual2 and eternal Society,IV. The Government over one Part of the People cannot be alienated by the other, if that Part do not give their Consent. in respect of those Parts, Edition: current; Page: [569] which are called3 integral; from whence it follows, that these Parts are not so subjected to the Body, as the Limbs of a natural Body are, which entirely depend on the Life of that Body, and4 therefore may be justly cut off for the Service of it; for this Body that weEdition: 1738; Page: [216]are now speaking of, is of a very different Nature from that, it being formed by Compact and Agreement only, and therefore the Right that it has over its particular Members, is to be determined by the Intentions of those who originally framed it; which cannever be reasonably imagined to be such, astoinvest the Body with a Power to cut off its own Members whenever it pleases, and to subject them to the Dominion of another.
V. Nor can such a Part transfer the Government over its own Self, unless in Case of extreme Necessity.V. So, on the other Hand, no Part has a Right to separate from its Body,1 unless it plainly appears, that it is absolutely necessary for its own Preservation; Edition: current; Page: [570] for, as we have before observed, in all Matters of human Institution, Cases of extreme Necessity, by which all Things return to a mere State of Nature, seem to be excepted. St. Austin, De Civit. Dei, B. xviii. In almost all Nations this Voice of Nature has been loudly heard,2 that they should rather submit to their Conquerors, than suffer all the Ruin and Havock of War. And therefore in that Oath of the Greeks by which they engaged, with many Imprecations, to punish those amongst them,B. i. Ch. 4. § 7. and B. ii. Ch. 2. § 6. who should put themselves under the Dominion of the Persians, this Clause was subjoined, μὴ ἀναγκασθέντες,3 Unless compelled to it.
VI. The Reason of this Difference.VI. And from hence it is easy to comprehend, why in this Case a Part has a greater Right to preserve itself,1 than the Body has Power over the Part; becauseEdition: 1738; Page: [217] the Part makes Use of that Right it had before it Edition: current; Page: [571] entered into that Society; but it is quite otherwise with the Body. Nor let any Man pretend to tell me, that the Sovereign Power is lodged in the Body, as in its Subject, and may therefore be alienated by it, as a Thing that properly belongs to it.2 For if the Sovereignty resides in the Edition: current; Page: [572] Body, it is as in a Subject which it fills entirely, and without any Division into several Parts; in a Word, after the same Manner as the Soul is in perfect Bodies. Necessity itself, which reduces Things to the mere Right of Nature, cannot take Place here, because the Law of Nature gave indeed a Right to use Things; as for Instance, to eat or keep them, which are natural Acts,3 but not to alienate them. This Power was introduced by the Fact of Men, and therefore it is by that we must judge of its Extent.
VII. The Jurisdiction over a Place may be transferred.VII. But why the Jurisdiction over any particular Place; that is, any Part of a Territory, that lies, suppose, uninhabited and waste, may not be alienated by a free People, or by a King in Concurrence with his People, I see no Manner of Reason to dispute. Were indeed any Part of the Edition: current; Page: [573] People to be transferred, as they have a Freedom of Will, so have they likewise a Right to oppose such an Alienation; but the Territory, whether wholly, or in part, belongs in common and inseparably to the People; and consequently, is entirely at their Disposal. And certainly, if the Jurisdiction over any Part of the People cannot be alienated by the People themselves, much less can it be done by a King, who tho' he be vested with the full Sovereignty, yet he does not possess it with a full Right of Property; a Distinction we made above.B. i. Ch. 3. § 11, 12.
VIII. The Opinion, that a Prince may for Advantage, or out of Necessity, make over some Parts of his Kingdom, refuted. Belluga in pr. spec. in rub. 8. p. 3. & 4. Roch. de Curte de Consuet. q. 5. col. 6. tom. 1. & alii allegati a Vasq. l. 1. c. 4.VIII. For which Reason we can never agree with those Lawyers, who to the general Rule of not alienating the Parts of a State, subjoin these two Exceptions of Necessity and the publick Good; unless we understand them in this Sense, that if the Alienation be advantageous to the Part as well as to the Body, we may from their Silence, tho' of no long Time, conclude that both People, and the PartEdition: 1738; Page: [218] alienated, agree to it, and much more so, if there appears besides any Necessity for such a Separation; but if either of them shall openly declare the contrary, we must look upon such an Alienation to be utterly null and void, unless, as we before observed, the Part should be compelled to separate from the Body.
IX. Under the Title of Alienation, is justly comprised an Infeoffment, or granting a Dominion in Fee, under the Penalty of Forfeiture, in Case of Felony, or for Want of Issue; for this is a Sort of conditional Alienation. Wherefore we find, that as Alienations, so likewise some1 Infeodations of Kingdoms, which Princes have made without the People's Approbation, have by many of them been considered as void.IX. Infeoffment and Mortgaging are a Sort of Alienation. Smith, de Rep. Ang. l. 1. c. 9. Buch in Baliol. Frossar. l. 1. c. 214, & 246. Monstrel. Hist. C. 22, 5. Guic. l. 16. Now the People are understood to give their Approbation, either when they assemble in a whole Body for that Purpose, as was formerly the Custom with the Gauls and Germans, or when they signify their Consent by particular Deputies commissioned thereunto, and invested with a sufficient Edition: current; Page: [574] Power from the integral Parts of the State;2 for whatever we do by another, is equally the same as done by ourselves. Nor can any Part of the Dominion be mortgaged, except it be done by the like Agreement, not only for this Reason, because a real Alienation usually follows such an Engagement, but because a King is bound to the People, to exercise the sovereign Power by himself, and the People are bound to each of their Parts, to preserve the Administration of the Government entire, which indeed was the Motive of their first entering into a civil Society.X. The People's Consent and Approbation, either particularly expressed, or founded on Custom, is required to the transferring even of Jurisdictions and Employments in the State that are not Sovereign.
X. But as for Jurisdictions that are1 not Sovereign, I see no Reason why the People may not grant them, even for an hereditary and perpetual Right, since it no Ways affects the whole Body, nor is any Ways destructive of the Sovereignty itself; but the King cannot do so without their Consent, if we regard natural Right only; because a temporal Right, such as is that of Kings elective, and of those who owe to the Law their Succession to the Crown, can produce nothing but2 temporal Effects. Yet Edition: current; Page: [575] might the People, as well by their express Consent, as by a tacit Consent, founded on Custom, (and this is what we see does now almost every where prevail) give up this Right to their Princes. And we frequently findEdition: 1738; Page: [219] in History, that this was a Right which the Kings of the Medes and Persians enjoyed, who gave away not only3 Towns, but even whole Countries, to be held for ever.Cravet. Cons. 894. num. 2. Zoańnet. de Rom. Imp. n. 162.
XI. Nor can1 Kings alienate, either in Whole or in Part, the People's2 Demain, the Revenue whereof is appropriated to the Service of the Edition: current; Page: [576] State, or to the Maintenance and Support of the Royal Dignity.3 For they have no more than a Tenant's Right to it. Nor do I at all allow the Exception,XI. Princes cannot alienate the People's Demain. Alberic. in C. Intellecto, de Jure Jur. Bartol. in Leg. 3. § 4. Dig. Quod vi, &c. Cors. in Tract de excell. Reg. q. 4. Loazes, all. a Vasq Nata cons. 367. Bonif. Rug. cons. 49. n. 43. If the Thing be but of little Value, because I can have no Right to make over the smallest Part of what is none of mine at all. But the People indeed, when they know the Affair, and are silent in it, may much more easily be supposed to consent in smaller Matters, than in those of greater Moment. And in this Sense too, what we just now observed, of alienating any of the Parts of a State, in Cases of Necessity, or for the publick Advantage, may be applied to what concerns this Revenue; and the rather, because the Thing we are speaking of here, is of far less Consideration. For the publick Demain is established on Account of the Sovereignty, and consequently, cannot have more Privilege.
XII. But here lies the Mistake of many, they confound the Revenue and Profits of the Demain, with the Demain itself. Thus, for Instance, the Right of Alluvion is usually in the Demain; but the Pieces of the Land which the River leaves dry in retiring are in the Revenue.XII. The Revenue of the Demain, or Patrimony, must be distinguished from the Demain, or Patrimony, itself. The Power of levying Taxes is in the Demain, the Money arising from thence in the Revenue: The Right of Confiscation in the Demain, the Lands thus confiscated in the Revenue.Edition: current; Page: [577]
XIII. But after all, Princes, who have a full and absolute Sovereignty, that is, who have a Power upon a lawful Occasion, and when Reasons of State require to levy new Subsidies, may, upon such an Occasion, mortgage any part of the publick Patrimony. For as Subjects are obliged to pay such Subsidies as are laid upon them, upon such Reasons of State, so are they no less obliged to redeem what is upon such Reasons mortgaged:XIII. How far, and why some Part of the People's Patrimony may be mortgaged by the Prince. Because that very Redemption is no more than a Sort of Payment of Subsidies. And the Patrimony of the People is engaged to the Prince, as a security for the Payment of the Debts of the People. And whatsoever is thus pawned to me,1 I have also a Right to pawn again. What we have hitherto said of this Matter, will only hold good, provided there be no fundamental Law of the State, which shall either enlarge or confine the Power of Prince or People.
XIV. That a Will or Testament is a Kind of Alienation, and of natural Right. Arist. Pol. l. 11. c. 7.XIV. 1. And here you would do well to observe, that when we are treating of an Alienation, we design under that Head to include also a Will or Testament. For altho' a Will, as all other Acts, may receive its Form from the Civil Law, yet is it in Substance and Reality very like the Right of Property, and, that being onceEdition: 1738; Page: [220] established, belongs to the Right of Nature; for I may give away my Estate by Will, not only absolutely, but on certain Conditions; and that not only irrevocably, and for ever, but with a Power too of recalling it, reserving to myself still the Possession of it, and the full Liberty of enjoying the same.1 For a Will is the making over one's Effects in Case of Death, 'till then to be reversed or altered at Pleasure; and in the mean Time reserving the whole Right of Possession and Enjoyment. Plutarch very well saw this, and therefore when he had related, that Solon allowed his Citizens the Privilege of making Wills, he adds, Τὰ χρήματα, κτήματα τω̂ν ἐχόντων ἐποίησεν,2 He thereby made what they had properly their own. And Quintilian, the Father, in a Declamation of his,3 Our very Estates would seem burthensome, Edition: current; Page: [578] if we had not a full Liberty to dispose of them; and if, after having had a full Power to dispose of them during our Life, we should be deprived of it when we die. It was by Vertue of this natural Right, that Abraham, in Case he should die without Issue, was4 to have left all his Effects to Eliezer, as is plain from the Passage, Gen. xv. 2.
2. But that Foreigners have not in some Places a Power to dispose of their Effects by Will, is not from the Law of Nations, but from the Civil Law of such or such a State; and I am much mistaken, if it does not proceed from those Ages when Foreigners5 were looked upon as so many Enemies; and therefore, among the more civilized Part of Mankind,6 it hath been justly abolished and laid aside.
I. Some Civil Laws are unjust, and therefore do not transfer a Property; such are those that confiscate the Goods of shipwrecked People.I. Now that derivative1 Acquisition, or Alienation, which is owing to some Law, is either from the Law of Nature, or the voluntary Law of Nations, or from the Civil Law. We are not treating of Civil Law here, for that would be an endless Task, neither are the most considerable Disputes in War to be determined by it: But we shall only observe, that there are some of the CivilEdition: 1738; Page: [221] Laws2 that are plainly unjust; as those by which3 all shipwrecked Goods are confiscated. For to take away a Man's Edition: current; Page: [580] Property, without any apparent Cause, is manifest Injustice. Very well then has Euripides said in his Helena,
4Being Shipwrecked, and a Stranger, I am one of those who ought not to be plundered. For what Right can the Prince's Treasury have (they are5 Constantine's own Words) in the Calamity of any Man, that it should pursue its Advantage in so unfortunate an Affair? And Dion Prusaeensis, in his seventeenth Oration, speaking of a Shipwreck, Μὴ γὰρ εἴη ποτὲ, ὠ̑ ζεν̂, &c. GOD forbid that I should gain by Mens Misfortunes.Edition: current; Page: [581]
II. By the Law of Nature a Man gains a just Right to that which he has taken from another, in Satisfaction for his own Debt; and when this holds good. Sylv. in Verb. Bellum, p. 2.II. 1. By the Law of Nature; that is, by a Law which results from the very Essence and Virtue of Property, an Alienation is made two Ways, by Compensation, or by Succession. Alienation by1 Compensation is effected, when2 for any Thing which belongs to me, or which is due to me, if I cannot get the very Thing itself,3 I take some other Thing of an equal Value from him who will not re-Edition: 1738; Page: [222]store what is mine, or pay what he owes me. For expletive Justice, when it cannot obtain precisely what one has a Right to demand, seeks the Equivalent, which by moral Estimation is considered as the same Thing.q. 13. And that the Property then passes from the Debtor to the Creditor is proved by the necessary Connexion of this Conveyance with a lawful End; which is the best Argument in moral Things. For in the Case under Consideration, one cannot attain to the Enjoyment of his Right, unless he becomes Proprietor Edition: current; Page: [582] of what he seizes: The bare Possession of a Thing being useless, without the Power to dispose of it as one pleases.4 A very antient Example of this we find in the History of Diodorus [Lib. 4.] where Hesioneus seized Ixion's Horses, for what, according to Promise, he ought in Justice to have performed to his Daughter.
2. We know that the5 Civil Laws do not allow any Man to do himself Justice; and he that shall take any Thing by Violence from another, altho' it be in Reality his Due, it shall be accounted no less than a Sort of6 Robbery; nay, and in many Places7 he shall by that Means lose his Debt. And tho' the Civil Law did not directly forbid this, yet,B. i. Ch. 3. § 2. from the very Design of erecting Courts of Justice, it may be easily presumed to be illegal.Code, l. 10. tit. 31. De Decur. &c. leg. 54. & l. 1. tit 3. de Ep. & Cler. But where there are no Courts at all to appeal to, it is there we must have Recourse to the Law of Nature, of which above; nay, tho' the Exercise of Justice should but for the present be interrupted,leg. 12. & D. we might certainly seize on what we find, if the Debtor were running away,D. in leg. 39. § 1. in fin. Dig. ad Leg. Aquil. Bart. intr. De Repres. q. 59. and there should be no other Method of recovering our own: Yet so, that we can have no Property therein, till such Time as a formal Judgment hath passed in our Favour, as is usual in the Case of Reprisals, of which here after. But if the Right be certain, and it be also morally certain, that the Edition: current; Page: [583] Law, for want of good Proof, will not give a Man Satisfaction;8 in such a Circumstance,B. iii. Ch. 2. §4,5. the Obligation of having Recourse to the common Methods of Justice ceases, and he returns to the Right he had before the Establishment of Tribunals: And this, I think, is the best founded Opinion.
III. How the Succession to the Estate of him who dies without a Will does originally and naturally arise.III.1 Succession to the Estate of him who dies intestate, Property being once introduced, and independently of all Civil Laws, is founded on2 a natural Conjecture of the Will of the Deceased. For since the Nature and Power of Pro-Edition: 1738; Page: [223]perty is such, that the Owner may transfer it to another Person at his Death, and yet be in Possession of the same during Life, as we said before; it is not to be supposed, that because a Man dies without a Will, he designed his Estate for any Person who should first lay Claim to it, or get Possession of it,Soto, De Just. q. 3. art. 2. and therefore it follows, that such Effects should go to him, to whom there is the greatest Probability that the Deceased, had he made a Will, would certainly have bequeathed them.3 To know the Intentions of the Deceased, says the Edition: current; Page: [584] younger Pliny, stands fora Law.Cajet. d. q. 66. Ch. 6. § 14. and last. But in Cases that are doubtful, it is always presumed that a Man would do that which is the most fair and honest. And among Things fair and honest, we must rank in the first Place, that which is strictly due; and afterwards that which has acertain Suitableness to the Character or Person of one, tho' not strictly due.
IV. Whether any of the Parents Effects are by the Right of Nature their Children's Due. This is explained by a Distinction.IV. 1. It is a Thing disputed amongsta Civilians, whether Parents are obliged to maintain their Children? Now there are some who will by no Means allow, that there is any such direct Obligation; but yet, at the same Time, think that it is agreeable to Reason that it should be so. It is our Opinion entirely, that we ought to distinguish the Word Obligation, which is sometimes taken strictly, for that which is founded on expletive Justice; sometimes in a larger Sense, for that which cannot be omitted without offending against the Rules of Decorum, tho' this Decorum proceeds from some other Source than rigorous Right, properly so called. Now the Obligation we are speaking of here,1 is to be taken Edition: current; Page: [585] in this larger Sense, except there should be some human Law that lays Parents under a stricter Obligation. And it is thus that I understand what Valerius Maximus has advanced, when he says, that2 Our Parents, by maintaining us, have laid an Obligation upon us, that we do the same by their Grand-Children. And Plutarch, in his most elegant Treatise of the Affection to one's Children, Οἱ παὶδες ὡς ὀϕείλημα τὴν κλη̂ρον ἐκδεχόμενοι,3 Our Sons expect our Estates after us,4 as a Debt that we oweEdition: 1738; Page: [224] them. For, as Aristotle has it, whoever gives the Form, gives also what is necessary for producing that Form; and therefore, whoever is the Cause of a Man's Being, ought, as much as in him lies, to supply him with what is necessary for human Life; that is, both natural and social, for Man is born for Society.
2. And for this Reason it is, that other Animals too do, by meer natural Instinct, supply their young Ones with such Necessaries, as are convenient for their Subsistence. Hence Apollonius Tyanaeus, what was said by Euripides,5Edition: current; Page: [586]
All Men look on their Children as their own Life. Has thus altered,
All Animals look on their Off-spring as their own Life. And this innate Affection he proves by several Arguments, which may be seen in Philostratus, B. vii. Ch. 7. and 8. To which Passage that in Oppian, in his Cynegetica, Lib. iii. (ver. 107, &c.) and Halieutica, Lib. i. (ver. 646, &c. 702.) does perfectly agree. And the same Euripides, in his Tragedy of Dictys, says, that This one Law is what all Men have in common among themselves, and with all other Animals. Hence it is, that the antient Civilians refer the Education of Children6 to the Law of Nature, whereof the very Beasts have some Sense from a natural Impression, and which is prescribed to us by Reason.7 A certain natural Incentive, as Justinian expresses it; that is, the Στοργὴ, a natural Tenderness and Affection urges Parents to provide for the Maintenance and Education of their Children. And in another Place,8 Nature has obliged the Father to maintain either Son or Daughter. So Diodorus Siculus, Ἀγαθὴ γὰρ ἡ ϕύσις, &c. Nature teaches all Animals to preserve themselves and their Off-spring, that by this Means their Race may be perpetuated for ever. So by Quintilian a Son is introduced delivering himself thus, I claim my Part by the Law of Nations. And Sallust called a Will by which a Son is disinherited, Impious and unjust. And because this is a natural Duty, therefore is the Mother Edition: current; Page: [587] obliged to provide for9 such Children which she has got by common Conversation with several Men.
3. And tho' the Roman Laws ordered nothing to be left for such Children as were10 illegitimate; and that by Solon's11 Laws it was provided, that a Man should not be obliged to leave any Thing to his natural Issue; yet the Canonsb ofEdition: 1738; Page: [225] the Christian Church have very much softened this Rigour,Decretal. Lib. IV. Tit. VII. De eo qui duxit in Matrimonium quam polluit per adulterium, Cap. V. in fin. by instructing us, that our Children, however begotten, should be a Part of our Care; and that in Cases of Necessity, we ought to leave them whatsoever is necessary for the Support of their Lives. Thus we are to understand the common Maxim, that human Laws cannot deprive Children of their Portion. For that is only true, so far as the Portion includes a Part of the Estate necessary for their Maintenance. Whatever is beyond that, may be taken from Children without Prejudice to the Law of Nature.
4. Neither are we obliged to maintain our Children of the first Degree only, but those of the second too; and even beyond this, if the Case be so: This is what Justinian12 informs us of, when he declares, that for Edition: current; Page: [588] Nature's Sake we ought to provide not only for our Sons, but for those who come after them, and this extends to such also who are descended from us by our Daughters,13 if they have no other Subsistence.
V. In a Succession Children are preferred to the Father and Mother of the Deceased, and why?V. 1. Children too ought to support their Parents; a Duty not only prescribed by the Laws but also taught by a common Proverb,1 Ἀντιπελαργεɩ̂ν, Do as the Storks do, return the Kindness you yourselves have received; and we find that Solon2 is highly applauded for setting a Mark of Infamy upon such Persons as refused to do it. But the Practice of this Duty is not so frequently necessary as that which we have instanced concerning Children: For Children when they come into the World, bring nothing with them for their Maintenance and Support; and they have a longer Time to live than their Parents; and therefore, as Honour and Obedience are due to Parents, and not to Children; so are Education and Sustenance rather due to Children than to Parents: And in this Sense it is that I understand that of Lucian, καὶ τοί γε ἡ ϕύσις, &c.3 Nature injoins Parents to love their Children, more indispensibly and more strongly, than Children to love their Parents. And that of Aristotle, Μα̂λλον συνωκείωται, &c.4 That which begets is more affectionate towards that which is begotten, than that which is begotten is towards that which begets it; for we look on that as our own to which we have given Being.
2. Hence it is, that even without the Assistance of the Civil Law, the first Succession to one's Effects devolves on the Children, because that Parents are supposed to be willing not only to supply them, as being Parts of themselves, with Necessaries, but also to make such a plentiful Provision for them, as shall enable them to live agreeably and handsomely; Edition: current; Page: [589] and especially at a Time when they can no longer enjoy their Estates themselves. Natural Reason, says Paulus5 the Civilian, is as it were a silent Law, that entitles Children to the Inheritance of their Parents, calling them to that Succession as their Right and Due. Papinian, another Civilian,6 maintains, that Parents cannot claim such a Right to their Children's Estates, as Children can to the Estates of their Parents; for the Estates of Children come to Parents, as if it were to comfort them in their Affliction; whereas Children are called to inherit the Estates of Parents, not only by Nature, but also by the usual Desire of Parents. That is, the Estate goes to the Children, partly from an express Obligation in Nature, and partly from the natural Conjecture, that Parents would have their ownEdition: 1738; Page: [226] Children to be as handsomely provided for as possible.7 He did so out of Regard to his own Blood, says Valerius Maximus, speaking of Q. Hortensius, who tho' he was not well satisfied with his Son's Conduct, had yet declared him his Heir. And to this Purpose is that of St. Paul the Apostle, οὐ γὰρ ὀϕείλει, &c. Children ought not to lay up for their Parents, but the Parents for the Children.2 Cor. xii. 14.
VI. The Original of that Succession called a Representation where one Person comes in the Room of another who was deceased before.VI. And now, because it is usual for the Father and Mother to take Care of their Children, therefore while they live, the Grandfather or Grandmother are thought to be under no Obligation of providing for them: Yet if they, or either of them die, it is then but reasonable, that the Grandfather or Grandmother should, in the Stead of their deceased Son or Daughter, take Care of, and provide for, their Grand-sons or Grand-daughters: And this Duty does also, by a Parity of Reason, extend to Parents that are still farther removed. And hence has that Right its Original, Edition: current; Page: [590] which entitles the1 Grandchild to succeed in the Son's Room,2 as Ulpian expresses it. Modestinus termed it, τὴν τον̂ πατρὶς, &c.* To fill up the Place of the dead Father. And Justinian, τὴν πατρώαν ὑπεισιέναι τάξιν,** To come into the Father's Room.*** Isaeus, in his Oration, where he speaks of Philoctemon's Estate, calls this ἐπανιέναι, To enter upon again. And Philo the Jew, Υιωνοὶ γὰρ, &c.3 For the Grandchildren, their Fathers being dead, supply the Place of Sons to their Grandfather. And this Kind of Vice-Succession,4 our modern Civilians are pleased to call a Representation, where the Children represent the Persons of their Parents. And that this was in Use amongst the Hebrews, is sufficiently Edition: current; Page: [591] proved from the Division of the5 promised Land to Jacob's Sons. As my Son and my Daughter are the nearest related to me, so next to them are those who are born of them, as6 Demosthenes says, in his Oration against Macartatus.
VII. Of Abdication and Disherison.VII. What we have hitherto said of the Right of Succession, by making a Conjecture at the Will of the Intestate, holds good, unless there appear some certain and evident Signs to the contrary; amongst which Signs was that which the Greeks styl'd an1 Abdication, and the Romans a Disherison;2 yet in this Case, if the Person so disinherited has not by his Crimes merited Death; he ought, for the Reasons above-mentioned, to have a sufficient Maintenance allowed him.Edition: 1738; Page: [227]
VIII. Of the Right of natural or illegitimate Children.VIII. 1. Another Sign, which forms an Exception to the general Rule, is, when there is not a sufficient Proof, that he who passes for the Son of the Deceased is really so. Indeed, as to Facts we cannot have Demonstration; but that which is usually done in the Sight of Men, is considered as certain in its Kind, on Account of the Testimony they give of it. In this Sense it is said, that it is certain such a Woman is Mother to such a Child, because there are some Persons of both Sexes to be found, that assisted at its Birth, and were Witnesses of its Education. But it is impossible to have such an Assurance of the Father. And this1 Homer intimates, when he says,Edition: current; Page: [592]
No Man is certain of whom he is descended. And2 Menander after him,
No Man can tell himself how he was born. And again in another Place,*
A Mother loves her Children better than the Father, because she knows they are hers, but he only thinks they are his. And therefore Recourse was to be had to some Means whereby the Father of every Child might be probably discovered. And this Means was Marriage, taken according to the mere Law of Nature, for a Society that places the Woman under the Care and Custody of the Man. But indeed if it does in any other Manner appear, that such a Man is the Father of such a Child; or if the Father be persuaded of it himself; that Child shall then as justly inherit, according to natural Right, as any other whatever; and why not, when we see that even Strangers, who had been openly reputed as Sons, or adopted, as they are called,3 inherit by Vertue of a Presumption of the Deceased's Will?
2. But our natural Issue too, tho' distinguished by Law from such as are legitimate,
4 They are not inferior to our legitimate Children; but the Law renders their Condition less advantageous, as said Euripides) may however be adopted, unless some particular Law do prohibit it. And this was granted formerly by the Roman Law of5 Anastasius; but afterwards, in Favour of lawful Marriage, the Means of making them equal to such as were legitimate, was rendered more difficult, by obliging the Fathers either to marry the Mother, or to6 offer them to be MembersEdition: 1738; Page: [228] of Town-Councils. We have an Instance of this antient Way of adopting natural Children, in the Case of Jacob's Sons, who by their Father were put upon an equal Foot with the Children of the free Women, and came in for an equal Share of his Estate.
3. On the other Hand, it may sometimes so happen, that not only by Vertue of a Law, but by some particular Agreement, such Children as are born in lawful Wedlock, shall have no more than a Maintenance, [[7]] or at least be excluded from the Bulk of the Estate. Now a Marriage Edition: current; Page: [594] that was contracted in this Manner, notwithstanding it was with a free Woman, was what the Hebrews called Concubinage; such as was that of Abraham with Keturah,Gen. xxv. 6. whose Children, as also Ishmael, the Son of Agar his Bond-maid, received some few Presents or Legacies for their Portions, but came in for no Share at all of the paternal Estate. Such a Sort of Marriage is that which is called a8 Morgengabic Marriage: Not very different from which are those second Marriages in Brabant, where the Children of the first Marriage acquire the Property of the real Estate9 that was in Being at the Dissolution of the former Marriage.10
IX. Upon Failure of Issue, and where there is no Will, nor express Law, the antient Estate and Effects must return to them from whom they at first came, or to their Posterity.IX. 1. But where there are no Children, it is not so easy to determine on whom a Man's Estate should naturally devolve; neither do the Laws vary in any one Point so much as they do in this particular. All which Difference Edition: current; Page: [595] may, notwithstanding, be for the most Part referred to these two Heads: The former whereof respects the nearest Degree of Blood, the latter will have the Effects return from whence they originally came, and this is usually signified, by The Father's Effects to the Father's Relations, the Mother's to the Mother's. And here, in my Opinion, we should distinguish betwixt1 a paternal Estate, that comes from Father to Son, (as was usually expressed in the Form that cut off the extravagant Son from the Administration of his Estate) and2 one that is newly acquired. In Regard to theEdition: 1738; Page: [229] former, this Passage of Plato may take Place, Ἐγὼ ον̂̔ν νομοθέτης, &c.3 I who am a Legislator, do pronounce, that neither your Persons nor your Patrimony are properly yours, but belong to all the whole Race of you, as well that which has been, as that which is still to come. And therefore Plato is for having Κλήρον πατρῷον, The paternal Estate, secured4 to that Family from whence it came; which I would by no Means have so construed, as that a Man has not a natural Right of disposing by Will, of such Things as came to him by his Ancestors. (For oftentimes one's5 Friends are in such Necessity, that it is not only commendable, but even a Duty, to leave them an Estate.) But that it may appear what in doubtful Cases we should most naturally suppose to be the Design and Intention of the Intestate; for I grant and suppose, that Edition: current; Page: [596] he, whose Design and Intention we want to find out, was absolute Master of his Estate, so that he could have disposed of it as he thought fit.
2. But since a Man when he is once dead, can no longer retain any Right or Property in what he had, and since we take it for granted, that he would be unwilling to lose the Opportunity of doing the Favour that is in his Power, let us now see what is the most natural Order by which we could suppose such Favours might be conferred. Aristotle well observes, εὐεργέτῃ ἀνταποδοτέον, &c.6 We should rather return a Kindness to our Benefactor, than oblige a Friend with a new one. And Cicero says,7 No Duty is more necessary than Gratitude. And again, Whereas there are two Kinds of Liberality, the one that enclines us to do Good, and the other to require it; it is in our own Power to do a Piece of Service or not to do it; but an honest Man can never be allowed not to requite a good Turn, whenever he can, without injuring any other Person. So St. Ambrose,8 The Value and Esteem which you have for your Benefactor, ought to be greater than that for any other Person. And presently after, For what is so contrary to a Man's known Duty, as not to repay what he has received? Now one may be grateful either to the Living, or, as Lysias9 has shewn, in his Funeral Oration, to10 the Dead, when we do kind Offices to their Children, who Edition: current; Page: [597] are naturally a Part of their Parents, and to whom, were their Parents living, they would earnestly wish we did Good, preferably to any other.
3. The Roman Lawyers, whose Decisions form the Body of the Civil Law of Justinian, and who adhered closely to the Rules of Equity, have followed the Principles of natural Equity, which I have now laid down in deciding Disputes between whole and half Brothers; Brothers by the same, both Father and Mother;Edition: 1738; Page: [230] Brothers by the same Father, but different Mothers; Brothers by the same Mother only; and also in somea other Questions. Ἀδελϕὸι ἀλλήλους ϕιλον̂σιν, &c. Brothers, says Aristotle,11 as they are born of the same Parents, do by Consequence love one another, for the same Birth being common to both, makes them as it were the same Persons. So Valerius Maximus,12 As the receiving of many and great Favours from him whom we love, is the first Tye of Friendship; so the receiving from one and the same Person such Favours, jointly with others, is the second. And therefore, By the common Right of Nations (as Justin13 says) one Brother should succeed another.
4. But in Case neither that Person from whom such and such Effects have been more immediately received, is to be found, nor any of his Children; our Gratitude then must extend to those who have next to Edition: current; Page: [598] him the justest Title to it; for Instance, to the Father of the Degree above, (the Grandfather) and to his Children; especially since by this Means we still keep in the same Family, not only of him whose Inheritance we are speaking of, but also of him from whom such and such Effects were more immediately derived; so the same Aristotle observes, Ἀνεψx03B9;οὶ δὲ, &c.14 Cousin-Germans, and other Relations are united together, in so far as they are descended of those, who are, as it were, the same Persons. And there is between them more or less Union as they are more or less remote from the common Stock.
X. What has been newly purchased goes to the next Relations.X. 1. But as for such Effects as are newly acquired, called by Plato, Περίοντα τον̂ κλήρου,1 The Surplus of a Patrimony, as they lay no Obligation of Gratitude upon us, so all we have to do in this Case, is to see that the Succession be made over to him whom the Deceased is supposed to have the greatest Affection for; and that is, as it is reasonable to imagine,2 the Person who is nearest related to him. And therefore Isaeus3 says, that it was customary with the Grecians, Τοɩ̂ς ἐγγυτάτω, &c. For the Effects of the Deceased to pass to the next of Kin; and then adds, Τί ἄν, τιδικαιότερον, &c. Why not, for what is more equitable than that the Estate Edition: current; Page: [599] of one Relation should pass to another? There is a Passage to the same Purpose in Aristotle, in his Book to Alexander, Ch. xi.4 Nothing can be more, says Cicero,5 for the Support and Preservation of Society, than to be the most kind to him who is the nearest related to us. And in another Place6 he ranks immediately after Children, those Relations with whom one maintains a good Understanding; and so does Tacitus,7 Nature itself would have every Man's Children and Relations the dearest to him; and Cicero in another Passage, speaking of Relations, says,8 Whatever is necessary and convenient for the Support of Life, is in a more particular Manner their Due from us; their Due, not according to expletive or rigorous Justice,Edition: 1738; Page: [231] but Κατ' ἀξίαν, By Way of Decency and Fitness; and again,9 when he had mentioned that Love we bear to our Relations, he presently adds, From this Affection are derived the Testaments and Recommendations of dying Men; and10 that it is abundantly more reasonable, that we give and bequeath our Effects to Relations than Strangers. And St. Ambrose too,11 It is a Liberality justly commendable, not to neglect those of your own Blood and Family.
2. Now the Succession to the Estate of a Person intestate, of which we are now treating, is nothing else than a tacit Will, founded on just Presumptions of the Will of the Deceased. So Quintilian12 the Elder, in one of his Declamations, Next to such Persons as are mentioned in a Will, the nearest Relations have the justest Title; as they also have if the Deceased died intestate, or left no Issue. And this not merely because it ought in Justice to be so, but because such Effects being as it were deserted, and without an Owner, there is none nearer to take Possession of them. What Edition: current; Page: [600] we have said of later Purchases, that they should naturally go to the next Relations, will hold equally good in those also that come by Inheritance, in Case that neither the Persons from whence they came, nor any of their Children are then in Being; because then Gratitude cannot serve as a Foundation to the Succession.
XI. A Variety of Laws about Succession.XI. 1. But what we have here advanced, tho' highly agreeable to a natural Conjecture, yet is it not of any absolute Necessity from the Law of Nature; and therefore very frequently altered, according to the various Humours of People, either by Compacts, by Laws, or by Customs. In certain Degrees they admit the Right of Representation,1 in other Degrees they do not; in some Places they consider from whence2 the Estates came, and in others they mind no such Thing; in some Countries the Eldest has a larger Share than the Younger, as among3 the antient Jews, and in others the Children have all alike; with some, Preference is shewn to the Relations on the Father's Side; with others those of the Mother's Side are upon a Level with them; some have a particular Regard to the Sex, and others have none at all; with some the nearest Degrees of Relation only are allowed of, with others the most remote ones are not excluded. But to enter into a Detail of all these, as it would be extreamly tedious, so would it be far from agreeable to our present Purpose.
2. It is proper, however, to observe here, that when there is not a clearer and more certain Evidence of the Intention of the Deceased, every one Edition: current; Page: [601] is supposed to have designed that the Succession to his Estate should be regulated by the Laws of the Country; and that not only because of the Power that Sovereigns have to make or authorize such Regulations, but even from a4 Conjecture of the Will of the Deceased; which Conjecture also is in Force, in Regard to those Persons in whom the supreme Power is lodged. For it is but reasonable to believe, that Sovereigns5Edition: 1738; Page: [232]have thought it very just to follow, in what concerns their own Affairs, the Dispositions or Laws they themselves have made, or the Customs they have approved; such Affairs I mean, in which they can be no Ways injured.
XII. What Kind of Succession there is in patrimonial Crowns. B. i. Ch. 3. § 11.XII. But as to what relates to the Succession of Crowns we must distinguish betwixt such as are possessed with a full Right of Property, and as a Patrimony; and such as are enjoyed in a certain Manner, determined by the Consent of the People; a Distinction which we have treated of Edition: current; Page: [602] before. Patrimonial Kingdoms may be1 divided even between the Males and Females,2 as we find it was usual formerly in Aegypt and Great Britain.
Says3 Lucan: And4 Tacitus of the Britons, Nor do they make any Difference of Sex in their Government. And adopted Sons are no less capable of succeeding than real ones are, by a Presumption that it was the Desire of the deceased Prince that it should be so; thus did Hyllus,Strabo, l. 9. the adopted Son of Hercules, succeed Aepalius the King of Locris. So Pyrrhus,5 having Edition: current; Page: [603] no lawful Issue, declared Molossus,6 his natural Son, his Successor to the Crown of Epirus; so King Atheas promisedEdition: 1738; Page: [233] to adopt Philip, in Order to succeed him in Scythia; and so Jugurtha,Sal. Bell. Jug. tho' a Bastard, succeeded in the Kingdom of Numidia by Adoption. And we reada too, that Adoption was received in those States which were conquered by the Goths and Lombards. Nay, the Crown shall descend to the last Prince's Relations, tho' not at all of the Blood of the first King, if such an Order of Succession be established in those Places; thus does Mithridates, in Justin, declare, that the domestick Princes of Paphlagonia being all dead,7 the Right of Succession did belong to his Father.
XIII. If such Kingdoms are not to be divided the Eldest is to be preferred.XIII. But if it be expressly said, that a Kingdom shall not be divided, and at the same it be no ways declared to whom it shall go,1 the eldest Edition: current; Page: [604] then, whether Son or Daughter, shall undoubtedly enjoy it. We read in the Talmud Title of Kings, He that has the best Claim to a private Inheritance, has also the best Title to the Crown; and therefore, in this Case, the eldest Son is preferable to the younger. Νομιζόμενον πρὸς, &c. says Herodotus,2 It is the Custom of all Nations for the eldest Son to sit upon the Throne. And in other Places he frequently terms this, Νόμον, The Law and Practice of Kingdoms. So Livy3 speaking of two Brothers, of the Country of the Allobroges, that contended for the Crown, says, that the younger had least Right but most Power. In Trogus Pompeius,4 Artabazanes, who was the eldest, laid Claim to the Crown by a Prerogative of Age; a Prerogative which Birth and Nature give amongst all Nations; and this he elsewhere5 stiles The Law of Nations: As6 Livy, who terms it the Order of Age and Nature; but this is only to be understood where nothing to the contrary has been ordered by the Father, as was done bya Ptolomy in the same Trogus. But whoever comes to a Crown in this Manner, is obliged, if, and as far as it can be done,7 to give those who would be his Co-heirs, if the Kingdom were divided, the Value of what their Portion would amount to.
XIV. In Case of any Dispute, the Kingdom that is no otherwise hereditary than by the People's Consent must not be divided.XIV. But as for those Kingdoms which are no otherwise hereditary than by the free Consent of the People, the Succession is in this Case to be settled in that Manner only, as may be presumed the People shall most readily agree to; now it is supposed that the People will always consent to whatever shall appear to be for the publick Advantage. And hence our first Inference is, that a Kingdom should always remain undivided, Edition: current; Page: [605] 1 unless the Laws or Custom of the Place be against it;Edition: 1738; Page: [234] (as at Thebes in Baeotia, the Government was divided amongst the male Heirs, as appears by the History2 of Amphion and Zethus, and also by that of the Sons of Oedipus; and the antient Attica3 was parted among the Children of Pandion; and the Country about Rhodes between the Brothers, Camirus, Jalysus, and Lindus, and the Kingdom of Argos4 among Perseus's Edition: current; Page: [606] four Sons,) for, that it should remain entire, is certainly more expedient, not only for the Preservation and Security of the Kingdom, but also the maintaining the Concord and Unanimity of the Subjects.Cap. 1. n. 1, 2. Accordingly it is observed by Justin, B. xxi. It was their Opinion that the Government would be more secure under the Dominion of one Man, than if it were parcelled out among all the Sons into several Shares.
XV. Such Crowns continue hereditary no longer than there are Descendents of the first Prince living.XV. Another Inference is, that the Succession should be continued in the first King's Family; for that Family is supposed to be elected on the Account of its Nobility and Figure; and therefore, whenever it becomes extinct, the Sovereignty should return to the People as before. So Curtius, B. x.1 says, That the Crown should remain in the same House and Family; that the Blood Royal should have an hereditary Right to it; that they used to respect and reverence the very Name (of Philip) and that none took the Name who was not born to Reign.
XVI. Natural Children have no Right to these Crowns.XVI. The Third, That no Persons should be admitted to the Succession, but such only as were born according to the Laws of the Country; no natural Sons, because they are not only exposed to Contempt, on Account of their Father's not marrying their Mother, but because it is not altogether so certain whose Children they are; whereas it is of the last Importance, that Subjects have all the Assurance possible of their Prince's Birth, to avoid all Disputes that may hereafter arise on that Subject: And for this Reason it was, that the Macedonians thought the Crown belonged more to Demetrius the younger, than to Perseus who was elder;1 because Demetrius was born in good and lawful Wedlock. And we read in Ovid,2
Nor ought adopted Sons to be admitted here, because People not only entertain higher Hopes of, but have also a greater Veneration for, a Person of Royal Extraction.
XVII. In such Kingdoms Males are preferred before Females in the same Degree of Blood.XVII. Fourthly, That even of those who have the same Pretensions, either as they are Relations of the same Degree, or by Representation,1 the male Issue mustEdition: 1738; Page: [235] certainly be preferred to the female, as2 being thought more proper for the Burthen and Fatigue of War, and better qualified for discharging all the other Offices of a Sovereign.
XVIII. Among Males the eldest to be preferred.XVIII. 1. Fifthly, That not only amongst the male Issue, but also among those of the other Sex, in Default of Males, the1 Preference must always be given to the eldest; it being presumed that the elder has, or, however, Edition: current; Page: [608] that he will sooner have, more Judgment and Conduct than the younger. So Cyrus in Xenophon, Τὸ προηγεɩ̂σθαι, &c.2 I bequeath my Crown to my eldest Son, as having, it is very likely, a greater Knowledge of the World. But because this Prerogative of Age is only a3 transient Advantage, but that of the Sex perpetual; therefore is the Prerogative of Sex much more considerable than that of Years. So Herodotus, when he had related that Andromeda's Son Perses succeeded Cepheus in the Kingdom, assigns this Reason, ἐτύγχανε, &c.4 For Cepheus had no male Issue. And, Having no Sons, ἄπαις ὢν ἀῤῥένων, &c. as Diodorus informs us, Teuthras left the Crown of Mysia to his Daughter Argiope. So Trogus tells us,5 that the Empire of the Medes belonged to his Daughter, because Astyages had no male Heir. So doth Cyaxares in Xenophon declare, that the Crown of Media was his Daughter's, οὐδὲ γὰρ ἐστὶ, &c.6 For, says he, I have no Son who is legitimate.Aen. l. 7. v. 50. And Virgil, speaking of King Latinus,Edition: current; Page: [609]
Filius huic sato, &c:
So before the Reigns of the Heraclidae, Sparte, his Daughter, or her Children,Paus. l. 3. succeeded Eurotas in Laconia, as Helena's Children did Tyndareus, because there were no Males: And his Uncle Atreus succeeded Eurystheus, in the Kingdom of Mycenae,Edition: 1738; Page: [236] as Thucydides observes.Lib. ii. By the same Right, the Crown of Athens devolved7 on Creusa, and that of Thebes on Antigone, for Want of male Issue. And the Crown of Argos upon Argus, Phoroneus's8 Grandson by his Daughter.
2. From whence too we are to understand, that tho' Children do in some Degree supply the Places of their Parents before-deceased, yet this is only to be allowed of, when they are as capable to succeed as any of Edition: current; Page: [610] the Rest; and here too, where Persons are thus capable, first the Prerogative of Sex, and then that of Age, must always be regarded and maintained. For the Quality both of Sex and Age, as it is looked upon in this Case by the People, is so fixed and inherent in the Person, as not to be separated from it.
XIX. Whether such a Crown be Part of the Inheritance.XIX. Here it may be asked, Whether a Crown, thus conveyed, be a Part of the Inheritance? The more probable Opinion is, that it is1 a Kind of an Inheritance itself, but distinct from that of the other Effects. Such peculiar Inheritances there are in2 some Fiefs in a3 Copyhold Estate, in Edition: current; Page: [611] theEdition: 1738; Page: [237]4 Rights of Patronages, and in what we call a5 Preciput. Whence it follows, that the Crown may belong to him who, if he will, may be Heir too of the other Effects; yet so, that he may enjoy the Crown Edition: current; Page: [612] without the other Effects, and their Incumbrances.6 The Reason is, because it is supposed that the People would have the Crown descend in the most advantageous Manner to the Successor. Neither is it any Thing at all to them, whether the Prince accepts of the Inheritance of the private Estate or not, since it was not upon this Account that they made choice of an hereditary Order in Succession, but that his Title might be beyond Dispute, and he the more reverenced in Regard to his Royal Blood; and that from his Family and Education, something particularly great and noble might be expected in him, and that the Prince himself in Possession might be the more careful of his Kingdom, and defend it with the greater Courage and Resolution, knowing that he was to leave it to them, whom he highly esteemed, either out of7 Gratitude or Affection.Edition: current; Page: [613]
XX. It is to be presumed that the Succession to the Crown is such as was usual in Successions to other Effects, at the Time when that Kingdom first began; whether the Crown was Freehold.XX. But where the Custom of Succession is different as to1 Freeholds and Copyholds, if the Kingdom be not feudatary, (held of another in Fee) or was not so at first, tho' Homage hath been since done for it, yet shall the Succession2 pass inEdition: 1738; Page: [238] the same Manner as that of Freeholds did, at the first Establishment of the Kingdom.
XXI. But in those Kingdoms that were at first given to be held in Fee, by him who was full Proprietor, the Order of the Succession1 shall be the same as in Copyholds, not always indeed according to that of the Lombards, which we have in Writing, but what was received in every Nation at the first Investiture. For the Goths, Vandals, Germans, Franks, Burgundians, English, Saxons,XXI. Or held in Fee. and all the German Nations, which by War possessed themselves of the best Parts of the Roman Empire, have every one of them their own Laws and Customs concerning Things held in Fee, as well as the Lombards.Edition: current; Page: [614]
XXII. What a lineal Succession is, and how the Right is in that Case transmitted.XXII. 1. But there is another Kind of Succession much used in some Kingdoms, not hereditary, but what they call1 Lineal, in which is observed,2 not that Right which is termed Representative, but a Right of transmitting the future succession, as tho' it were already descended; and this by a Law grounded on Prospect and Expectation only, which Prospect and Expectation can naturally, and of itself, do nothing; but does, however, in this Case, occasion a Sort of real Right; such a Right as one has3 to Things due from a conditional Stipulation, so that this very Right Edition: current; Page: [615] necessarily passes to the Descendants of the first King, but in an Order that is fixed and certain; and therefore, in the first Place, the Children of the last Possessor of the first Degree, as well those who are alive, as those who are dead, are to be admitted, with Respect had, as well among the living as the dead, to the Sex first, and then to the Age. And if the Right of Succession be in the Deceased, it shall pass to such as are descended from them, observing againEdition: 1738; Page: [239] the Prerogative of Sex, and then of Age; always transmitting the Right of the Dead to the Living, and of the Living to the Dead. Upon Failure of Children, then, it descends to those who are either nearest related, or if they had lived, would have been so, observing still the same Transmission, and among Equals of the same Line, the same Distinction of Sex and Age, but so as not to pass from one Line to another, on the Account of Sex and Age. And consequently, the Daughter of a Son should be preferred before the Son of a Daughter; and the Brother's Daughter before the Sister's Son; an elder Brother's Son before a younger Brother, and so on. This was the Order of Succession to the Crown ofa Castile, and so is the Right of Majorasgo in4 that Kingdom settled too.
2. But the Proof of this lineal Succession, if there were neither Law nor Example for it, might be taken from the Order that is observed5 in publick Assemblies. For if Regard be had there to lineal Descents, it is an Evidence that Hope and Expectation only, is by Law quickened into a just Right, and that this Right does pass from the Dead to the Living. Now this lineal Succession is called likewise Cognatick, because the Females, and their Children, are not excluded, but only postponed in the same Line, so that if in Case the nearer Relations, or the Males, who are in other Respects equally related, or the Descendants of those Males Edition: current; Page: [616] should fail, then the Succession returns to them. The Foundation of this Succession, as it differs from an hereditary one, is the Hope and Expectation of the People, that those who have the justest Pretensions to the Crown, will have the best Education; such as those whose Parents would have succeeded, if they had lived.
XXIII. What the lineal Agnatic Succession is.XXIII. There is also another lineal Succession, called the Agnatic, a Succession of Males only, who are descended of Males, which from a Custom of the illustrious Kingdom of France, is therefore commonly called1 the French Succession. This differs from the Cognatic Succession, in that it was principally designed to exclude Females, to prevent the Crown's passing into a strange Family by the Marriage of the Daughters. In both these lineal Successions, all are admitted who are related, tho' in the most remote Degrees from the last Possessor, if they are but descended from the first King. But2 in some Places also, where the Succession in the Male Line fails, they allow that of the Female in its Room.
XXIV. A Succession that always regards the nearest in Blood to the first King.XXIV.1 Other Methods of Succession may also be introduced, either at the Pleasure of the People, or of him who holds the Kingdom by such a patrimonial Right, that he may alienate it if he will; as for Example, Edition: current; Page: [617] he may so settle it,2 that they who are nearest related to himself, at any Time whatever, may succeedEdition: 1738; Page: [240] in the Kingdom; as it was formerly among the Numidians,Liv. Lib. 29 . where for the same Reason the Brothers of the last King were preferred before his own Children. The same was practised in Arabia Felix, as we find in3 Strabo; and the Modern Writers4 Edition: current; Page: [618] tell us the same of Taurica Chersonesus; neither is it long since5 the African Kings of Fez and Morocco did so. And that this Order is what we must observe, in a Doubt, without Respect to a6 Feoffment of Trust, left to a Family, is the more likely Opinion, and agreeable to the7 Roman Laws, tho' some Interpreters wrest them otherwise. These things being well understood, it will be easy to decide all Controversies concerning the Right of Crowns, which the different Judgments of Lawyers have made so intricate and difficult.
XXV. Whether the Son may be so disinherited, as not to succeed in his Fathers Kingdom.XXV. The first Question is, whether a Father may disinherit his Son, so that he shall not succeed in his Kingdom. Here we must distinguish between Crowns which are alienable, that is, patrimonial, and such as are not alienable. For in1 alienable ones, no doubt of it, disinheriting is Edition: current; Page: [619] valid, because such Crowns do not differ2 from other Goods and Chattels; and therefore what is established by Law or Custom in Regard to Disherison, ought to be observed with Respect to a Prince disinherited by his Father; and though there were no Law or Custom to countenance it, yet it is naturally lawful for a Father to exclude a Son from all but bare Maintenance, and even that too, if he has committed any Capital Crime; or has any otherwise notoriously offended, provided he has any other Method of subsisting. Thus wasEdition: 1738; Page: [241] Reuben for his Misdemeanor3 deprived by Jacob of his Birth-Right, and Adonijah by David of the Crown.4 Nay, who ever has done any enormous Crime against his Father, unless there shall be manifest Signs that he has forgiven him,5 he shall Edition: current; Page: [620]Edition: current; Page: [621] be reputed as one tacitly disinherited. But in Crowns not Alienable, tho' they are Hereditary, it is otherwise, because the Hereditary way is indeed of the People's own chusing; but then it is6 so Hereditary as not to be disposed of by Will.7 Much less shall disinheriting be allowed in a Lineal Succession, because here is nothing like the Order of Successions purely Hereditary, but the Crown by the People's Original Donation, passes from one to another, in the Order prescribed.
XXVI. Whether a Prince may for himself and his Children abdicate and renounce all Title to the Crown.XXVI. Another Question is, whether a Prince may abdicate his Kingdom, or renounce his Right of Succession? There is no doubt but a Person may renounce forEdition: 1738; Page: [242]1 himself; but whether he can for his Children, is not so easily determined, but this too is answer'd by one and the same Distinction. For in Crowns that are Hereditary, he who gives up all his Right cannot transfer any thing to his Children. But in a Lineal Succession the Father's Act cannot hurt his Children who are already born, because as soon as ever the Children are come into the World, they acquire a Right of their own by Law; neither can it affect those that are to be born, because the Right entailed upon them by the People's Donation, must in its due time belong to them. Neither does what I have said already concerning Transmission contradict this: For that Transmission is, as to the Parents, of Necessity, and not left to their Will and Discretion. The Difference between the Children born before the Abdication, and those who were born after, is this, those who were born after had not then acquired their Right; and therefore it might be taken Edition: current; Page: [622] from them by the Will of2 the People, if the Parents too, whose Interest it is that that Right should pass to their Children, shall consent to part with it:Chap. vi. § 10 of this Book. To this Purpose is what I advanced above concerning Dereliction.
XXVII. Neither Prince nor People have a Right to pass an Absolute and Peremptory Judgment on the Succession to the Crown.XXVII. 1. There is also another Question, who shall judge of the Right of Succession to a Crown? Whether the Prince then reigning, or the People, either by themselves, or by Judges deputed for them? If you mean a Judgment by way of Authority and Absolute Decision, neither of them have any Right to judge? For such an Authority cannot be but in a Superior, and here Regard must be had not only to the Person, but to the Matter in hand also, which is to be consider'd with all its Circumstances.1 Now the Affair of the Succession does not depend on the present King; which appears from hence, that the King now reigning can by no Law2 oblige his Successor. For the Succession to the Crown is not under the Power of the Crown, and therefore Disputes on that Head Edition: current; Page: [623] are to be decided as in the State of Nature, in which there was no Jurisdiction.
2. Yet if the Right of Succession be disputed, those who lay a Claim to it would do prudently and well to agree upon Arbitrators, of which we shall treat in another Place; but as for the People3 who have transferred Edition: current; Page: [624] all their Right of Jurisdiction toEdition: 1738; Page: [243] the Prince and the Royal Family, whilst that Family continues they cannot pretend to any Remains of it. I am speaking of a true King, and not of one that is only Prince or Head of the State. But if any Question rise of the primary Will of the People, it would not be amiss to take the Advice of the4 People now in Being; for they may be judged to be the same as those who lived formerly, unless it does plainly appear that the People who lived formerly, and by Vertue of whose Will this Right was obtained, were directly of another Mind. Thus did King Euphaes5 permit the Messenians to determine which of the Royal Family of the Epytidae had Edition: current; Page: [625] the best Title to the Throne; and the Dispute between Xerxes and Artabazanes was debated before, and determined6 by the People.
XXVIII. The Son born before his Father's coming to the Crown to be preferred before one born after. Hotom. Ill. Quaest. ii. and Tiraquel. de primog. p. 31.XXVIII. To proceed to other Questions; that he who was born1 before his Father's Accession to the Throne, ought in a Kingdom that is indivisible, in any kind of Succession whatever, to be preferr'd to him who was not born 'till his Father came to the Crown, is a substantial and certain Truth. For that he would have his Share in a divisible Kingdom there can be no doubt of it, as well as in other Goods and Effects, concerning which it signifies nothing when they were got. He then, whoEdition: 1738; Page: [244] in a divisible Kingdom would have his Share, must surely in that which is indivisible be preferred by the Prerogative of his Birth; and for this Reason it is, that a Fief goes to that Son who was born before the first Investiture. So too, in a lineal Succession, as soon as ever the Crown is obtained, the Children who were born before immediately entertain Hopes of one Day or other succeeding to it; for, suppose there were none born after, no body will say that those who were born before should be excluded. But in this kind of Succession, an Hope once entertained creates a Right; neither does it cease by any after Fact, unless in a cognatic Edition: current; Page: [626] Succession, where it may be for a time suspended by the Privilege of the Male Sex. This we are talking of was a Maxim that obtained in Persia, between Cyrus and Arsica;2 in Judea, between3 Antipater the Son of Herod the Great, and his Brothers; in Hungary when Geissa4 began his Reign, and in Germany (tho' not without War)5 between Oth I. and Henry.Edition: current; Page: [627]
XXIX. Unless it appears that the Crown was conferred on some other Condition.XXIX. But that, as we read, it was otherwise in Sparta, is owing to the peculiar Law of that People, which1 gave the Preference to the Children that were born when their Father was on the Throne, because of their more exact and nicer Education. The same also may happen in Consequence of a Clause of the first Investiture. If, for Instance, the Sovereignty be granted in Fee to a Vassal, and to the Heirs of his Body that shall hereafter be born. Upon the Strength of this Argument it was, that2 Lewis Sforza did chiefly rely in the Dispute between him and his Brother Galeati about the Dutchy of Milan. For as to Persia,3 that Xerxes obtain'd the Crown to the Prejudice of Artabazanes, was, as Herodotus observes, owingEdition: 1738; Page: [245] more to the Power of Atossa4 his Mother, than to the Justice of his Cause. For in the same Persia, when a like Dispute arose between Artaxerxes Mnemon and Cyrus, the Sons of Darius Edition: current; Page: [628] and Parisatis, Artaxerxes as the elder, tho' born when his Father was a private Person, was yet declared King.
XXX. Whether the Grand child by the elder Son is to be preferr'd before a younger Son; this explained by a Distinction.XXX. 1. It has been no less a Dispute, both by Wars and1 single Combats,2 whether the Son of the elder Brother should be preferred before a younger Brother; but this in a lineal Succession admits of no Difficulty; for there the Dead are reputed as the Living, in that they are able to transfer a Right to their Children; and therefore in such a Succession, the Son of the Deceased shall certainly be preferred without any Objection to his Age; nay, where the Succession is cognatic, the eldest Son's Daughter;Hot. Ill. q. 3. Tiraq. de prim. q. 40. because neither Age nor Sex can be a Plea for going out of the Line. But in hereditary Kingdoms that are divisible, each shall have a Share, unless in those Countries where the Right of Representationa is not observed,3 as formerly among most Nations in Germany; for it is but of late Days that Grandchildren have been admitted to Succession as well as Sons.Molin. de prim. l. 3. c. 6. However, in any Case of Doubt, it is to be presumed that this Vice-Succession takes Place, as being the more agreeable to Nature, as we said before, [§ 6.]
2. And where by the Civil Laws of a Country, the Representation is formally authorised, there it shall be in Force, tho' there be a particular Mention made in any Law of the next of Kin, as called to the Succession. The Reasons produced from the Roman Law for this, are not very conclusive, as will appear to any one that looks well into them. But the best Edition: current; Page: [629] Reason is this, That in a4 favourable Subject, the Sense of Words must be extended to whatever they can signify, not only according to common Use, but also according to the Use of Arts; so that under the Name of Sons may be comprehended adopted ones; and under that of Death may be included a civil Death, (those that are dead in Law) for the Laws generally speak thus. Wherefore he may thus be justly called the next of Kin, whom the Law puts into the Degree of the next of Kin. But in hereditary Kingdoms that are indivisible, and where this Right of Representation is not excluded, neither is the Grandson always, nor always the younger Son preferred, but as amongst Equals, because5 by an Effect of the Law they are put in the same Degree, he will have the best Title who is the eldest. For as I said before, in hereditary Kingdoms the Prerogative of Age doth not pass from one Person to another. Among the Corinthians, Ὁ πρεσβύτατος ἀεὶ τω̂ν ἐκγόνων, The eldest of the deceased King's Children succeeded in the Throne, as George the Monk has proved out of the sixth Book of Diodorus Siculus. So among the Vandals, it being ordered, that he who was next in Blood, and the eldest, should be Heir;b theEdition: 1738; Page: [246] younger Son was, on the Account of his greater Age,6 preferred to the Eldest's Son. So in Sicily, Robert Edition: current; Page: [630] cwas preferred before his elder Brother Martel's Son, not properly, for the Reason supposed by Bartolus, because Sicily was held in Fee, but because the Crown was hereditary.
3. There is an old Instance of such a Succession in the Kingdom of France, in the Person ofd Guntran; but that happened rather from the Choice of the People, which at that Time was not entirely left off. But since that Kingdom ceased to be elective, and a lineal agnatic Succession has been established, the Matter is past dispute; as formerly among thee Lacedemonians, when the Crown descending on the Heraclidae,Paus. l. 3. they made the Succession like this, agnatic. And therefore Areus, the Son of the elder Brother Cleonymus, was preferred before his Uncle7 Cleonymus. And so in the lineal cognatic Succession the Grandson shall be preferred. Edition: current; Page: [631] As in England,8 John, King Edward's Grandchild by his eldest Son, was preferred before Hemon and Thomas, the other Sons of that Edward. And this was also settled by Law in the Kingdom of Castile.
XXXI. So likewise whether the King's surviving younger Brother is to be preferr'd before his elder Brother's Son.XXXI. By the same Distinction we may answer another Question, between the last King's younger Brother, and the elder Brother's Son; only we must observe, that in many Places, where among Children the Living are in the Right Line allowed to succeed the Dead, they are not allowed it in the collateral one. But where the Right does not plainly and directly appear, we ought to incline rather to that Side which substitutes the Child in his Father's Room; because natural Equity1 leads us to this, I mean as to Estates that come by Ancestors. Neither is it any Objection, that Justinian calls this Right of Brother's Children, Προνόμιον,2 A Privilege: For this he does, not in Respect to natural Equity, but to3 the antientEdition: 1738; Page: [247] Roman Law. Let us now run over the other Questions proposed by Emanuel Costa.Edition: current; Page: [632]
XXXII. Whether the King's Brother's Son is to be preferr'd before the King's Uncle.XXXII. He says, that the Son, or even the Daughter, of the deceased Brother, is to be preferred before the King's Uncle; which is true,1 not only in a lineal Succession, but even in ana hereditary one in such Kingdoms, where the Right of Representation is admitted; but not in Kingdoms, which in express Words have Respect to the natural Degree; for in those the Person who has the Advantage of Sex and Age is to be preferred.
XXXIII. Whether the Grandson by the Son is to be preferr'd before a Daughter.XXXIII. He adds, that a Grandson by the Son, is to be preferred before a Daughter. It is true, upon the Account of his Sex; but with this Exception, unless it be in a Country which regards among Children only the Degree.
XXXIV. He also adds, that the younger Grandchild by a Son, is to be preferred before the elder by a Daughter,1 which is true in the lineal cognatic Succession,XXXIV. Whether the younger Grandson by the Son is to be preferr'd before the elder by the Daughter. but not in the hereditary, unless authorized by some special Law. Neither is the Reason alledged for this sufficient, Because the Father of the one would have excluded the Mother of the other; for this Exclusion would have been on the Account of a Prerogative merely personal, which passes no farther.
XXXV. Whether the Grand-daughter by the elder Son is to be preferr'd before the younger Son.XXXV. As for what he subjoins, as appearing to him the more likely Opinion, that the Grand-daughter by the elder Son sets aside a younger Edition: current; Page: [633] Son, is not allowable in hereditary Kingdoms, tho' the representative Succession be admitted there; for this only puts her into a Capacity of succeeding; but among those who are capable of succeeding, the Prerogative of the Sex must carry it.
XXXVI. Whether the Sister's Son is to be preferr'd before the Brother's Daughter.XXXVI. And therefore1 in the Kingdom of Arragon, the Sister's2 Son was preferred before the Brother's Daughter.
XXXVII. And after the same Manner, in hereditary Kingdoms, the Daughter of the eldest Brother must yield to the King's younger Brother.XXXVII. Whether the elder Brother's Daughter is to be preferred before the younger Brother.
I. Many Things are said to be by the Right of Nations which properly speaking are not so.I. 1. The Order of our Subject has now brought us to treat of that Acquisition or Property, which is, by the Law of Nations, distinct from the Law of Nature, which we have above called the Voluntary Law of Nations. SuchEdition: 1738; Page: [248] is that Acquisition which is obtained by the Right of War; but of this we shall speak more seasonably hereafter, where the Effects of War are explained. The Roman Lawyers, when they treat of the acquiring the Property of Things, reckon up many Methods, which, they say, are according to the Right of Nations. But a diligent Examiner will find that all of them, except that gained by the Right of War, do no Ways belong to that1 Right of Nations, which we are now treating of: But are either to be referred to the Law of Nature, not indeed to that Edition: current; Page: [635] which flows purely and simply from Nature, but to that which takes Place in Consequence of an established Property, and before all civil Law; or, they are such as may be referred to the Civil Law itself, not only that of the People of Rome, but of2 many other Nations round about them; which I rather believe, because those Laws or Customs came originally from the Greeks, whose Institutions, as Dionysius Halicarnassensis and others observe, all Italy, and the neighbouring Nations followed.
2. But this is not the Law of Nations, properly so called, because it3 does not belong or contribute to the mutual Society of Nations amongst themselves; but rather regards the Peace and Tranquillity of each particular People; and therefore might be altered by any one People, without consulting the others; and it may also happen, that in some other Places, and at some other Times, a very different common Custom, and so another Law of Nations, improperly so called, might be introduced; which we find was really done, when the German Nations invaded almost all Europe. For as formerly the Grecian Laws, so then the German, were generally received, and are as yet in Force. Now the first Way of acquiring a Thing by the Right of Nations, as the Roman Lawyers call it, is the4 Edition: current; Page: [636] Seizure or Possession of Things that have no Owner: Which Way is certainly according to the Law of Nature, in the Sense I mentioned, now Property is established, and as long as no Law hath determined any Thing to the contrary; for the Civil Law too can entitle us to a Property.
II. Fish in Ponds and Beasts in Parks, are by the Law of Nature one's own peculiar Property, notwithstanding whatever the Roman Laws have declar'd to the contrary.II. And to this Head, in the first Place, is referred the Catching of Beasts, Birds, and Fish. But how long all these may be said to be no Body's, admits of some Dispute. Nerva,1 the Son, was of Opinion, that Fish in a Pond were ourEdition: 1738; Page: [249] own, but not those in a great Lake; and wild Beasts inclosed in a Park, but not those that had the Liberty to range in Forests, tho' those Forests were fenced in. Whereas Fish is no less inclosed in a private Lake than in a Pond, and Forests which are fenced in, do secure Beasts as well as any of the Parks, which the Greeks call Θηριοτροϕεɩ̂α, Places to breed up Beasts in. Nor is there any other difference between them, than that the one is the closer, the other the larger Confinement. And therefore now-a-Days the contrary Opinion does more justly obtain, that as we have the Possession of, so have we too a Property in, not only Beasts in private Forests, but Fish inclosed in Lakes.
III. Wild Beasts that get away cease not to be the first Owner's, if they can know them again.III. The Roman Lawyers say, that we lose our Property1 in wild Beasts, as soon as ever they recover their natural Liberty; but in all other Things the Property acquired by Possession2 does not cease with the loss of Edition: current; Page: [637] Possession; nay, it gives us a Right even to claim and recover our Possession. And whether they be taken away from us by another, or getaway of themselves, as a3 fugitive Slave, it is all one. Wherefore it is more reasonable to say, that our Property is not lost merely because the wild Beasts have made their Escape,See Ch. 4. § 5. of this Book. but from a probable Conjecture, that by Reason of the difficulty of pursuing and recovering them, we may have abandoned them, especially if we cannot tell which are ours from others. But this Conjecture may be destroyed by other Conjectures, as by putting Γνωρίσματα, Marks,4 or Crepundia, Bells, upon them, as has been often done to Stags and Hawks, whereby they have been known, and restored to their Owners. Now to gain a Property in Things, it is requisite that we should have5 a corporal Possession, and therefore it is not enough to have6 wounded the Beast, as it was7 rightly decided against Trebatius. Edition: current; Page: [638] Hence comes the Proverb, Aliis leporem excitasti.8 You have started the Hare, but others run away with it. And Ovid tells us, in his fifth Book of Metamorphoses, that9 It is one Thing to know where a Thing is, and another to find it.
IV. Whether Possession may be gained by Instruments, and how.IV. Now this corporal Possession may be gained not only with our Hands, but with Instruments, such as Traps, Nets, Gins, &c. provided that these twoEdition: 1738; Page: [250] Circumstances go along with it. First, That those Instruments1 be in our own Power; and Secondly, that the Beast be so secured as that it cannot get away. And thus must we decide the Case of2 the Boar in the Toil.
V. It is not against the Law of Nations that all wild Beasts should belong to the Crown.V. These Things are then only to take Place, where no Civil Law intervenes; wherefore our Moderna Lawyers are very much mistaken, who think those Rights to be so natural, as that they cannot be changed; for they are not purely, and simply natural, but only with Regard to a certain state of Things, that is, if it be not otherwise provided. Thus the People Edition: current; Page: [639] of Germany consulting about making some Allowances to their Princes and Kings to support their Dignities,1 very wisely thought it proper to begin2 with such Things as might be given without Damage to any one, such are those which no Person could lay particular Claim to; which I find that the Egyptians also practised: For there the King's Intendant,3 whom they called ἴδιον λόγον, seized on all such Things to the Use of the Crown. The Law indeed could of it self transfer a Property in those Things before Possession,b since the Law alone is sufficient to create a Right of Property.
VI. How the Possession of other Things that have no Owner may be gained.VI. After the same manner as wild Beasts become our own, so do also1 other ἀδέσποτα, Things that have no Owner. For Nature consider'd in itself gives all these to him who finds, and lays hold on them first. Thus was the Desart2 City of Acanthos adjudged to the Chalcidians, who first Edition: current; Page: [640] enter'd it, not to the Andrians who had first thrown a Dart into it. For the beginning of Possession is joining Body to Body, and this in Moveables is done usually by the Hands; but in Immoveables, by our Feet. To know where a Thing is, is not finding it, as we have it in Ovid Metam. Lib. V.
VII. To whom Money found does naturally belong; and the Variety of Laws about it.VII. Among Things that have no Owner, are reckoned Treasures, that is, Money, whose Owner is not known;1 for what appears not, is, as if it were not. Wherefore such Treasures naturally belong to the Finder, that is, to him who moves them from the Place, and secures them; yet not so, but that2 Laws or Customs may order it otherwise. Plato3 would have Notice given to the Magistrates, and the OracleEdition: 1738; Page: [251] consulted. And Apollonius looking upon a Treasure that was found as a particular Kindness of God,4 adjudg'd it to the best Man. The Hebrews5 gave it Edition: current; Page: [641] to the Owner of the Ground wherein it was found,6 as may be gather'd from Christ's Parable, Matt. xiii. 44. And that the Syrians did the same, I infer from a Story in Philostratus, Book VI. Chap. XVI. The Laws of the Roman Emperors are very various upon this Subject, as appears partly from7 their Constitutions, and partly from the Histories8 of Lampridius, Zonaras and Cedrenus. The Germans awarded those Treasures,In Adr. and Sever. and indeed all other ἀδέσποτα, Things without an Owner, to their Prince, which now is grown so common, that it may pass for a Law of Nations. For it is now observed in Germany, France, England, Spain and Denmark. We have already sufficiently9 shewn why this cannot be charged with Injustice.
VIII. That what is delivered us by the Roman Laws concerning Islands and Alluvions is neither natural, nor from the Right of Nations.VIII. Let us now proceed to Additions of Lands, which are made when a River retires or changes its Course, of which the old Lawyers1 have left us several stated Cases; and the Modern furnish us with whole Treatises. But what they have writ upon this Subject, is for the most part grounded not on the Law of Nature, but on the Usages of some Nations, though they often put them off under that Name. For most of their Edition: current; Page: [642] Decisions are built upon this Foundation, thata The Banks of the River belong to him who possesses the adjoining Lands; and2 that even the Channel,3 when it is forsaken by its Waters, is also his, and consequently that the Islands cast up in the River are4 so too. They likewise distinguish one Inundation from another; a small one does not take away the Property, but ab great one does; yet so, that if the Flood retire sall of a sudden, the Land so overflowed shall, by the drawing off of the Waters, as if by5 Postliminy, return to its antient Proprietor, but if it Decreases by little and little only,6 it is another Thing; it goes to them who own the neighbouringEdition: 1738; Page: [252] Estate. Now I do not deny, but all this might be introduced by the Civil Laws, and with the advantageous Prospect of making People more careful in securing their Banks; [[7]] but that it is so by natural Right, (as they seem to imagine) I can by no Means allow.Edition: current; Page: [643]
IX. That an Island in a River and a dried up Channel are naturally his to whom the River, or that Part of the River belongs, that is, they are the Publick's.IX. 1. For if we Regard what1 generally happens, the Body of the People took Possession of the whole Extent of a Country, both as to the Jurisdiction and Property, before the Lands were parcel'd out to private and particular Persons. What we, says Seneca,2 call the Country of the Athenians, or the Campani, are such Lands as the Inhabitants do afterwards among themselves distinguish by certain Boundaries. And so Cicero,3 There's no Man can say that he has any Thing of his own by a Right of Nature; but either by prior Occupancy, as those, who first planted uninhabited Countries; or by Conquest, as those who have got Things by the Right of the Sword; or else by some Law, Compact, Condition or Lot.See Ch. 3. of this Book, § 19. It is by some of these Means, that the People inhabiting Arpinum and Tusculum came to have those Lands which are now called theirs; and the same may be said as to private Mens Estates. And Dion Prusaeensis, πολλά ἐστιν ἑυρεɩ̂ν, &c.4 There are many Things to be found, that the Publick does in general claim for its own, tho' parcelled out into particular Shares. Thus too Tacitus of the Germans, The Lands5 (per Vicos occupantur, it is a Mistake to read it Vices) are possess'd in common by Villages, in Proportion to the Number of Hands to improve them; and then they are divided amongst them, with Regard to every Man's quality and Circumstances. And therefore whatever was thus at first possess'd by the Publick, and not afterwards divided, must be suppos'd to be still the Property of the Publick; and as in a River that belongs to a private Person, any Island that shall be cast up, or the Channel that shall be left dry, becomes that private Person's: So Edition: current; Page: [644] in a River that belongs to the Publick, both of these are the Publick's, or his to whom the Publick has granted them.
2. What we have here been saying of the Channel,6 holds good also as to the Bank, which is nothing but the utmost Part of the Channel, that is, of the Passage where the Stream of the River naturally runs. And thus it is every where taken. In Holland, and the neighbouring Countries, many such Disputes did formerly arise, by Reason of the Lowness of their Lands, the Greatness of the Rivers, and the Nearness of the Sea, receiving Mud and Dirt in one Place, and carrying it back to another by the Ebbs and Flows of successive Tides: Those that were really Islands, were always reckoned Part of the publick Demain or Patrimony; as were also the Channels of the Rhine and the Maese intirely left by the Waters, as has been often adjudged, and grounded7 upon very good Reasons.Edition: 1738; Page: [253]Edition: current; Page: [645]
3. For the Roman Lawyers themselves do allow,8 that an Island9 which floats in a River, held up perhaps by some Shrubs growing there, belongs Edition: current; Page: [646] to the State; because,10 say they, whoever has a Title to the River, must needs have as good a Title to the Island that is in it. And there is the same Reason for the Channel, as for the River itself, not only upon that Account which the Roman Lawyers alledge, because the Channel is covered by the River, but for the Reason already mentioned, because they were both originally possessed by the People, and had never been assigned as the Property of any private Person. Nor do we allow what they urge to be natural,11 that if the Lands were12 limited, the Island would belong to the prior Occupant. This indeed would be so, if neither the River nor the Channel with it had13 been in the Possession of the Publick, as an Island formed in the Sea belongs to him who shall first seize on it.Edition: 1738; Page: [254]
X. That a Flood does not, according to Nature, take away a Property in Land.X. 1. Neither is that more to be allowed, which they talk of a greater Flood, if we respect only natural Reason. For suppose the Surface of the overflowed Land were turned into Sand, yet the lower Parts of it remain firm and solid; and1 tho' some of the Quality be changed, yet the Substance Edition: current; Page: [647] is not changed at all, no more than that Part of a Field is, that is devoured by a Lake, the Property whereof, as the Roman2 Lawyers with Reason acknowledge, is not changed. Nor is that by any Means natural which3 they say, that Rivers, like the antient4 Receivers of Land Taxes, sometimes take from the Publick to give to private Persons, and sometimes from private Persons to give to the Publick. Much better did the Aegyptians understand and manage this Matter, as Strabo reports of them, Ἐδέησε δε τη̂ς ἐπ' ἀκριβὲς, &c.5 They are obliged to be particularly exact and nice in the Division of their Lands, because of the frequent Confusion of Boundaries, which the Nile by its Overflowings occasions, taking from one Part and adding to another, changing the very Form and Look of Places, and entirely concealing all those Marks that should distinguish one Man's Property from another's. And therefore there is a Necessity for their often making new Surveys.6
2. Hereunto agrees what the Roman Lawyers have delivered us, that7 what is ours, ceases not to be ours, but by our own Fact; add, or by Vertue Edition: current; Page: [648] of some Law. Now under Things done are comprehended, as we told you above,Ch. 4. of this Book, § 5. Things not done, as far as we can guess by them at another's Will and Inclinations. Wherefore we grant, where the Flood is very great, and no visible Signs of the Owner's Intention to retain his Property, it may well be presumed, that he abandons his Land. Which Presumption, as it is naturally uncertain and undeterminable, by Reason of the variety of Circumstances, and therefore to be referred to the Judgment of some honest Man, it is usual to have it decided by the Civil Laws. As in Holland that Land is consider'd as abandoned, which has been under Water for ten Years, if there appear no Signs that the Possession is still continued, in which Case it is our Custom, and that not an unreasonable one, tho' the Romana Lawyers reject it, to suppose the Owner retains his Possession by only fishing there, if he can no otherwise signify the keeping of his Title. But Princes used to fix a certain Time, within which the antient Owners of the Lands were to drain their Grounds, which if they did not, then they who had the Mortgage of them were to be warned to it, and after them, those who had a Jurisdiction over them, either merely Civil, or Civil and Criminal; and if they also delayed to perform it, then all the Right and Title to them devolved on the Prince, who either drained the Lands himself, and so united them to his own Domain, or gave them others to drain, and only reserved a Share of them to himself.Edition: 1738; Page: [255]
XI. Improvements made by Floods, if in Dispute, belong to the Publick.XI. 1. Whatever Improvements the Floods make; that is, whatever little Parcels and Bits of Land may be added, which, because1 it is not known whence they came, can be claimed by no Body, (for otherwise the Property could not2 naturally be changed) must certainly belong to the Publick, provided the Publick has the Property of the River, which is always Edition: current; Page: [649] to be supposed in a doubtful Case; if not, they belong to the prior Occupant.
XII. But they seem to be granted to those whose Lands have no other Bounds but the River.XII. 1. But the Publick have Power to grant them, as to others, so also to those who own the Lands next adjoining; and they are supposed to do so, if those Lands have no other Bounds on that Side but the natural ones; that is, the River itself. And here that Distinction which the Roman Lawyers make between Lands bounded and Lands1 measured, may be proper, but yet both of them have in this Case an equal Right. For what we have said before, concerning the Extent of a Territory,Ch. 3. of this Book, § 16, &c. when we treated of the Possession of it, the same is of Force in private Lands, but with this Difference, that the Bounds of a State (if in Dispute) are presumed to be (Arcifinious) bounded by Hills, Woods, or Waters, because most agreeable to the Nature of a Territory: But private Lands are rather supposed to be limited, or2 contained in a certain Measure, as most suitable to their Nature.
2. But yet we do not deny, but that the People may assign their Land, with the same Right as they themselves enjoy it, that is, as far as to the Edition: current; Page: [650] very River; which if so, then is any Addition that shall be made in this Manner, theirs also, as it was adjudged in Holland, some Ages since, of Lands bordering upon the Rivers Issel and Maese; because both by the Deeds of Purchase, and by the Books of Rate, they were always mentioned, as reaching to the River. And tho' in the Sale of these Lands, somewhat of the Measure be expressed; yet if they be sold by the Great, and not by Acres, they retain their Nature, and the Right of Alluvion; which is also3 mentioned in the Roman Laws, and generally practised.Edition: 1738; Page: [256]
XIII. The same may be said of the Shore that the River leaves, or of any Part of the Channel that is dried up.XIII. What we have said of an Alluvion, does also hold good of that Part of the Shore or Channel which the River forsakes; for where there is no Owner, the first Possessor has the best Title: In Rivers that are theirs, it belongs to the People, or to them to whom they themselves, or such Edition: current; Page: [651] as are impowered by them, have assigned the Lands next adjoining, as extending to the River, without other Bounds.
XIV. What is to be reckoned a Flood-Addition only, and what an Island.XIV. But since, as we said, there is a Difference between the Acquisition of Islands formed in a River,1 and the Acquisition of Alluvions, Disputes often arise, by which of the Names to call that little rising Ground, which is joined to the Lands adjacent, but yet so that the Waters cover the Space between. This is what we often see in our Provinces, where the Ground is uneven. Nor do our Customs in this Affair always agree; for in Gelderland, if a loaded Cart can pass, it belongs to the Owner of the Estate adjoining, provided he shews his taking Possession of it. So it is also in the District of Putte, if a Man on Foot2 can with his Sword's Point touch the rising Ground. But it is most natural, that if the Passage over be generally by Boat, it should be looked upon to be entirely separate, and therefore belonging to the Publick.
XV. When the Alluvions belong to Vassals.XV. 1. Another Question as frequently arises between a Prince invested with sovereign Power, and his Vassals, who have a Power inferior to, and dependent on his. But it is a very plain Case, that the bare Grant of such a Power does not entitle the Person so impowered to all the Additions made by Rivers. We must observe however, that some Vassals invested with these limited Governments, do, together with them, receive all the Lands in general, saving the Right of each private Person to his own Edition: current; Page: [652] Estate; because those Lands were antiently either the People's or the Prince's, or at least drained by the Prince; and if so, then without Doubt, to whatever the Prince or the People did enjoy, those Vassals have as good a Right. Thus we see in Zealand, that even those Vassals who establish Judges only for Civil Matters, pay a Tax for the whole Bulk of their Lands, which they afterwards levy upon each particular Person, in Proportion to the Value and Bigness of his Estate; And these, without any Disturbance, take to themselves the Alluvions. There are some to whom the River itself is granted, who may therefore justly claim the Islands thereunto belonging, whether such Islands are formed of Mud, or of the Soil of the Channel, being left uncovered by the Waters, which separate, and afterwards join together again.
2. There are also others, in whose Grants neither the one nor the other is comprehended, and these have an ill Cause to defend against the publick Exchequer, unless the Custom of the Country favours them; or a long uninterrupted Possession, with all requisite Circumstances, gives them a Right.
3. But if the Lands, without the Jurisdiction, be held in Fee, we must see what the Nature of the Land is, as I said before [§ 12]. For if it be Arcifinious, then the Right of Alluvion is granted with the Land, not from the peculiar Right of the Prince, but the Quality of the Land; for in such a Case a mere usufructuary1 would have the same Advantage.
XVI. The Arguments with which the Roman Lawyers would prove their Rights to be as it were the Rights of Nature, answered.XVI. The Roman Lawyers, in order to prove the Laws used by them to be those of Nature, often1 alledge this Saying, That it is most agreeable to Nature,Edition: 1738; Page: [257] that he should have the Profit of any Thing who has also the Disadvantage of it; wherefore, since the River does often wash away Part of my Land, it is but reasonable, that whensoever it makes any Addition it should be mine. But this Rule does not hold, unless Edition: current; Page: [653] where the Benefit arises from what is my own, but here it arises from the River, which belongs to another.2 And it is natural, that whatever Loss there is,3 the Owner should bear it. Besides, what they alledge is not universal, as may appear by the4 Exception of limited Lands. Not to insist upon what often happens, that a River makes some Persons rich and others poor, according to Lucan,5
XVII. A Highway naturally hinders any Advantage of Alluvions.XVII. But as to what they say, that a publick Road does no Ways hinder1 the Right to such Alluvions, it has nothing of natural Reason in it, unless the Ground belongs to some private Person who is obliged to provide such a Way.
XVIII. That it is not natural that the Young should follow the Dam only.XVIII. Among those Means of Acquisition, which are called Means that the Right of Nations allows of,1 one consists in the Breeding of Animals, wherein that which the2 Romans, and some other Nations, have decreed, that the Young should go along with its Dam, is not natural, as I have Edition: current; Page: [654] said already, but only as the Sire is generally unknown. But if the Sire could by any probable Means be discovered,Ch. 5. § 29. of this Book. there can be no Reason given, why the Young should not belong to him as well as her; for it is certain, that whatever comes into the World, is Part of him that begets it. But whether the Male or Female contributes most to its Production, is not yet agreed upon amongst Naturalists. Plutarch speaks thus of it, Ἡ Φύσις μίγνυσι δὶα τω̂ν, &c.3 Nature does so mix our two Sexes, that taking a Part from each, and blending them together, she returns what is born common to both, in such a Manner that neither of them can distinguish or discern that which was theirs, from that which was the other's. And this is what the antient4 Laws of the Franks and Lombards copied after.
XIX. That a Thing, according to Nature, becomes common as well by its Specification or Form, where the Matter is another's, as by Confusion or Mixture.XIX. 1. If any Body had formed a Thing out of another's Materials,1 the Sabinians gave the Property to him whose the Materials were, but Proculus to him who had given the Form, because he gave to a Thing an Existence which it hadEdition: 1738; Page: [258] not before. At last a middle Opinion was taken up, that if the Matter could be put into its first State, the Thing newly produced should belong to the Owner of the Matter; if that could not be done, then it should be his who gave it its Form. But Connanus does not like this, and is for having us consider, whether the Work or the Matter was worth most, that so that which was of the greater Value, Edition: current; Page: [655] might carry the other of less Value; an Argument fetched from what the Roman Lawyers have said concerning an2 Accessory.B. iii. Ch. 6.
2. But if we consider the true Principles of natural Right, as by3 a Mixture of several Materials, there arises a common Title to the Thing so mixed, in Proportion to what each has in it, which also the Roman Lawyers approved of, because the Right to such a Mixture could not otherwise naturally be decided; so when a Thing is composed of a Matter and a Form, as of its Parts, if the Matter belongs to one, and the Form to another, then4 must it naturally be common, in Proportion to the Edition: current; Page: [656] Value of each Part; for the Form is a Part of the Substance, and not the whole Substance; which Ulpian5 saw when he said, that the Substance was almost lost by the Alteration of its Form.
XX. Nay, tho' by Unskilfulness or Design the Matter be spoiled. XX. But, tho' it be not unjustly ordered, that he who takes, with a bad Intention, another Man's Materials, shall thereby1 lose his Labour, and Edition: current; Page: [657] forfeit allEdition: 1738; Page: [259] that he would be otherwise entitled to, yet since2 this is a Penalty, it cannot be founded on any natural Right. For tho' it be natural that every Offender should be punished, yet Nature does not determine that Punishment, nor does she of herself take away any one's Property for his Offence.
XXI. That it is not natural that a Thing of lesser Value should, on the Account of the other's greater Worth go along with it; where also other Mistakes of the Roman Lawyers are taken Notice of.XXI. And to say that the Thing of a lesser Value, must be carried by that which is of greater Worth, upon which Connanus builds, tho' it be natural in Respect of Fact,1 yet it is not so of Right. Wherefore he that has but the twentieth Part of an Estate, has as much Right in that Part as he who has the other nineteen has in his Parts. And therefore what the Roman Law has in some particular Cases decreed, or in some others may Edition: current; Page: [658] decree, concerning an Accessory, on the Account of superior Value, is not allowable by the Law of Nature, but only by the Civil Law, for the better Dispatch of Business; yet it is not repugnant to Nature, because the Civil Law has Power to confer a Right of Property. But there is scarce any one Question that relates to Right, about which the Opinions and Mistakes of Lawyers are so many and different as in this. For who can allow, that if Brass and Gold were mixed together they might not be separated, as Ulpian2 writes; or if Metals were solderd together they must needs be confounded, asEdition: 1738; Page: [260]3 Paulus; or that there Edition: current; Page: [659] 4 is one Rule for Writing, another for a Picture, that this should carry away the Cloth, but that that should go along with the Paper.
XXII. By Planting, Sowing, or Building upon another Man's Ground; two Parties are naturally admitted Sharers.XXII. That1 what is planted or sown should go along with the Soil, is also a Maxim of the Civil Law, for this Reason, because they are nourished by it. And therefore it is a Distinction about a Tree,2 whether it has taken Root or not; but the Nourishment of a Thing that existed before, makes only a Part of it; and therefore, as there is some Right due to the Owner of the Soil, on the Account of that Nourishment, so there certainly still remains a natural Right to the Owner of the Seed, Plant or Tree. So that in this Case too, Nature admits of Partnership; as likewise in a Building, of which the Ground and the Surface are Parts; for if it were moveable, the Owner of the Ground could have no Right, of which Opinion was Scaevola.3
XXIII. He who has another Man's Things in Possession, cannot claim the Profits of them, but may charge him with all the Expences that he is at about them.XXIII. Nor does Nature allow him, who has got another Man's Goods in his Possession,1 though it were honestly and without Fraud, to appropriate the Profits of them to himself, but only2 impowers him to charge the Cost he has been at, and the Pains he has bestowed upon them, and to deduct for these out of the Profits so arising. Yes, and to keep what he has still remaining by him, and not part with them at all, if3 Satisfaction be not made him some other Way.Edition: current; Page: [660]
XXIV. The same, I think,1 may be said of him, who is unjustly possess'd of another Man's Goods, where no penal Law intervenes.2 It is kind and humane,XXIV. And this he may do tho' he got them unjustly. (says Paulus the Lawyer) to have a Regard to the Expences, even of a Fellow who robs me; for he who demands his own, ought not to advantage himself by another's Loss.
XXV. That an actual Delivery is not required by Nature in the transferring of a Property.XXV. The last Way of acquiring a Property which is said to be by the Law of Nations, is1 a formal Delivery; but we have said above that a Delivery is not byEdition: 1738; Page: [261] the Law of Nature required2 in the transferring of a Property, which the Roman Lawyers themselves do own in Edition: current; Page: [661] some Cases; as when3 the Thing it self is given away, but the Profits reserv'd or when it is made over4 to him, who has it already in his Possession, or5 keeps it when he only borrow'd it; when a Thing is Edition: current; Page: [662] thrown6 amongst a Multitude for the first that catches it. Nay, a Man may transfer his Property even before he is seiz'd of it himself, as an7 Inheritance,8 Legacy,9 Things given to Churches or Places dedicated to pious Uses, or to Corporations, orEdition: 1738; Page: [262]10 in Consideration of a Maintenance, Edition: current; Page: [663] and11 Goods that we have agreed shall be shared and used in common.
XXVI. The Design and Use of what has been hitherto said.XXVI. These Things we have thought fit to observe, lest a Man often finding the Term of Right of Nations, among the Authors of the Roman Law, should presently imagine it to be such a Right as is unalterable, but that he might distinguish Laws purely natural, from those that are natural only in some certain Circumstances; and such Laws as are common to several Nations separately, from those which oblige, and are the Bond of all human Society; we must also observe, that if either by this Right of Nations, improperly so called, or by the Law of any one People, a Method of acquiring a Property be established, without any Distinction between Natives and Strangers,1 there also Foreigners shall enjoy the same Right, and if they be hinder'd in the obtaining of it, it is such a Wrong as may give a just Occasion for a War.
I. That Property and Jurisdiction cease when he who had the Right dies and leaves no Successor.I. How the Right of Property, and that of Sovereignty, are originally acquired, and how they may be transferred, has been sufficiently declared; let us now see how they may entirely1 cease. And first, that they may cease, by being abandoned and deserted, has been by the Way already shewn; for Where there is no Will, there is no Property. But there is also another Manner of their ceasing, when the Subject in which the Jurisdiction or Property is, ceases to be, I mean, when this happens before any Alienation is made either expressly or tacitly, as in Successions to an Intestate. And therefore,2 if a Person dies without any Signification of his Will, and leaves no Relations behind him, all the Right that he has dies with him too, and then his Slaves (unless some human Laws3 Edition: current; Page: [665] obstructEdition: 1738; Page: [263] it) shall be free, and the People who were under his Government shall be at their own Disposal, because they are not in their Nature Things that may be possessed, unless they voluntarily part with their Liberty; but all other Things belong to4 the prior Occupant.
II. So does the Right of a Family cease, if that Family be extinct.II. The same may be said,1 if a Family that had any Right, happens to be extinct.
III. 1. And the same is also to be understood if a People be extinct. Isocrates,1 and after him the Emperor2 Julian, said, that States were immortal;III. So does that of a People too, if they cease to be a People. that is, they might possibly prove so. Because the People is one of those Kind of Bodies that consist indeed of3 separate and distant Edition: current; Page: [666] Members, but are, however, united in Name, as having ἕξιν μίαν, one4 Constitution only, according to Plutarch; Spiritum unum, one Spirit, as5 Paulus speaks.6 Now this Spirit or Constitution in the People, is a full and compleat Association for a political Life; and the first and immediate Effect of it is the sovereign Power, the Bond that holds the State together, the Breath of Life, which so many thousands breath, as Seneca7 expresses it. For these artificial Bodies are like the natural. The natural Body continues Edition: current; Page: [667] to be still the same,8 tho' its Particles are perpetually upon an insensible FluxEdition: 1738; Page: [264] and Change, whilst the same Form remains, as Alphenus,9 from the Philosophers, argues.
2. And therefore that of Seneca, [Ep. 58.] where he says, No Man is the same when he is old as when he is young, is best interpreted as spoken of the Matter only.10 In the same Manner as11 Heraclitus said, (Plato cites him in Cratylus, and Seneca in the abovesaid Place) We cannot go down twice into the same River; which Seneca very judiciously explains, The Name of the River continues, tho' the Water is continually gliding along. So Aristotle, [3 Pol. 3.] comparing a River to the People, said the River retains the same Name, tho' some Water is always coming and some going. Nor does the bare Name only remain, but also that Disposition, which Conon defines,12 ἕξιν σώματος συνεκτικὴν, The Habit of the Body Edition: current; Page: [668] that keeps its Parts together. Philo,13 πνευματικὸν συνέχον, The spiritual Connection; and the Latins call it, The Spirit. Thus then a People, (according to Alphenus, and Plutarch, in his Treatise Of the late Vengeance of GOD) are reputed at this Day the same as they were a hundred Years ago, tho' there is not one of them now in Being, Μέχρις ἂν ἡ ποιον̂σα καὶ, &c. As long as that Society which constitutes a People, and binds them together, still subsists. Which are the very Words of Plutarch upon this Subject; and hence comes that Custom of Speech, that when we are addressing our Discourse to the People which are now living, we attribute to them what had happened to the same People many Ages before; as we may find both in profane Historians, and in the Holy Scriptures, Mark x. 3. John vi. 32. vii. 19, 22. Acts vii. 38. Matt. xxiii. 35. and Acts iii. 22. So in Tacitus, [Hist. Lib. 3.] Antonius Primus, serving under Vespasian, puts the Soldiers of the third Legion in mind, That under M. Anthony they had beat the Parthians, and under Corbulo the Armenians.
3. It was therefore more out of Passion than Truth, that Piso, in the same Tacitus,14 denies that the Athenians of his Time were really Athenians, because so many Slaughters had quite destroyed them, and says, that these were then only the Scum of other Nations. For that Conflux of Foreigners had perhaps diminished something of their antient Glory, but had not made them another People. Nor was he himself ignorant of this, when he objects against the same Athenians, how unsuccessful they had formerly been against the Macedonians, and how cruel and barbarous to the Subjects of their own State. But as an Alteration in small Parts does not make a People cease to be what they were a thousand Years ago, and above; so neither can it be denied, but that it is possible for a People to be ut-Edition: 1738; Page: [265]terly extinct. And this may be done two Ways, Edition: current; Page: [669] either when the Body of the People is destroyed, or when the Form or Spirit (which I mentioned) is intirely gone.
IV. Which happens when its essential Parts are gone. De Pallio.IV. The Body perishes either when all its Members, without which it cannot subsist, are at once destroyed; or when its1 Frame and Constitution is dissolved and broken. To the first we may refer those People who are swallowed up by the Sea, as the People of Atlantica, according to Plato;2 and some others, mentioned by Tertullian; and also those who have been devoured by an Earthquake, or by the Opening of the Earth: You have Instances of such in Seneca,a and Ammianus Marcellinus, and in other Authors; and those who have voluntarily destroyed themselves, as the Sidonians and Saguntines. Pliny says there were fifty-three Nations of old Latium utterly lost, without the least Sign of them remaining. But what, if of such a People so few continue living, as that they cannot make up a People? Why in this Case they retain that Property which3 that People had as private Persons; but not what belonged to them as a People: And this is also to be understood of any4 Community.Edition: current; Page: [670]
V. When the whole Body of the People is subverted.V. The Frame and Constitution of the Body is dissolved and broken, when the Subjects, either of their own Accord are disunited on the Account of a Pestilence, or a Sedition,1 or are by Force so scattered, as that they cannot more re-unite, which often happens in War.
VI. When that Form is lost that makes them a People.VI. The Form of a People is gone when they lose all or some of those Rights they had in common; and this is done, either when every single Person is brought into Slavery, as the1 Mycenaeans, who were sold by the Argives; the Olinthians,2 by Philip; the Thebans,3 by Alexander; and the4 Brutians, made publick Slaves by the Romans: Or when, tho' they retain their personal Liberty, they are yet utterly deprived of the Right of Sovereignty. So Livy tells us, that the Romans were willing that Capua should be inhabited as a Town, but that there should be no Corporation, no Senate, no Common-Council, no Magistrates, no Jurisdiction, but a dependent Multitude,5 and that a Governor should be sent from Rome, toEdition: 1738; Page: [266] dispense Justice among them. And therefore Cicero, in his first Edition: current; Page: [671] Oration to the People against Trullus, says, that Capua had6 not so much as the Shadow of a State left. The same may be said of those reduced into the Form of a Province, and of them who are subjected to another People, as Byzantium was to Perinthus,7 by the Emperor Severus; and8 Antioch to Laodicea, bya Theodosius.
VII. But not by only changing of Place. Flor. 2. 15.VII. But if the People shall only leave the Place, either of their own Accord, through Famine, or any other Misfortune, or by Compulsion, as the1 Carthaginians, in the third Punick War; if the Form, I mentioned, continue, they do not cease to be a People, [[2]] much less if only the Walls of the City be thrown down. And therefore, when the Lacedemonians refused to admit the Messenians to swear to the Peace of Greece,Plut. in Ages. because their Walls were demolished, it was carried against them in the general Assembly of the Allies.
VIII. Nor upon the Change of Government; where also of the Rank that is due to a new King, or a People lately become free.VIII. 1. Nor does it signify much, under what Government they are, whether Monarchical, Aristocratical, or Democratical. For the1 Romans were the same People under Kings, Consuls, and Emperors. Nay, tho' Edition: current; Page: [672] the Government be never so absolute, yet the People are the same they were, as when they were free, whilst he who rules, rules as the Head of that People, and not as the Head of another. For that sovereign Power which is in the King as Head, rests still in the People as in the Whole, whereof the Head is a Part: So that if the King, being elective, should die; or if the Royal Family be extinct, the Sovereignty reverts to the People, as we have shewed already. Neither can that of Aristotle be objected against me, who denies that to be the same State, where the Form of Government is changed, no more than the Musick is the same, when it is altered2 from a Doric to a Phrygian Air.
2. For we must know that there may be several Forms of one and the same artificial Thing, as a Legion has one Form of3 Command, and another of4 Engagement. Thus one Form of a State consists in the Community of Rights and Sovereignty, and another in the mutual Relation which the Parts between themselves have, as well those that govern, as those that are governed. This is the Politician's Business, and that the Lawyer's: And this is what Aristotle understood, when he added, But whether upon the Change of Government Debts are to be paid or not,Pol. 3. 3. is5 another Consideration; that is, a Consideration belonging to another Science; which Aristotle would not confound with Politicks, lest what he blamed in others he should be guilty of himself, Μεταβαίνων ἐκ γένους εἰς γένος, Skipping from one Subject to another.Edition: current; Page: [673]
3. A Debt contracted by a free People, ceases not to be a Debt, because they are at present under a King; for the People are the same, and they still retain a Property in those Things that belonged to them as a People, and hold the Sove-Edition: 1738; Page: [267]reignty too, tho' it be not exercised now by the Body, but the Head. And hence we have an Answer ready to that Question which does sometimes actually arise concerning his Place in6 an Assembly of Confederates, who has newly taken upon him the Supremacy over a People who were before free; and that is, the same Place or Rank that the People themselves were entitled to; as Philip of Macedon7 took the Place of the Phocians in the Council of the Amphyctyones. So on the other Hand, the Place or Rank which formerly belonged to the King, the free People shall have.
IX. What if two Nations be united?IX. But1 if two Nations be united, the Rights of neither of them shall be lost, but become common, as the2 Sabins first, and afterwards the Albans, were incorporated with the Romans, and so were they made one State, as Livy (Lib. 1.) expresses it. The same may be also judged of Kingdoms which are really and truly united, and not only by a Treaty of Alliance, or because they have but one Prince.
X. What if the same People be divided?X. On the contrary, it may so fall out, that what was before but one State may be divided, either by mutual Agreement, or by Force of Arms, as the Persian Empire was among Alexander's Successors. When this happens there will be several Sovereignties in the Room of one, which shall each of them possess its own peculiar Right and Authority over its respective Parts; but if any Thing were held in common, it shall either be Edition: current; Page: [674] enjoyed in common, or proportionably shared among them. Hither also may be referred that Separation which is made, when People by one Consent go to form Colonies.1 For this is the Original of a new and independent People, Ὀυ γὰρ ἐπι τω̂ δον̂λοι, ἀλλ' ἐπι τῷ ὅμοιοι εἰ̂ναι ἐκπέμπονται, [Lib. 1.] For they are not sent out to be Slaves, but2 to enjoy equal Privileges and Freedom, says3 Thucydides. And the same Author tells us, that a second Colony was dispatched by the Corinthians to Epidamnus, ἐπὶ τῃ̑ ἴσῃ καὶ ὁμοία, All upon the very same Foot. And King Tullius, in Dionysius Halicarnassensis, [Lib. 3.] says, Τὸ δε ἄρχειν ἐκ παντὸς, &c. For our Part we look upon it to be neither Truth nor Justice, that Mother Cities ought of Necessity, and by the Law of Nature, to rule over their Colonies.
XI. To whom now do those Things and Dominions belong which were once under Roman Jurisdiction, where it does not appear that they have been alienated.XI. 1. There is also this famous Question, among Historians and Civilians, to whom now those Things and Dominions belong, that were once Dependencies on the Roman Jurisdiction;1 several are for having them Edition: current; Page: [675] belong now to the Kingdom,Edition: 1738; Page: [268] as it was formerly stiled, or to the Empire of Germany, (it is no Matter which Name you call it by) and pretend I don't know what Substitution of this Empire in the Room of that; when yet2 it is sufficiently known, that the High-Germany, that is, what is on the other Side of the Rhine, was all of it, the greatest Part of the Time, without the Compass of the Roman Empire. And for my Part, I think, that we ought not to presume any such Change, or transferring of Right, unless upon very sure and good Grounds. Wherefore I say, that the Roman People are now the same3 they were heretofore, tho' mixed with Foreigners; and that the Empire still remains in them, as in a Body, where it resided and subsisted. For whatever the Roman People had a Right to do formerly, before they had Emperors, they had a Right Edition: current; Page: [676] to do the same4 upon the Demise of any Emperor, before the Successor was established. And the Election too of an Emperor belonged to the People, and was frequently made, either5 by the People alone, or by the Edition: current; Page: [677] Edition: 1738; Page: [269]Senate; as for those Elections which were made sometimes by one Legion, sometimes by another, they were not valid by any Right that the Legions had, for how is it to be imagined6 that a vague Name, like that, could have any Right, but by the Approbation of the People?
2. Nor does it at all argue to the contrary, that by the Constitution of7 Antoninus, all who lived within the Dominion of the Roman Empire, were considered as Roman Citizens. For by that Constitution, the Subjects of the Roman Empire did only obtain such Rights as were formerly indulged their8 Colonies,9 municipal Towns, and Edition: current; Page: [678] 10 Provinces, where the People were dressed after the Roman Fashion, that is, they were made capable of receiving the Honours, and11 enjoying the Privileges of real Citizens of Rome; not that12 the Spring and Original of Empire was in any other People, as it was in the People of the City of Rome; this was not in the Power of the Emperors to grant, who could not change the Manner and Title of Sovereignty. Nor did it at all lessen13 the Right of the Roman People, that their Emperors afterwards Edition: current; Page: [679] chose to keep their Court at Constantinople, rather than at Rome; for even then also the Election, which was made byEdition: 1738; Page: [270] such of their own Body as dwelt at Constantinople, (whence Claudian14 calls the Constantinopolitans, Romans) was to be ratified by all the People; who preserved a very considerable Mark of their Right,15 in the Prerogative of their City, and the Honour of their16 Consulate, and in several other Instances: And therefore all the Right that those, who lived at Constantinople, could possibly have in electing an Emperor, depended altogether on the Will of the People of Rome; and when17 Edition: current; Page: [680] they,18 contrary to the Mind and Custom of the Roman People, had submitted to the Dominion of a Woman, the Empress Irene, to whom they had taken an Oath, as Zonaras has it; not to mention any19 other Edition: current; Page: [681] Reasons, they justly revoked that Concession, which they had either20 expressly or tacitly made, and by themselves chose an Emperor, and proclaimed him such, by the Mouth of their21 Chief-Edition: 1738; Page: [271]Citizen, that is, their Bishop; as in the Jewish State, the first Person, when there was no King, was their22 High-Priest.
3. Now this Election was personal23 in Regard to Charlemagne, and some of his Successors,24 who very carefully distinguished their Right Edition: current; Page: [682] of Sovereignty over the Franks and Lombards,25 from that which they had over the Romans, as acquired by a new Title.26 But the Nation of the Franks being afterwards divided into the Western, who now possess France, and the Eastern, who have Germany, (Otho Frisingensis calls them the two Kingdoms of the Franks) when the Eastern Franks began to elect themselves Kings (for tho' till that Time the Succession to the Crown of the Franks was, as it were27 agnatic, yet it did not depend so much upon any fixed and certain Law, as upon the Choice of the People) the Romans, that they might have a stronger Assistance and Security, thought fit not to chuse a King of their own, but to take him whom the Germans had chosen, but yet with the Reserve28 of a Right, either to Edition: current; Page: [683] approve or disapprove the Election, so far as that Affair had any Relation to them.
4. And this Approbation of theirs used to be declared by their Bishop, and was solemnly notified by the Ceremony of a particular Coronation. And therefore, tho' he who is elected by the seven Electoral Princes, who represent the whole Body of the Germans, has an undoubted Right to reign over the Germans, according to their own Customs; yet is he not but by the Approbation of the Roman People made King or Emperor of the Romans, or as Historians often call him,29 KingEdition: 1738; Page: [272] of Italy; and by Vertue of that Title,30 he becomes Lord of all that did formerly belong31 to the Roman People, and has not passed from them to32 the Jurisdiction of any others, either by Treaties, or by Seizure, upon the Presumption of its being abandoned, or by Conquest. From whence we may easily apprehend by what Right the Bishop of Rome, when the Edition: current; Page: [684] Throne becomes vacant,33 grants the Investiture of the Fiefs of the Roman Empire, because he holds the prime Rank among the Roman People, who are at that Time intirely free and independent. For it is34 usual to have what relates to a whole Body, executed by the principal Person, in the Name of that Body, as we have elsewhere said. Nor is it ill observed by Cynus and Raynerius, that if the Roman Emperor, by Sickness or Captivity, be incapable of discharging the Offices of his Government,35 it is in the Power of the People of Rome to appoint one in his Stead.
XII. Of the Right of Heirs.XII. That the Person of the Heir is to be looked upon to be the1 same as the Person of the Deceased, in Regard to the Continuance of Property, either publick or private, is an undoubted Maxim.
XIII. Of the Right of a Conqueror.XIII. But how far the Conqueror may succeed to the Conquered, shall be explained below, when we treat of the Effects of War.
I. The Obligation to return what is another's to the Owner, from whence, and what Manner of Obligation it is. We are obliged to restore the Things we have by us, and to do what we can that the Owner may have them again.I. 1. Having declared what Right we have over Things or Persons, as much as serves to our Purpose, let us now see what Obligation to us does from thence arise. Now this Obligation arises either from1 Things now in Being (un-Edition: 1738; Page: [273]der the Name of Things, I shall comprehend the Right we have over Persons too, so far as we can receive any Benefit from it) or from Things not in Being.
2. From Things now in Being this Obligation naturally arises,2 that he who has in his Hands what belongs to me, should endeavour all he Edition: current; Page: [686] can, to have it come into my Possession; all he can, I say, for he is not obliged to an3 Impossibility, nor to restore it at his own Charge; but he is obliged to signify it, that I may recover my own if I please. For as there was an Equality to be observed in that State, where all Things were common, that one as well as another might have the Liberty of using what was common; so as soon as ever Property was introduced, there was a Sort of mutual Engagement,4 tacitly agreed on among the Proprietors, that if one Man should get another Man's Goods, he should be obliged to restore them to the Owner; for if the Power of Property reached no farther than to have a Thing restored upon demand, Property would have been too weakly secured, and the keeping of it too expensive.
3. Neither is it here considered, whether a Man has fairly or fraudulently come by a Thing; for an Obligation5 which arises from a Crime, is different from that which arises from the Thing itself. Thea Lacedemonians had cleared themselves indeed of the Crime of breaking the Articles, by condemning Phaebidas, who, contrary to their Treaty with Edition: current; Page: [687] the Thebans, had seized the Fort of Cadmea; but they were6 charged with, and as much guilty of In justice in keeping the Place, notwithstanding all this, still in their Hands. And this, as it was a very singular Injustice, so was it punished by a very singular Providence of GOD, as7 Xenophon has remarked. Thus Cicero8 blames M. Crassus, and Q. Hortensius, for holdingEdition: 1738; Page: [274] Part of an Estate by Vertue of a forged Will, tho' the Will was made and drawn up without any Fault of theirs.
4. But because this Obligation, as by an universal Contract, binds all Men, and creates a certain Right to the Owner of the Thing; hence it is, that all particular Contracts, as being made afterwards, do from thence Edition: current; Page: [688] receive an Exception. And this gives us some Light into that Passage ofb Tryphoninus, A Rogue deposites what he had stole from me, in Seius 's Hands, who knew nothing of the Fellow's Villany; now should Seius restore it to the Thief, or to me? If we respect the Giver and the Receiver only, it is but just to restore the Thing entrusted, to the Person who delivered it. But if we regard the Equity of the whole Affair, and the Quality of all the Persons interested in it, the Thing ought to be restored to me, from whom it was taken by a detectable Action. And then he very judiciously adds, And I agree that it is Justice to give every Man his own, yet in such a Manner as not to keep from any other Person what he has a juster Title to. Now he must needs have the juster Title, who claims by a Right as antient as Property itself, as we have just now shewn; whence it also follows, (which is in the same Tryphoninus) that he who ignorantly takes that from another in Trust, which he afterwards perceives is his own, is not obliged to restore it. And the Case which the same Author puts just before,9 concerning Things deposited by him, whose Goods are confiscated, is better determined by this Principle, than what he there mentions about the Usefulness of Punishments.
5. For it is nothing to the Essence of Property, whether it arises from the Law of Nations, or from the Civil Law; for it is always accompanied with its natural Effects, whereof this is one, that every Man who is possessed of another's Goods, is bound to restore them to the right Owner. And this is whatc Martian means, when he says, that by the Right of Nations a Man may bring his Action at Law,10 and recover his Goods from the unjust Possessors of them. Hence comes that ind Ulpian, that he who finds what belongs to another, is in so particular a Manner obliged to restore it, that he ought not so much as to demand ἕυρετρον, Edition: current; Page: [689] any Thing for finding it. All the Profits of another's Goods are likewise to be returned, with a Deduction only of reasonable Charges.
II. Where we have not the Things by us, or they are not in Being, we are obliged to restore what we have gained from them; this illustrated by several Examples.II. 1. Of Things not still remaining, or in Being, Mankind have thought fit, that if you have gained by what is mine; whilst I am forced to go without it, you are bound to refund as much as you have gained by it,1 because you have so much the more for what you had of mine, and I so much the less for want of my own;a whereas the very Design of Property was to preserve an Equality, that is,Edition: 1738; Page: [275] that every Man might enjoy his own. It is against Nature, saysb Cicero, for a Man to make an Advantage of another's Loss. And in another Place, Nature cannot bear that we should raise our Fortunes; and our Wealth,2 upon the Spoils and Ruin of other People.
2. There is so much Equity in this Maxim, that the Lawyers have made Use of it to decide many Cases on which the antient Laws had not prescribed any Thing;3 and they have always appealed to this Principle, as to a Rule whose Justice is of the greatest Certainty and Evidence. A Contract made by a Slave, who is employed as a Factor,c shall oblige his Master, unless he has before given publick Notice, that no Body should trust him. But if such publick Notice be given, and the Slave has any Edition: current; Page: [690] separate4 Interest in that Contract, or if it turns to his Master's Advantage, such Notice shall be deemed a Fraud. For I think, says Proculus, that any Man who would gain by another's Prejudice, acts fraudulently, where the Word Fraudulently implies, whatever is done contrary to natural Right and Equity. He, who by the Mother's Order gives in5 Bail for the Son's6 Defendant, can have no Action7 of Commission against the Defendant, because indeed he did not properly act for him, but only engaged himself on the Account of the Mother. But however,8 according to Papinian's Judgment, an Action (an9 indirect one, if I am not mistaken) for Business done, shall lie against the Defendant, because it is with the Security's Money that he is discharged.
So the Wife who gives her Husband Money, which she may by Law demand again, has a personal Action of Recovery against him, or a real indirect Action upon the Thing that was purchased10 with that Money: Because, says Ulpian, it cannot be denied, but that the Husband is the richer for it; and the Question is, what Goods he possesses which belong to his Wife.Edition: current; Page: [691]
So again, if you have spent11 any Money which my Slave has stolen from me, thinking it to be his own, I have a personal Action of Recovery against you, as having acquired the Possession of my Goods without a just Title. Minors are not, according to the Roman Laws, obliged to pay what they borrow; but yet if the Minor be the richer for it,12 an indirect Action shall lie against him.
Thus, if another Man's Goods are pawned, and the Creditor sells them, the Debtor is discharged from the Creditor, to the Value of the Money received forEdition: 1738; Page: [276] them; because, says Tryphoninus,13 be the Obligation what it will, since the Money raised was upon the Occasion of the Debt, and by Means of the Debtor, it is more equitable that it should advantage the Debtor, than be to the Profit of the Creditor; but the Debtor shall at the same Time be obliged to indemnify the Buyer, that he may not gain by another's Loss. And if the14 Creditor has taken more Rents from the Possessor than the Interest of the Debt amounts to, he must allow them as received in Part of Payment of Principal.Edition: current; Page: [692]
So if you have dealt with my Debtor, not as he is indebted to me, but thinking him to be so to some other Person, and borrow15 my Money of him, you are obliged to pay me; not because I lent you any Money, (for this could not be done but by mutual Consent) but because my Money is in your Hands, it is but just and reasonable that you should restore it me.
3. Our modern Interpreters of Law and Right, do very judiciously extend these Decisions to other like Cases: As for Instance, when the Effects of a Person, who is cast by Default, but who might put in an Exception, are offered to sale, they say, he ought to be admitted to recover the Money his Goods were sold for; and when one lends a Father Money for the Maintenance of his Son, if the Father becomes insolvent, he may have an Action against the Son, provided that this Son is possessed of any Thing that was his Mother's.
These two Rules being perfectly understood, there will be no Difficulty in answering such Questions as are often proposed, both by Lawyers and Casuists, in this Affair.
III. He who has honestly got what is another's is not obliged to restore it, if it perish, or be lost.III. For in the first Place, it is plain from hence, that he who comes by a Thing honestly, (for he who comes by it otherwise is inditable, not only for the Thing it self, but punishable for his having it) is not obliged to make any Restitution, if1 the Thing be gone; because he neither enjoys the Substance, nor any Benefit by it.Edition: current; Page: [693]
IV. But he is obliged to restore the Fruits or Produce of it that remain or are in Being.IV. Secondly, That whoever has come honestly by a Thing, is obliged, however, to restore all the Produce of it that he has still remaining; the Produce, I mean, of the Thing; for as to the Produce of his own1 Labour and Industry, tho' without that Thing there had never been that Produce, yet does it not any Ways belong to the Thing itself. The Reason of this Obligation arises from Property, for he who is the Owner of the Thing, is naturally the Owner of all its Produce.
V. Even those that are spent and wasted, unless it appears, that had he not had 'em by him he would have had no Occasion to have spent such Things. Suet. c. 16.V. Thirdly, Whoever has honestly got what is another's, is obliged to give Satisfaction, not only for the Thing itself, but also for the Produce of it, tho' that Produce1 be spent and gone, if it appear that he must otherwise have spent andEdition: 1738; Page: [277] consumed as much of his own; because he is looked upon to be so much the richer for it. Thus is Caligula, in the Beginning of his Reign, highly commended,2 because to those to whom he restored their Crowns, he also restored the Revenues of them that were in Arrears.
VI. But not those which he neglected to take the Advantage of.VI. Fourthly, That he is not obliged to make good the Fruits, or Produce, which he neglected to take, because he has neither the Thing itself, nor any Thing else in its Room.Edition: current; Page: [694]
VII. That such a one is not obliged to make Restitution for what he has given away; this with a Distinction.VII. Fifthly, If such a Possessor shall give to another what was given him, he is not obliged to satisfy the Owner for it, unless it appear, that if he had not given that, he must have given as much some other Way; for then the sparing of his own Stock will be reckoned a Matter of Gain and Advantage to him.1
VIII. Nor if he only sells what he bought; this with a Distinction too.VIII. Sixthly, If he bought what he has sold, he is obliged to return no more than the Overplus of what he sold it for; but if what he sells1 was given him, he is obliged to restore what he gets for it, unless, perhaps, he has squandered away the Money, which otherwise he would not have been so lavish of.
IX. When he who fairly bought what is another's, may claim all, or part of what it cost him.IX. 1. Seventhly, That another Man's Goods, tho' honestly paid for, are to be restored, nor can he demand a Reimbursement of his Charges:1 To which Rule I think it proper to add this Exception,2 unless where Edition: current; Page: [695] the Proprietor could not, in all Probability, have recovered the Possession of his own, without some Expence; as, suppose it was in the Hands of Thieves and Pyrates.3 For in this Case, whatEdition: 1738; Page: [278] the Owner would have gladly spent to have it again, may very fairly be deducted. Because the actual Possession, especially when not to be recovered without Difficulty, is capable of being rated at a certain Value, and the Proprietor, when reinstated in it, is judged to be on this Account proportionably the richer. And therefore, tho' according to the ordinary Course of the Law, it signifies nothing to pretend to buy what is already our own,4 all such Bargains being entirely void; yet does Paulus affirm,5 that such a Purchase is binding, if it be first agreed upon, that we shall pay for the Edition: current; Page: [696] Possession of what another has of ours in his Hands. Nor do I think it at all material here, whether the Thing was bought6 with a Design to restore it to the Owner, in which Case some are of Opinion, there does an Action for Cost arise; but others deny it, since an Action for Business done results from the Civil Law, and has none of those Foundations7 upon which Nature builds an Obligation. Whereas our Inquiry here is after what is natural.
2. Not unlike this is what Ulpian writes,8 of Expences laid out upon a Funeral, that a prudent and equitable Judge does not observe there what is strictly performed, and what the Rigour of the Law would allow, but administers Justice with a greater Liberty, since the Nature of the Action9 will indulge him in it; and what he says in another Place, If a Man has done my Business, not so much with a View to serve me, as for his own Profit, and has been at some Charges about it, he shall have his Action10 against me, not for what he laid out, but for what Advantage I have made of it. Thus too, the Owners of such Goods11 as in a Storm Edition: current; Page: [697] are thrown over-board, to lighten the Ship, come in for a Share with them whose Effects were by that Means preserved: Because he who has saved what would otherwise have been lost, seems to be so much the richer for it,
X. If I buy what does not belong to him who sells it, I must not return it to him, but to the Owner.X. Eighthly, He who buys another Man's Goods, cannot return them upon the Hands of the Seller, and demand his Money back, because as soon as ever those Goods came into his Power (as we have said already) there commenced in him, an Obligation to restore them to the Owner.1
XI. If I have got a Thing in my Hands, and do not know the Owner, I am not obliged to part with it to any Body.XI. Ninthly, Thus he who has got a Thing, and knows not the Owner of it, is not obliged by the Law of Nature to give it to the Poor,1 tho' this would be a very commendable Action, and what is a Custom in many Places very wisely established. The Reason is, because by the Laws of Property, none but the Proprietor can claim a Right. And to the Party here concerned, the not appearing of any Owner is the same as if there really were none.
XII. If I take a Fee upon a dishonest Account, or for doing a Service that I am obliged to, I am not by the Law of Nature bound to restore it.XII. Lastly, That by the Law of Nature, whatever is taken either upon a dishonest Account,1 or for an honest Piece of Service, which, however, he was of himself obliged to do, is not to be restored, tho' such a Restitution is what someEdition: 1738; Page: [279] Laws have very justly enacted. The Reason is, because no Body is bound to part with any Thing, unless it belongs to some other; but here the Property is entirely transferred, by the voluntary Act of the former Owner.2 The Case indeed will be otherwise, if there be any Vice in the Manner of taking it; as for Instance, if we Edition: current; Page: [698] extorted it by Threats, or by Violence: For this is another Principle of Obligation, not to our Purposea now.
XIII. The Opinion, that the Property of Things which consist of Weight, Number, or Measure, may pass without the Consent of the Owner, refuted.XIII. Let us also add, that Medina is mistaken when he asserts, that the Property of other People's Goods may pass to us without the Owner's Consent, provided they are such Things as are usually valued by Weight, Number, and Measure. Because, tho' Things of this Nature admit of an Equivalent; that is, may be returned by something of the same Kind; yet, even in this Case, Consent must be first had; or there must, by Vertue of some Law or Custom, be Room to believe that there has been such a Consent, as in what we borrow; or when a Thing is spent and consumed, and so can not be actually produced. But without such a Consent, either expressed or presumed, and excepting the Case of Impossibility, just mentioned, such Equivalents are not to be allowed of.1
I. The Opinion which maintains that no Promises are naturally obliging, refuted.I. 1. We now come in the Order of our Subject1 to treat of Obligations arising from Promises; where we presently meet Franciscus Connanus, an eminent Scholar, opposing us. He maintains this Opinion, that those Agreements which include no Contract2 are not binding, either3 by the Law of Nature, or Nations; and yet he owns, that they may, however, be laudably performed, if the Thing promised be such as might, had no Promise ever been made, honestly, and conformably to the Rules of some Virtue, be done.Edition: current; Page: [700]
2. To confirm his Opinion, he not only brings the Testimony of some Lawyers, but also these Reasons. First, That he who believes a Man who promises rashly, and without any Cause, is as much to blame, as he who himself makes such a vain Promise.4 Secondly, That it would be very dangerous to most Men's Fortunes, if they were obliged to perform all their Promises, which they generally make more out of Ostentation, than a real Intent to perform them. And lastly,Edition: 1738; Page: [280] That it is reasonable to leave some Things to every Man's Honour, and not to confine him to a Necessity of Performance. It is reputed base not to perform what we have promised, not that it is really unjust, but because it argues a Lightness in the Promiser. He also urges the Testimony of Cicero,5 who said, that those Promises are not to be performed, which are of no Advantage to them who receive them, or are more prejudicial to us, than of Service to them. But if the Thing be not intire,6 he would have the Party not engaged to execute what he had promised, but only to make the other Person Amends for his Disappointment. And as for Agreements that are not of themselves obligatory, that they receive their Force, either from the Contracts in which they are inserted, or to which they are joined, or from the actual Delivery of the Thing promised: Which produces on the one Side Actions, on the other Exceptions, and a prohibiting any future Claim to what has been so delivered. And that such Agreements as do oblige according to the Laws, as those that are made by Way of Stipulation in Form, and some others, receive all their Power from the Benefit of the Laws, whose Efficacy is such, as to make that which in itself is only honest or reputable, to be also necessary and binding.
3. But this Opinion (of Connanus) taken so generally, as he expresses it, cannot be consistent. For, First, it would thence follow, that the Articles of Agreement made between Kings and People of divers Nations, so long as there was nothing performed on either Side, were of no Force, Edition: current; Page: [701] especially in those Places where there are no set Forms of Treaties or Contracts. Nor indeed can any Reason be given, why the Laws, which are, as it were, the common Covenant and Promise of the People7 (and so they are called by8 Aristotle and9 Demosthenes) should give such an obliging Force to Agreements; and yet, that a Man's own Will, endeavouring by all Means possible to oblige itself, cannot do the same Thing, especially in a Case where the Civil Law offers no Obstruction. Besides, since the Property of a Thing may be transferred by the bare Will, sufficiently declared, (as we have said before) why may we not in the same Manner transfer to one the Right, either of requiring us to transfer to him the Property of a Thing, (which is less than the actual Acquisition of the Right of Property itself) or of requiring us to do something in his Favour, since we have as much Power over our Actions as we have over our Goods?
4.10 And to this do wise Men agree; for as the Lawyers say, Nothing is more natural,11 than that the Will of the Proprietor, desiring to transfer Edition: current; Page: [702] his Title to another, should have its intended Effect: In like Manner it is said,12 that nothing is so agreeable to human Fidelity, as to observe whatsoever has been mutually agreed upon. So the Edict for Payment of Money promised,13 tho' there was no otherEdition: 1738; Page: [281] Reason alleged why it should be due, but the free Consent of the Promiser, is said to be agreeable to natural Equity. And Paulus, the Lawyer, says,14 that he does naturally become a Debtor, who by the Law of Nations is obliged to pay, because we relied upon his Credit. Where this Word Obliged implies a certain moral Necessity, or an indispensible Obligation. Neither may we allow what Connanus says, that we are then reckoned to rely upon a Man's Credit, when the Thing promised ceases to be intire, or has something of it already performed by one Party. For Paulus, in that Place, was treating of a personal Action, brought for a Thing paid where it was not due,15 which is entirely void, if the Payment was made upon any Agreement whatever.16 Because then, even when the Money was not yet laid down, and consequently, when the Thing was as yet entire, one was obliged by the Laws of Nature and Nations, to discharge one's Promise; tho' the Civil Law, to prevent the Occasions of litigious Suits, gives no particular Encouragement to demand it.Edition: current; Page: [703]
5. And M. Tully attributes so great a Power to Promises,17 that he calls Faithfulness the Foundation of Justice; which also18 Horace calls The Sister of Justice; and the Platonists often term Justice, Ἀλήθειαν, Truth; which Apuleius19 has translated Fidelity, or the being as good as one's Word. And Simonides20 makes Justice to consist not only in returning what we have received, but also in speaking Truth.
6. But to make this plainer, we must carefully distinguish the three Degrees or Manners of speaking about Things future, which either really are, or at least are thought to be in our own Power.
II. A bare Assertion does not lay one under an Obligation.II.1 The first Degree, or Manner, is a bare Assertion, signifying what we intend hereafter, in the Mind we are now in. And that this Declaration may be innocent, it is required, that we sincerely express what at that present Time we think, but not that we continue in that Thought. For the Mind of Man has not only a natural Power,2 but also a Right to alter a Design; and if there be any Fault in the Change, as it often happens, that is not essential to the Change, but proceeds from the Subject of it, because perhaps the first Opinion was the better.
III. That an imperfect Promise does naturally oblige, but no Right arises from thence to the Person who receives it.III. The second Manner, when the Will determines itself for the Time to come, is by giving some positive Token, that sufficiently declares the Necessity of its Perseverance. And this may be called an imperfect Promise,1 which setting aside theEdition: 1738; Page: [282] Civil Law, obliges either absolutely Edition: current; Page: [704] or conditionally; but yet gives no Right, properly so called, to him to whom it is made. For it happens in many Cases, that we may lay ourselves under an Obligation, and at the same Time give no Right to any other over us,2 as appears in the Duties of Charity and Gratitude; and of this Kind is the Duty we are talking of, of religiously keeping our Words. And therefore no Man can by the Law of Nature, from such a Promise demand or detain what belongs to the Person so promising. Nor can he be compelled by that Law to perform what he has promised.
IV. What that Promise is from whence a Right to another does arise.IV. A third Degree is, when to this Determination we add a sufficient Declaration of our Will to confer on another a real Right of demanding the Performance of our Promise. And this is a compleat Promise, as having the same Effect as the Alienation of a Man's Property. For it is either an Introduction to the Alienating of a Thing, or the Alienation of some Part of our Liberty. To the former belong our Promises to give, to the latter our Promises to do something. And of this the Scriptures give us a notable Proof, where they tell us, that1 GOD himself, who Edition: current; Page: [705] cannot be obliged by any Law imposed by another, would act contrary to his own Nature, not to perform what he promised, Neh. ix. 8. Heb. vi. 18. and x. 23. 1 Cor. i. 9. and x. 13. 1 Thess. v. 24. 2 Thess. iii. 3. 2 Tim. ii. 13. whence it is plain, that to perform Promises is a Duty arising from the Nature of immutable Justice, which as it is in GOD, so it is in some Measure common to all such as have the Use of Reason.2 Add to this Solomon's Judgment in the Affair, Prom. vi. 1, 2. My Son, if thou hast been Surety for thy Friend, thou hast tied up thy Hands to a Stranger, thou art ensnared by the Words of thy Mouth, thou art taken by the Words of thine own Mouth. And from hence it is, that a Promise is called by the Hebrews אסדה, a Bond, or a Chain, and is3 compared to a Vow, Num. xxx. 4, 5, 6. And so is the Original of the Word ὑπόσχεσις, observed by Eustathius, upon the second of the Iliad, Ἁλέσκει γὰρ πω̂ς καὶ κατέχει τὸν ὑποσχόμενον ὁ τὴν Ἐπαγγελίαν δεξάμενος, He who receives the Promise,4 seizes upon, and binds the Promiser: Which is very well expressed by Ovid in his second Book of Metamorphoses, where the Promiser says to the Promised, Vox mea facta tua est, My Word is become yours.5Edition: current; Page: [706]
2. These Things being premised and understood, we may easily answer Connanus's Arguments. For what the Lawyers say of abare Promise, has Respect only to6 what was introduced by the Roman Laws, which made a Stipulation7Edition: 1738; Page: [283] in Form, an undoubted Sign of a deliberate Edition: current; Page: [707] Edition: current; Page: [708] Mind. Nor do we deny but that such Laws are in Force among other Nations. What Law does oblige us to perform a bare Promise? says Seneca, speaking of a human Law, and8 a Promise under no solemn Form.Edition: 1738; Page: [284]
3. But there may be naturally other Signs of a deliberate Mind, besides this Stipulation, or any other Thing like it, which the Civil Law requires to create an Action. And indeed, as for that which is made without Deliberation, we do not allow it to have any Power of obliging at all, as Theophrastus9 has observed in his Book about Laws. Nay, and as to what is done deliberately, but not with an Intent thereby to transfer a proper Right to another, we deny that from thence there arises naturally a Right to any Man to demand any Thing of us in Strictness, tho' we acknowledge, that we ought, not only for our Reputation, but also by a Sort of moral Necessity, to perform what we have thus promised. As to that Passage of Cicero, we shall treat of it below, when we come to speak how Agreements are to be understood; but now let us see what Conditions are required to make a Promise perfect.Edition: current; Page: [709]
V. First, to make a Promise compleat, it is required that the Promiser have the Use of his Reason; where the Law of Nature is distinguished from the Civil Law in the Case of Minors.V. 1. First, It is required that the Promiser should have the Use of his Reason;1 therefore the Promises of Madmen, Ideots, and Infants are void. But the Case of Minors is not the same; for tho' they are supposed not to have a perfect Judgment, as are also Women, yet that is not always so, nor is it of itself sufficient to render their Acts invalid.2
2. But at what Years a Child comes to the Use of Reason, cannot be certainly determined; but must be judged either from his daily Actions, or from the general Customs of every Nation. Among the Hebrews,3 a Lad after thirteen Years of Age might oblige himself by any solemn Promise, and a young Woman after twelve. In other Places the Civil Law, for very good Reasons, declares many Promises of Pupils and Minors void, and that not only among the Romans, but the Grecians too, as is observed by Dion Chrysostom, in his seventy-fifth Oration.4 And some they qualified by the Benefit of a Restitution; but these are the peculiar Effects of the Civil Law, and therefore have nothing common to the Law of Nature and Nations, unless it be that where they are received, there it is natural that they should be observed.5 And therefore, if a Foreigner makes a Bargain with a Native, he shall be obliged by the Laws of his State, because he who enters into a Contract in any Place, is a Subject for the Time being, and must be obedient to the Laws of that Place.
3. But it is quite a different Case, if the Bargain was made either upon the Seas, or in a desert Island, or by Letters between Persons at a Distance. For such Contracts are to be regulated only by the Law of Nature; as also such Agreements as pass between Sovereigns, considered as such. Edition: current; Page: [710] For what they do in a private Capacity may by the Laws be made void,6 when it is in their Favour, but not when they will be Sufferers by it.
VI. Whether a Promise given thro' Mistake does naturally oblige us, and how far it does so.VI. 1. As for a Promise made by an Error or Mistake,1 the Point is more intricate and perplexing. For it is usual to distinguish an Error, which concerns the Substance of the Thing, from that which does not concern it. Whether any Fraud gave Occasion to the Promise or not. Whether the Person with whom weEdition: 1738; Page: [285] deal was privy to, or had any Share in that Fraud. Whether it be an Act of strict Right and Justice, or only such as our Honour and Reputation would incline us to. For the Opinions of Writers differ according to the Variety of these Cases, declaring some Acts to be void, and others valid; but so, that it is wholly at the Pleasure of the Person injured, either to repeal or reform them. But most of these Distinctions come from the Roman Laws, as well from the old Civil Law, as from the Praetorian, and some of them are not perfectly true, or well digested.
2. But in Order to find out the natural Truth, it will be proper to apply here a Maxim concerning the Force and Efficacy of Laws, which has been ever allowed by the general Consent of all People, viz. that2 when a Law is founded upon the Presumption of a Fact, that was not really so, then that Law shall not oblige, because the Truth of the Fact failing,3 the whole Foundation of the Law fails with it. And when a Law is founded upon such a Presumption, may be gathered from the Subject of the Law, from the Words of it, and from the Circumstances. So we may say too,4 that in Case a Promise be made upon the Presumption of a Fact, that is not really so as the Promiser believed, that Promise is naturally of no Force; because the Promiser did not give his Consent to the Thing absolutely, but upon such and such Conditions, as are not Edition: current; Page: [711] verified by the Event. To which we may refer that Question in Cicero, De Orator. 1. of him5 who falsely believing his own Son to be dead, had made another his Heir.
3. But if the Promiser were negligent, in searching out the Truth of it,6 or in expressing his own Sense, and thereby caused any Damage to the other; the Promiser shall be obliged to repair it, not by Vertue of the Promise, but on the Account of the Damage occasioned through his Fault, of which we shall treat more by and by. But if there were a Mistake in the Promiser, and yet that Mistake was not the Occasion of the Promise, the Act shall be valid, because there was nothing wanting of the true Consent; but in this Case also, if the Person to whom the Promise was given, did by any Fraud7 of his Occasion that Mistake, he shall be obliged to repair any Damage that shall arise to the Promiser from that Mistake, from that other Principle of Obligation. But if the Promise was but in Part caused by a Mistake, the Promise shall as to the Rest stand good.Edition: current; Page: [712]
VII. A Promise made thro' Fear obliges; but he who caus'd that Fear is bound to disengage or idemnify.VII. 1. There is no less perplexing a Question about a Promise made through Fear,1 for here too People generally distinguish between Fear, that is extremely great, either absolutely, or with Regard to the Person apprehensive, and that which is slight and inconsiderable; whether occasioned justly or unjustly; whether by the Person who receives the Promise, or by some other. They also distinguish between such Acts as are purely gratuitous and such as both Parties are interested in; and according to these Differences it is, that some Acts are said to be void,Edition: 1738; Page: [286] others revocable at the Will of the Promiser, and others to be wholly remitted; concerning every one of these Cases, there is a great Variety of Opinions.
2. For my Part I wholly agree with them who hold that, setting aside the Civil Law,2 which sometimes quite takes away, and sometimes lessens the obligatory Power, he who through Fear has promised any Thing, is obliged to perform it, because his Consent here was absolute, and not conditional, as in the Case of an Error. For, as Aristotle has well observed,3 he who through Fear of Shipwrack, throws his Goods over-board, would gladly preserve them, provided there was no Storm, and he in no Danger of being lost; but upon Consideration of the Time and Place, he absolutely resolves to part with his Goods, rather than be himself destroyed. But yet I must allow, that if the Person to whom the Promise was made, did cause not a just but an unjust Fear, and this a very small one too, yet if the Promise was, upon this Motive, made, he is obliged Edition: current; Page: [713] to discharge the Promiser,4 if he desire it; not that the Promise is in itself void, but on Account of the Damage unjustly caused by extorting the Consent. But what Exceptions the Law of Nations allows in this Case,5 shall be explained below, in its proper Place.
3. But that some Acts are made void6 on the Account of Fear, which Fear was occasioned not by him with whom we were dealing, but by another, is an Effect of the Civil Law, which often nulls Acts, tho' freely Edition: current; Page: [714] done, if the Doer be of weak Judgment, or leaves it to his Choice, either to stand to or go from his Word. And here what we have said before, concerning the Force and Efficacy of the Civil Law,7 we would have again remembered. But what Force Oaths add to the Confirmation of Promises, shall be shewed hereafter.Edition: 1738; Page: [287]
VIII. To make the Promise valid, it must be in the Power of the Promiser to perform it.VIII. 1. To make a Promise firm, it is requisite, that the1 Thing promised either now is, or may be, in the Power of the Promiser; wherefore in the first Place, it is certain, that no Promise can oblige us to that, which is in itself unlawful; for no Man has a Power to do any such Thing, or can have. But a Promise (as we said before) receives its Force from the Power of the Promiser, nor does it reach any farther. Agesilaus2 being once challenged upon his Promise, answered, Ναὶ δη̂τα, εἰ δ' ἐστὶ δίκαιον· εἰ δε μὴ ἔλεξα μὲν, ὡμολόγησα δ' οὐ, Very well, if it is just; but if not, I only said it, I did not promise it.
2. If the Thing be not now in the Power of the Promiser, but may in Time be, the Validity of the Promise remains suspended till that Time,3 because the Promise must then be supposed to be upon this Condition, Edition: current; Page: [715] that it ever be in his Power. But if that very Condition, by which the Thing is to come into the Promiser's Power, be in his Power too, then the Promiser shall be obliged to do whatever is morally possible for procuring the Accomplishment.
3. But the Civil Law, for Reasons of publick Advantage, nulls many Promises of this Kind also, which the Law of Nature would oblige us to; as that of a Man or Woman already married, who promise some future Match,4 and several other Promises made by Minors, and Children while under their Parents.
IX. Whether a Promise made on an ill Account be valid; this explained by a Distinction.IX. Here it is usual to enquire, whether a Promise made upon a Motive that is naturally dishonest and criminal,1 can be valid by the Law of Nature; as if a Man should promise any Thing to him that should kill another: That this is a criminal Promise, is plain enough from this, in Edition: current; Page: [716] that it was made designedly to tempt a Man to do what he ought not to do. But yet not every Thing that is ill done, does lose the Effect of a just Right,2 as appears from a profuse and extravagant3 Deed of Gift. Here is the Difference, as soon as ever the Gift is made,Edition: 1738; Page: [288] the Evil ceases, for a Man does not do ill in leaving to the Donee what he gave him. But in Promises made on an ill Account, the Evil remains till the Crime is committed; for so long, the very fulfilling of the Promise, being an Inducement to what is ill, carries a Stain along with it, which begins to wear off as soon as the Crime is committed: Whence it follows, that the Validity and Efficacy of such a Promise continues in Suspence till that Time, as I said before concerning Things promised, the Execution of which is not yet in our Power; but the Crime being perpetrated, the Obligation immediately exerts its Force, which from the Beginning was not intrinsically wanting, but was hindred by the moral Evil of the Engagement. An Instance we have of this in Judah, Jacob's Son, who performed his Promise to Thamar, whom he reputed an Harlot, sending her the promised Reward4 as her Due. But now if the Promise be occasioned Edition: current; Page: [717] by the Injustice of the Person to whom it is given, or the Bargain be unfair, and there is any Inequality in the Agreement, how this is to be amended is another Question,5 of which we shall treat very quickly.
X. What we are to judge of a Promise that entitles us to something due before.X. But when a Promise is made on the Account of something already due,1 it is not therefore the less obligatory, if we respect natural Right alone, according to what we said above, concerning our accepting what is another's. Because a Promise is a natural Debt, even when made without any Cause. But here also any Damage that arises by Extortion, or any Inequality in the Agreement shall be repaired, according to the Rules which shall be laid down a little lower.
XI. The Manner of making a firm Promise in our own Persons.XI. As to what concerns the Manner of promising, it requires, as I said before, concerning the transferring of Property,1 an external Act, that is some sufficient Sign to testify the Consent of the Will, which may sometimes be done by a Nod, but generally by Word of Mouth or Writing.
XII. The Manner of confirming a Promise made by others, and of Ambassadors who go beyond their Commissions.XII. But we may also be obliged by what1 another Man does, if it appears that we have deputed and impowered him to act for us,2 either as our Edition: current; Page: [718] Proxy3 in that particular Affair, or by Vertue of some general Qualification; it may also happen, where the Commission is to act in general, that the Person so commissioned may lay us under an Obligation, tho' he acts contrary to our Will, signified to him in his private Instructions; for here be two distinct Acts of the Will, the one whereby we oblige ourselves to ratify whatever our Proxy shall do in such a Business; the other, whereby we oblige our said Proxy, that he shall not act beyond some private Instructions that are known to him and no Body else. This is to be well observed,4 in Relation to those Things which Ambassadors promise for their Principals, who by Vertue of their publick Powers and Credentials, do sometimes exceed their secret Orders.Edition: 1738; Page: [289]
XIII. How far the Master of a Ship, and Factors, are obliged by the Law of Nature; where also is observed the Error of the Roman Law.XIII. Hence we may understand, that an Action brought against1 the Owner of a Ship, on Account of the Master, and that against a Merchant, on Account of his Factors, which indeed are not so much Actions,2 as Qualities of Actions, are founded upon the very Law of Nature; and here too I cannot but observe, that it is very ill done of the Roman Laws, to make every Man to whom the Ship belongs3 become wholly responsible for whatever the Master does. For this is neither agreeable to natural Edition: current; Page: [719] Equity, which is satisfied, if every one be bound4 for what concerns himself, nor is it advantageous to the State, for Men would be discouraged from sending Ships to Sea,5 if they were afraid of being, as it were, infinitely accountable for what the Master of the Vessel did. Insomuch that in Holland, where Merchandize has of a long Time mightily flourished, this Roman Law, neither formerly, nor now, is of any Force. Nay, on the contrary it is ordered, that the whole Company in general shall be answerable no farther, than the Value of the Ship, and of the Goods that are in it, amounts to.
XIV. A Promise must be accepted before it can be binding.XIV. But that a Promise may transfer a Right,1 the Acceptance of the Person to whom it is made is no less required here,2 than in the Case Edition: current; Page: [720] of transferring a Property; yet so, that here also a precedent Request shall be judged to subsist, and to have the Force of an3 Acceptance. Neither does that which the Civil Law has introduced, concerning imperfect Promises4 made to the Publick, hinder this, which Reason, however, has so far prevailed with some, that they presume that the sole Act of the Promiser is by the Law of Nature sufficient. For the Roman Law does not say, that the Force of the Promise is compleat before it be accepted; but only forbids to revoke it,5 that it may be always accepted; which Effect is not from the Law of Nature, but merely from the Civil Law. Not much unlike to which is what theEdition: 1738; Page: [290] Law of Nations has introduced in Favour of Infants and Madmen: For in such as these the Law supplies the Intention, both of possessing Things which are required by Possession, and of accepting what is promised or given.
XV. Whether this Acceptance should be signified to the Persons promising, explained by a Distinction.XV. It is also sometimes disputed, whether (to make a Promise valid) it be enough that it is only accepted, or that the Acceptancen also be signified to the Promiser before it can obtain its full Effect; and it is certain, that either Way the Promise may be obliging. As thus, This Engagement shall stand good, if it be accepted; or thus, This shall stand good, if I understand that it is accepted. In those Promises indeed, which imply a mutual Obligation, the Engagement is to be understood in the latter Sense;1 but Edition: current; Page: [721]Edition: current; Page: [722] in Promises of mere Generosity it is best to suppose, that it was meant in the former Sense, unless it evidently appears to the contrary.
XVI. Whether a Promise may be revoked, the Person to whom it was given dying before he had accepted of it.XVI. Hence it follows, that before Acceptance (for till then no Right is transferred) a Promise may be revoked without Injustice, nay, and without the Imputa-Edition: 1738; Page: [291]tion of Fickleness too, if it were really so intended, when first made,1 that it should not begin to be of Force till the Time of its being accepted. It may be also revoked, if the Person to whom the Promise was given die before Acceptance; because it seems to be referred to his own Choice, and not to that of his Heirs. For it is one Thing to be willing to give away a Right to such a Man, and by him to be transferred Edition: current; Page: [723] to his Heirs, and2 another Thing to be willing to give it indifferently to him or his Heirs; for it is very material to consider on whom we confer a Kindness. And this is what Neratius answered,3 that for his Part he could not believe, that the Prince would have granted that to one who was dead, which he had granted to him, supposing him alive.
XVII. Whether it may be revok'd upon the Death of the Person employ'd to signify it, explained by some Distinctions.XVII. 1. A Promise also may be revoked upon the Death of the Person, who was employed to signify the Intention of the Promiser, because the Obligation lay in his Words. But it is otherwise, if the Person sent upon this Errand were a common Messenger or Carrier, who is not the Instrument of the Obligation himself, but only the Bearer of the Deed that contained the Obligation. And therefore the Letter, or Writing, which declares such a Consent, may be carried by any Body else. We must also distinguish between him who is deputed to signify the Promise we make, and one who is authorized by us to make that Promise himself. In the former Case a Revocation shall be of full Force, tho' it be not known1 to him who carries the Promise. But in the other the Revocation will be invalid;2 because the Right of promising depended on the Will of the Person commissioned; and consequently, if he know nothing of the Revocation, he commits no Fault in promising. So also in the former Case,3 though the Donor die, the Donation may be accepted, as being on one part compleated, though subject to a Revocation, as does more Edition: current; Page: [724] plainly appear in the Affair of Legacies;4 in the other Case it cannot,5 because it is not done, but only ordered to be done.
2. But in a dubious Case, it is to be presumed that it was the Will and Intention of the Person, who gave such Orders, that his Orders should have been executed, unless some great Change, such as the Death of the Person so ordering, should happen to intervene. But however, there may be some Conjectures6 whichEdition: 1738; Page: [292] may incline us to believe otherwise, and these we ought without any Difficulty to admit, to the End that what was ordered to be given upon any religious Account may stand good. And thus may the Question, which was formerly much canvassed, be answered,7 whether an Action upon that Order lies against the Heir. Edition: current; Page: [725] About which particular Case the Author of Lib. 11. to Herennius relates, that Drusus, the Praetor, decreed one Thing, and Sextus Julius another.
XVIII. Whether a Promise accepted by Proxy, may be revers'd, explained by some Distinctions.XVIII. 1. Disputes also frequently arise concerning1 the accepting of a Thing for another. In which Case we must distinguish between a Promise made to me of something to be given to another, and a Promise made directly to him to whom the Thing is to be given. If the Promise be made to myself, without considering whether I have any Interest in it, a Consideration that the Roman Law2 has introduced, I look upon it, that by the Law of Nature I acquire a Right of accepting, that thereby the Right of demanding the Performance of the Promise may pass to another, if he also will accept of it; so that the Promiser has no Right in the mean Time to revoke it; but I, who received the Promise, may, if I please, remit it. For this Sense is not against the Law of Nature, and also very agreeable to the Words of such a Promise; nor is it a Matter of Indifference, whether another obtains a Favour by my Means or not.
2. But if the Promise be made directly to the Person to whom the Thing is to be given; we must then distinguish whether the Accepter has a particular Commission to accept it, or one so general, as may be judged sufficient to include it; or whether he has no such Commission at all.3 Where such a Commission has been given before, there is no Occasion to enquire, whether the Person be a Freeman or no, which the4 Roman Laws insist upon, but the Promise is compleat and in full Force by that Acceptance. Because a Consent may be conveyed, and signified by any Edition: current; Page: [726] third Person, whose Will is reputed mine, if impowered by me, and he readily takes it upon him. But if there be no such Commission, and yet this third Person, to whom the Promise is not made, accepts it with the Consent of the Promiser;5 then has the Promiser no Power to revoke the Promise, till he whomEdition: 1738; Page: [293] it concerns shall either approve or reject it; yet so, that in the mean Time, he who has accepted of the Promise has no Power to remit it, because he was not employed to take any Right upon himself, but only to engage the Promiser's Honour, in the Performance of the intended Favour; so that if the Promiser should pretend to revoke it, he may be said to break his Word, but not invade any Man's Right.Edition: current; Page: [727]
XIX. Within what Time some Conditions may be tacked to a Promise.XIX. From what has been said we may easily understand, what we are to judge of any burthensome Condition annexed to a Promise. For that may be done as long as the Promise is not compleated by Acceptance,1 nor the Promiser's Word and Honour given, that it shall be irrevocable. But a burthensome Condition annexed to a Promise, for the Advantage of a third Person, may be revoked, as long as it is not yet accepted by that third Person; tho' there are some, who in this, as well as in other Questions, are of another Opinion. But to one that throughly considers the Matter, the natural Equity will so clearly appear, that there will be no Occasion for many Proofs.
XX. An invalid Promise may become obliging.XX. It is also sometimes disputed, how a Promise, occasioned by an Error or Mistake in the Promiser, may become valid; if the Truth of the Matter being known,1 the Promiser be willing to stand to his Promise. The same Question may also be put concerning Promises, which are obstructed and disapproved of by the Civil Law, as being occasioned by Fear,2 or any other Cause or Motive, when that Cause or Motive shall afterwards cease. For to confirm these, some think, that nothing is required but the internal Act or Intention of the Mind, which being joined with the former external Act, or open Declaration, they judge sufficient to create an Obligation. Others disliking this, because they cannot allow that any antecedent outward Act should be a sufficient Sign of an internal Act coming after it, require a new Promise, notified by Word of Mouth, and a new Acceptance. But the middle Opinion is nearest the Truth, which requires some outward Act, but not a verbal one, since the Edition: current; Page: [728] retaining of the Thing promised by the Person to whom it was promised, and the relinquishing of it by the Promiser, or some other such Circumstance, are enough to testify a real Consent.
XXI. Promises made without any Motive, are not therefore naturally void.XXI. But, to avoid confounding the Civil Law with the Law of Nature, it must be observed, that neither those Promises, nor those Donations,1 in which the Reason for making them is not expressed, are therefore naturally invalid.
XXII. Nor is any Man by his Promise that he makes for what1 another is to do, obliged to pay Damages and Interest, provided he omits nothing that on his Part he can possibly do,XXII. How far he who promises for what another is to do stands himself naturally oblig'd. in Order to get that other Man to perform his; unless the Words of the Promise, or Nature of the Affair, carry with them any stricter Ob-Edition: 1738; Page: [294]ligation. He was discharged from his Engagement, (says Livy, Lib. 2.)2 since it was no Fault of his, that it was not performed.
I. Such human Acts as are advantageous to others are divided, first into simple and mixed.I. Among such human Acts as turn to other Mens Advantage, some are1 single and uncompounded, others are mixed and compounded.
II. Those that are single, are either gratuitous, and done for nothing, or permutatory, and by Way of Exchange:1 Such as are gratuitous, are either merely so, or with some mutual Obligation.II. Simple Acts are divided into such as are merely gratuitous, or that imply a mutual Obligation. Those that are merely gratuitous, are either done out of hand, or respect the future Time. We have no Occasion to speak of a good Turn that is done out of hand; because, tho' it produces an Advantage, it does not create any Effect of Right,2 no more than of a Donation, whereby a Property is transferred; Edition: current; Page: [730] for of this we discoursed above, where we treated of the several Ways of gaining a Property. Such Acts as respect the future Time, are the Promises of giving and doing certain Things, which we were just now talking of. Gratuitous Acts, with a mutual Obligation, are those which dispose of something or other without an Alienation of it; or of some Act or other, yet so as that some Effect of it does still remain; such as is, in respect of a Thing, the Leave to use it, which is called Lending: And as to what regards an Act, the doing of some Service that is attended with an Expence, or in Respect to which, both Parties stand obliged to do something, and this last is termed a Commission, one Kind of which is a Trust or Charge, where we take Pains to guard and keep what is committed to our Care. And of the same Nature with these Acts are the Promises of such Acts,3 unless it be, as we said before, that they respect the future Time; which Circumstance we would also have to be understood of the Acts we are now going to explain.
III. And into such as are permutatory, or by Way of Exchange; and these are either such as adjust what each has to give or to do.III. 1. Acts permutatory, or by Way of Exchange, either regulate and adjust the Shares, or make Things common: The Roman Lawyers rightly distinguish those Acts which regulate Shares into these, Do ut des, facio ut facias, facio ut des: I give you this, that you may give me that; I do this for you, that you may do thatEdition: 1738; Page: [295] for me; I do this for you, that you may give me that.1 Upon which Subject we may see Paulus, the Lawyer, in L. Naturalis De Praescript. Verb.Edition: current; Page: [731]
2. But the same Lawyers exempt from this Division some certain Contracts, which they call2 nominate, not so much because they have a peculiar Name, (for so has also the Contract of Exchange, which, however, they exclude from their nominate Contracts) but because, on the Account of their more frequent Use, they3 had received a certain Effect, and a certain essential Property, which, tho' nothing at all should be particularly said, one might by their very Name sufficiently understand. Upon which Account too there were assigned to them certain set Forms of Actions. Whereas in others less frequent, there being no more comprehended than what had been expressly said and concluded, there was no common and customary Form,4 but one suited to that Occasion; which was therefore called an Action in prescribed Terms. And also by Reason of this frequent Use of nominate Contracts, provided they had certain requisite Conditions, as in Case of a Sale, for Instance,5 if the Edition: current; Page: [732] Price were agreed on, even tho' the Matter was yet entire,6 that is, before any Thing was performed on either Side, there was an absolute and Honour Necessity of standing to the Bargain. Whereas in Contracts not so frequent, whilst the Thing was entire, they had the Liberty of repenting,7 that is, they might go off from their Agreement,8 without any Penalty for so doing; Edition: current; Page: [733] because the Civil Law took awayEdition: 1738; Page: [296] from such Contracts, the Power of Compulsion, and left them wholly dependent on the Word and Honour of the Parties concerned.
3. But the Law of Nature knows nothing of any such Distinctions; nor are those Contracts which they call Innominate, either less natural, or less antient; nay Exchange, which they reckon among the innominate, is both9 more simple, and more antient, than the Contract of Sale. And Eustathius upon the twenty-second of the Iliad, speaking of a publick Edition: current; Page: [734] Trial of Skill, to which there was appointed a Prize, what Homer terms ἄρνυσθαι, to purchase, he renders ἀντικαταλλάττεσθαι, to exchange, adding, συνάλλαγμα γάρ τι καὶ τὰ τοιαν̂τα, for this, and such like, are a Kind of Bargain. Ver. 160. The Agreement is, I do this, that you may give me that, my Work for your Goods. And therefore we, for our Parts following Nature, shall, without any Regard to the Distinction of nominate and innominate, reduce all Contracts for the Regulation of Shares, to the three Sorts before-mentioned.
4. And accordingly we say, that in Cases where I give this that you may give that, I either immediately, and upon the Spot, give one Thing for another, as in the Way of Bartering which is an Exchange, properly so called, and the most antient Method, no Doubt of it, of Trading and Commerce; or I give10 Money for Money; this the Greeks call Κόλλυβος, Coin for Coin; our Merchants now-a-days change, or give Goods for Money, as in Buying and Selling; or the Use of my Goods for the Property of other Goods; or the Use of my Goods for the Use of yours; or the Use of my Goods for your Money, which last is termed Letting and Hiring. By11 Use we mean here not only the bare Use of a Thing, but also all the Profits and Advantages that accompany it, whether it be made over only for a Time,12 or to one Person and no more, or to him and his Heirs, or limited in any other precise and particular Manner, as that among the Hebrews, which lasted until the Jubilee Year: But if I give, or part with a Thing, that so, at the Expiration of some certain Time, I may have as much of the same Kind, it is aEdition: 1738; Page: [297] Loan; and this takes Place where Things are given by Weight, Number, and Measure, whether Money, or any Thing else.
5. The Bargain of my doing this, for your doing that, or Work for Work, may be as various as the Actions whereby any reciprocal Advantage Edition: current; Page: [735] may be procured. But the Agreement of my doing this, for your giving me that, is either for Money, and this in Cases of daily Labour and Service, is called Letting and Hiring; but where one takes upon one to make Amends for any Damage that you may receive, or to secure your Effects against Hazard and Casualties, it is commonly stiled Insurance, a Contract scarce known formerly, but now as much practised as any whatever; or else I am to do so and so, in Consideration that you give me something of yours, or the Use of something of yours.
IV. Or such as put Things upon a common Foot.IV. But Acts communicatory,1 or such as introduce a common Title, make either Actions or Things common; or on the one Side Things, and on the other Side Actions for a mutual Advantage, and all this comes under the Name of Society; under which also is comprehended an Association for War, as when several private Vessels unite to defend one another against Pirates, or any other Invaders, which is usually called an Admiralty, and by the Greeks, σύμπλοια, or ὁμόπλοια, a joint Fleet.
V. Acts mixed, are either so essentially, and of themselves;V. But mixed or compounded Acts are so either as to what is principal, or by Reason of an Accessory.1 Thus, if I shall knowingly give more for a Thing than it is worth, or than I can buy it for of another, it is (a mixed Act) partly a Gift, partly a Purchase. If I agree with a Goldsmith, for so much Money, to make me so many Rings of his own Gold, it is partly a Buying, partly a Hiring.2 So also it happens in Societies, that one Side is to contribute both Actions and Money, and the other only Money. So likewise the Grant of Land to be held in Fee, is a Favour, and a Piece of Generosity; but the obliging the Person to Military Service for the Protection I give him, is Facio, ut facias, I do this for you, that you may do that for me. But if something be to be paid yearly for it besides, by Way Edition: current; Page: [736] of Acknowledgment, it is then so far a Quit-Rent. So Money sent to Sea by Way of Venture,3 is something compounded of the Contract of a Loan, and of an Insurance.
VI. Or by Reason of some Accessory.VI. An Act becomes mixed, by Reason of some Accessory, in the Manner as we see it in the Case of a Bail or a Pawn.1 For a Bail, if you regard what passes between the Person putting in the Bail, and the principal Debtor, is generally a Sort of Commission or Order. But if you respect Matters as they stand between the Creditor and the Bail, who gets nothing at all by it, it seems an Act purely free and generous; but because it is added to a burthensome Contract, it is therefore itself reputed so. Thus too a Pawn seems of itself to be a free Act, because it allows the Thing to be detained, without demanding any Thing for the Possession, but this also derives its Nature from the Contract, whose Security it provides for.
VII. Which of the Acts are called Contracts.VII. Now all Acts, advantageous to others, except those which are of meer Generosity, are called Contracts.1
VIII. There is an Equality required in Contracts, and first in the Acts that are previous to them.VIII. In all Contracts Nature demands an Equality,1 insomuch that the aggrieved Person has an Action against the other, for over-reaching him. This Equa-Edition: 1738; Page: [298]lity consists partly in the Acts, and partly in the Subject itself of the Contract; and this Equality, and Dealing upon the Square, Edition: current; Page: [737] must be observed as well in those Acts that are previous to the Bargain, as those that are principal and essential in it.
IX. One is to know every Thing that relates to what he is dealing about.IX. 1. One of these previous Acts is, that he we deal with ought to discover to us1 all the Faults he knows of, in the Thing we are dealing for; and this is not only what is in joined by the Civil Law, but is also agreeable to the Nature of the Act, there being a nearer Society2 and Engagement between Persons contracting, than what is common to all Mankind. And thus may we answer what Diogenes, the Babylonian, said upon this Topick, That all Things which are not declared, are not therefore to be thought concealed.3 Nor am I under any Necessity of telling what may be for your Advantage to hear, as in the Case of heavenly Things; for4 the Nature of a Contract being contrived for the mutual Advantage of the contracting Parties, requires something more of Exactness in it. It was well observed of St. Ambrose,5 In all Contracts, whatever Faults are in the Things exposed to Sale, they ought to be discovered to the Buyer, which if Edition: current; Page: [738] the Seller does not do, tho' the Right of the Thing be transferred to the Buyer, the latter has an Action against the former, by Reason of the Fraud. And in Lactantius,6 If a Buyer does not inform the Seller of his Mistake, that so he may have a cheap Bargain; or if a Man sells a Slave that is a Fugitive, or a House infected with the Plague, and does not discover it to the Purchaser, regarding only his own Profit, he is not an ingenuous Man, as Carneades would have him, but a Knave and a Rogue.
2. But it is not so with Circumstances that do not directly concern the Thing contracted for. As if a Man should know that there are several Ships coming laden with Corn, he is not obliged to tell you so; but, however, to discover such a Thing is kind and commendable, and in some Cases not to be omitted without Breach of Charity; yet I will not say it is unjust, that is, that it violates his Right with whom he is dealing; so that what the same Diogenes very pertinently said, as Tully relates it, is as applicable here,7 I have brought my Commodity, I have exposed it to Sale, I sell no dearer than others do: Nay, perhaps cheaper than they, when there is a greater Quantity of it; Whom do I injure then? Wherefore that of Cicero is not generally to be allowed, that to conceal or dissemble a Thing is, when you would have those whom it concerns to be acquainted with it, to be ignorant of what you know of the Matter, merely for the Sake of your own private Interest.8 For then only it is unjust, when it immediately concerns the Thing that is to be contracted for; as if a House be infected with the Plague, or ordered by the Magistrates to be pulled down. Which Instances you may see there.9
3. But it signifies nothing to speak of those Faults which are known to your Dealer, as the Servitude of the House,10 which M. Marius Gratidianus sold to C. Sergius Orata, and which he had bought of him before. Edition: current; Page: [739] For11 an equal Know-Edition: 1738; Page: [299]ledge on both Sides, puts both Parties upon an equal Foot. Thus Horace,
And this is a Remark of Plato's too, in his XI. De Legibus.12
X. One is to be left entirely to Freedom, and to have no Force put upon his Will.X. Nor should there be only an Equality of Knowledge between the Persons bargaining, but also a mutual Freedom of Will; not indeed that if one of the contracting Parties has been induced to treat through a just Fear, the other is obliged to remove it, for that is a Thing extrinsick to the Contract; but that no Man should be unjustly frightened into a Bargain; and if he be, that that Fright should first be over. In Respect to this the Lacedemonians made void the Purchase of some Land which the Eleans had by Fear extorted from the Owners, Γνόντες μηδὲν δικαιότερον εἰ̂ναι βία πριαμένους, &c. Looking upon it to be as great an Injustice to take the Goods of weaker People, upon the Pretence of Purchase, as by meer Force. Which are the very Words of Xenophon.1 But what Exceptions the Law of Nations allows in these Cases, shall be sheweda in its proper Place.Edition: current; Page: [740]
XI. There is, secondly, an Equality requir'd in the Bargain itself, if it be permutatory, or by Way of Exchange.XI. 1. The Equality required in the principal Act of a Bargain is, that no more be exacted than what is just and fit, which can scarce ever be observed in Agreements of Bounty and Beneficence;1 for if I agree to take somewhat by Way of Reward, either for what I have lent you, or for my Diligence in executing your Orders, or for my Care in looking after what you entrusted me with, I do no Wrong,2 I only mix the Contract, by making it partly permutatory, and partly gratuitous. But in all permutatory Contracts, this Equality is to be punctually observed; nor must any one pretend, that what is promised more than is due by either Party, is to be looked on as a Present: For this is seldom the Design of those that make such Contracts; nor is it to be presumed, unless it appear so. For whatsoever Men promise or give, they are supposed to do it, in Proportion to what they are to receive, and as something due only upon the Square.
2. Thus St. Chrysostom,3 ὅταν γὰρ ἐν τοɩ̂ς, &c. Whenever in our Contracts, our Purchases, or our Payments, we stand haggling, and use all our Might and Means to beat down the Price, what is this but a Sort of Robbery? The Writer of Isidore's Life in Photius tells us of one Hermias,4 who having bought any Thing too cheap, would of his own Accord add as much as it wanted of its true Value, holding it a Piece of Injustice to do otherwise; but such an Injustice as Few attended to. And in this Sense do the Hebrew Doctors interpret the Law in5 Lev. xxv. 14. and 17. Ye shall not oppress one another.Edition: 1738; Page: [300]Edition: current; Page: [741]
XII. And, thirdly , in the Thing we are bargaining for; this explained.XII. 1. There now remains the Equality required in the Thing itself that is bargained for, consisting in this, that tho' nothing was concealed that ought to have been discovered, nor any more exacted than what was thought to be really due, yet if there be found any Inequality in the Thing itself, tho' neither Party was to blame for it, as, suppose, there was some unknown Defect, or there was a Mistake in the Value, yet in this Case must the Inequality be made up, and he who has too much, must give it to him who has too little, because in the Contract it either was, or ought to have been, proposed that both Sides should be dealt with alike, and upon the Square.
2. The Roman Law, however, does not in join this in every Inequality; it does not concern itself with Things of small Consequence; and Legislators even think proper to prevent, as much as possible, the too great Number of Law-Suits; but only where the Damage is considerable, as where it exceeds half the just Value.1 For the Laws, says Cicero,2 take one Way to root out Injustice, and Philosophers another; the former meddling no farther with it than as it breaks out into open Acts, and may, as it were, be felt with the Hand; the latter permitting nothing that may be discovered by deep Meditation and Reflection. And therefore they who are not subject to the Civil Laws, but are above them, ought to follow that which right Reason informs them to be good and equitable, and so too ought those who are subject to the Laws, when the Affair that is transacting is what relates to Justice and Honesty, provided that the Laws are silent in the Case, and neither grant nor take away our Right,3 but only, for some certain Considerations, deny their Aid and Countenance to it.Edition: current; Page: [742]
XIII. What Equality is to be observ'd in Acts of Beneficence, in such as are altogether so, and in such as are only so in Part.XIII. 1. But we must observe, that some Equality ought to be regarded, even in Agreements of Bounty and Beneficence, not in deed entirely such a one as is expected in Contracts of Exchange; but an Equality proportionable to what is supposed here, as conform to the Nature of the Thing, and the Intention of the contracting Parties; namely, that a Man be not himself damaged by the Kindness he does. And therefore he who is employed and commissioned by another, should be indemnified from all Charges and Losses which may attend the Execution of that Commission;1 and so the Borrower is obliged to make good any Thing that is lost,2 because he stands bound to the Owner not only for the Thing itself, that is, by Vertue of his Property in it; for so any one who had had it would be obliged, but also by Way of Gratitude for his Favour in lending him it,a unless it appear, that the Thing so lent would have perished, had even the Owner had it in his Possession: For in this Case he loses nothing by the Loan. On the contrary, he with whom any Thing is deposited,3 receives nothing but a bare Trust, and therefore, if the Thing be gone he shall not be responsible for it; neither in Respect of the Thing, because it is not in being, nor is he the richer for it; nor in Respect of his Acceptance, because in his Acceptance he received no kindness, but did one. In Things pawned4 indeed, as well as in such as are let out,5 a middle Way is to be observed, that the Receiver is not to be answerable for every Mischance, as he who borrows a Thing is, and yet a much greater Care is required of him to preserve it, than of him with whom a Thing is deposited; because, tho' he gives nothing for the Possession of the Pledge, yet the Engagement in itself is generally an Accessory of a chargeable Contract.Edition: current; Page: [743]
2. All which agree with the Roman Laws,6 but were originally derived, not from them, but from natural Equity, and therefore are found in other NationsEdition: 1738; Page: [301] also. And among the Rest, in Rabbi Moses Maimonides, Ductor Dubitant. Lib. 3. Cap. 43.7 To this had Seneca Respect, when he said,8 Some are responsible only for their Honesty; others for the Safety of the Thing with which they are entrusted. And by this Rule we may easily form our Judgments of other Contracts. But now having (as far as was necessary to our Purpose) discoursed of Contracts in general, we shall briefly run through some particular Questions about them.
XIV. How Things are to be valued in selling; and for what Reasons the Price may be raised or lowered.XIV. 1. The most natural Measure of the Value of any Thing, is the Want of it, as1 Aristotle rightly observes, and this is what the least civilized People are altogether guided by; yet this is not the only Measure;2 for the Will of Men, which governs every Thing, covets many Things more Edition: current; Page: [744] than are necessary.3 Luxury, says Pliny, gave the Price to Pearls. And Cicero, in his Oration against Verres, In Proportion to our Passion for such Sort of Things, is our Value for them.4 And so on the contrary, it happens that Things which are the most necessary, are, on the Account of their Plenty, abundantly cheaper; which Seneca illustrates by several that determines the Value Instances, De Benefic. Lib. 6. Cap. 15. where he also subjoins this, The Price of every Thing is according to the Markets; when you have commended them ever so much, they are worth no more than they can be sold for. And Paulus, the Lawyer, The Prices of Things do not depend on this or that Man's Humour or Interest, but5 on the common Estimation; that is, as he explains it elsewhere, on the Value that all the World puts on them.6 Hence is it, that a Thing is only valued at so much as is usual and customary to be offered and given for it, which can scarce be so settled as not to admit a Demand of more or less, except it be where the Law has fixed a certain Rate, ἐν στιγμη̂, precisely, and to a Point, as Aristotle expresses it.
2. And now in that common and current Price of Things,7 we usually have a Regard to the Pains and Expences the Merchants and Traders have Edition: current; Page: [745] been at; and it often rises and falls all on a Sudden, according as there are more or fewer Chapmen, and according to the Plenty or Scarcity of Money or Commodities. Besides,Edition: 1738; Page: [302] there may possibly some such Circumstances intervene, as may very justly raise or lessen the ordinary Market Price; as, the Loss we sustain, the Profit we lose, a particular Fancy for certain Things, the Favour we do one in buying or selling what we should not otherwise have bought or sold; all which Circumstances the Person we deal with ought to be acquainted with. And we may also have Regard to the Loss or Gain that arises from the Delay or the Promptness of Payment.
XV. When a Sale is compleat by the Law of Nature, and when the Property of the Thing is transferred.XV. 1. As to Buying and Selling,1 we must observe, that the Bargain and Sale is good, from the very Moment of the Contract; and tho' the Thing be not actually delivered, yet may the Property be transferred, and this is the most simple Way of Dealing: So2 Seneca says, Selling is the alienating of a Thing that belongs to us, and the translating of it, and the Right we have in it, to some other: For it is so in an Exchange.3 But if it be agreed, that the Property shall not pass immediately, then the Seller shall be obliged to transfer his Property at such a Time, and in the mean While, both the Profits and Hazards shall be the Seller's. And therefore, Edition: current; Page: [746] that a Contract of Sale consists4 in the Seller's engaging himself to deliver the Thing sold, and that the Buyer should not be molested in the Possession of it, or should be indemnified, in Case of such Molestation; that the Buyer must run all Risques,5 and that the Profits shall belong Edition: current; Page: [747] to him before the Property be ac-Edition: 1738; Page: [303]tually transferred, are Maxims of the Civil Law, which are not in all Places observed. Nay, on the contrary, most Law-Makers have thought fit to enact, that till the Delivery of them the Seller shall have the Advantage, and stand to the Hazard of the Goods, as Theophrastus has remarked, in a Passage of6 Stobaeus, where you may also find many other Customs touching the Formalities of Selling, about giving Earnest, about retracting, very different from the Roman Laws; and Dion Prusaeensis too has observed, that among the Rhodians, a Sale was not compleated, nor other Contracts finished, till they were publickly registred.Edition: current; Page: [748]
2. And we must know too, that if one and the same Thing be twice sold,7 of the two Sales, that shall stand good which had the Property immediately trans-Edition: 1738; Page: [304]ferred, either by Delivery or otherwise; for by Edition: current; Page: [749] this the moral Power of the Things goes from the Seller, which it does not by a bare Promise.
XVI. What Monopolies are against the Rights of Nature, or the Rules of Charity.XVI. All Monopolies1 are not repugnant to the Law of Nature,2 for they may sometimes be permitted by the Sovereign upon a just Cause, and at a certain Rate; as may appear from the Example of Joseph, when he was Governor of Aegypt: So also under the Romans, the Alexandrians had the Monopoly,3 as Strabo tells us, of all Commodities brought from the Indies and Aethiopia. The like may be done by private Persons, provided they are contented with a reasonable Profit. But they, who, as the Edition: current; Page: [750] Oylmen in the Velabrum,4 do purposely combine to advance the Value of their Wares above the highest Degree of the current Price, and those also who use Force or Fraud to prevent the Importation of any greater Quantity, or else agree to buy up all, in Order to sell them again, at a Rate very exorbitant, considering the Season, commit an Injustice, and are obliged to make Amends and a Reparation for it. If indeed they do by any other Means hinder the bringing in of Goods, or ingross them to themselves, to vend them dearer, tho' at a Price not unreasonable for the Season, they act against the Rules of Charity,5 as St. Ambrose proves by several Arguments, in his third Book of Offices, but properly speaking, they violate no Man's Right.
XVII. How Money goes for every Thing else.XVII. Now as for Money, we must observe, that it naturally derives its Currency, or Equivalence,1 not from the Matter only,2 nor from this or that particular Denomination3 and Form, but from a more general Capacity of being compared4 with, or answering the Value of all other Things, at least such as are more immediately Necessary. And its Value, if it be not otherwise agreed, must be according to the Rate it bears at the Time, and in the Place of Payment;5 thus Michael Ephesius, Nicom. Edition: current; Page: [751] v. 'Ως ἐπὶ τη̂ς χρείας τον̂το ἐπὶ τον̂, &c. Money itselfEdition: 1738; Page: [305] varies, as our Necessities do; for as we have not always the same Occasion for Things that belong to another, so Money is not always of the same Value, but sometimes is more, and sometimes less worth; but yet6 the Value of Money is what lasts longest, and therefore we use it as the Standard and Measure of all Things in Trade. The Meaning of which is this, That which is the Measure or Standard to other Things, ought in itself to be constant, and such are Gold, Silver, and Copper, in Things susceptible of Price, for they are in themselves of the same Value, almost always, and in all Places. But as other Things which are useful or necessary, are either scarce, or in abundance, so the same Money, made of the same Metal, and of the same Weight, is sometimes worth more, sometimes less.
XVIII. By the Law of Nature nothing is to be abated of the Rent, or Hire, on Account of Barrenness, or the like Accidents, and what if the first Tenant being not able to use it, it be lett to another.XVIII.1 Letting and Hiring, as2 Caius well observes, very much resembles Buying and Selling, and is guided by the same Rules. That which answers to the Price is the Rent or Hire; and that which answers the Property, is the possessing and enjoying the Benefit of it. Wherefore, as when a Thing perishes,3 the Owner bears the Loss; so when a Thing Edition: current; Page: [752] rented or hired proves barren, or by any other Accident unprofitable,4 the Loss is to the Tenant, nor has the Person who lets it any Thing the less Right to the Money agreed for, because when he delivered the Thing to his Use, it was then worth as much as was contracted for, tho' this may be altered either by the Laws, or particular Agreements. But if the Landlord,5 upon the first Tenant's not being able to make Use of it, shall let it to another, whatsoever he shall get thereby, he shall repay to him who first took it, that he may not enrich himself by another Man's Due.
XIX. How a just Salary may be increased or lessened.XIX. And what we have before said concerning Selling, that the Price may be more or less, if what would otherwise not be bought or sold at all, be bought or sold to gratify another, the same may be understood of any Thing or Work, let or hired. But if a Man, by the same Pains, can serve several Persons, as by carrying them from Place to Place, if the Undertaker shall oblige himself entirely to every one of them, he may demand the same Reward1 from each of them, as from any one of them, if the Law does not opposeit; because a second Person's receiving Benefit by my Labour does no Ways prejudice the Agreement made with the first.Edition: current; Page: [753]
XX. By what Law the taking Interest is forbidden.XX. 1. As to the Loan of a Thing consumable, it is a common Question, by what Law is the taking of Interest forbidden? And tho' it be the general Opinion,1 that it is prohibited by the Law of Nature; yet the Bishop of Avilaa thinks otherwise; neither are the Arguments on the other Side weighty enough to convince one of the contrary. For whereas it is said of the Loan of a consumable Commodity, that it is what is done freely,2 as much may be said too of the LoanEdition: 1738; Page: [306] of any other Thing that is not consumable; and yet it is not unlawful to demand some Money for the Use of it, it only causes the Contract to go by another Name. Neither is the Argument drawn from the Barrenness of Money more prevalent. For3 the Industry of Man has made Houses, and other Things naturally barren, to become fruitful. The most plausible one is, that here one Thing is given for another;4 and that the Use of a Thing cannot be Edition: current; Page: [754] distinguished from the Thing itself, when that very Use consists in the Consumption of it, and therefore nothing ought to be demanded for it.
2. But here we must observe, that when it is said, that the Use and Profits of Things consumable, or of such whose Property passes to the Persons to whom they are lent, were introduced by a Decree of the Senate,5 but that, however, there were no such Use and Profits in Reality, the Controversy depends on the Idea of the Word Ususfructus, Use and Profits, which Word certainly does no Way, according to its proper Signification, Edition: current; Page: [755] agree to any such Right;6 but however, it does not thence follow, that such a Right is nothing, or of no Value, when on the contrary it is evident, that if any one would yield up such a Right to the Proprietor, Money might be demanded on that Account. So also the Right of not paying Money or Wine borrowed, till after such a Time, is something susceptible of Estimation; For he pays less, who pays late. Therefore7 ἐν ἀντιχρήσει, in a Mortgage, the Profits of the Land answer the Use of the Money. But what8 Cato,Edition: 1738; Page: [307] Cicero, Plutarch,9 and others alledge against Usury, does not so much respect the Nature of the Thing, as the Circumstances, and accidental Consequences that commonly attend it.
3. But whatever our Opinion may be of this Matter, we ought to be satisfied with the Law given by GOD to the Hebrews,10 which forbids Edition: current; Page: [756] Edition: current; Page: [757] one Jew toEdition: 1738; Page: [308] exact Interest for Money lent to another. For the Subject of this Law, if not of indispensible Necessity, is, without Doubt,11 morally honest, and therefore,12 in the fifteenth Psalm, it is reckoned amongst some other Things that are highly moral; as also in Ezekiel the eighteenth. Such Precepts then as these do oblige us Christians too, as being called to give more noble Instances of Virtue; and certain Duties which the Law then only enjoined the Hebrews, or other circumcised Persons (for they were both equally obliged) the same ought now to be observed towards every Body,13 all Distinction of People being entirely Edition: current; Page: [758] taken away by the Gospel, and the Word Neighbour of a much larger Signification. As that excellent Parable of CHRIST [Luke x. 29, &c.] concerning the Samaritan, does fully demonstrate. And therefore Lactantius, treating of the Duties of a Christian, says,14 He shall not give his Money upon Interest, for this is to gain by another's Loss; and St. Ambrose, To assist a Man in his Wants, is a Piece of great Humanity, but15 to extort more than is borrowed is severe and cruel. And Augustus Caesar16 himself set a Mark of Infamy on some Roman Knights, who took up Money at an easy Rate, and lent it upon extravagant Interest.Edition: current; Page: [759]
XXI. What Advantages do not come under the Name of Interest.XXI. But yet we must observe, that there are some Contracts1 which look like Usury, and are generally thought to be so, which, however, are Agreements ofEdition: 1738; Page: [309] another Nature; as when what is demanded is to make Amends for the Damage the Lender sustains, by being a great While out of his Money, or in Consideration of that Gain, which, had he not lent it, he might otherwise have made, and so something is deducted for the Uncertainty of his Hopes, and for the Pains he must very probably be at. So likewise, if any Thing be demanded, to defray the Charges of him who lends Money to several Persons, and keeps always some Cash by him for that very Purpose; and if any Thing be advanced for the Hazard he runs of losing the Principal, where his Security is not extraordinary good,2 this is not to be reputed Usury. And Demosthenes, in his Oration against Pantaenetus, positively denies, that he ought to be branded with the odious Name of an Usurer, who lends3 for a moderate Profit, what he has got in his Business, and by honest Labour, partly Edition: current; Page: [760] that he may preserve what he has got; and partly that he may oblige and accommodate some Body else.
XXII. What Power the Civil Laws have in this Affair.XXII. And as for those human Laws, that allow Interest for the Use of Money, or any other Thing, as in Holland they have long allowed1 eight per Cent. per Annum, to some, and twelve per Cent. to trading People; provided that they keep within the Bounds of that just Consideration, which every Man ought to have for what he does or may suffer, by the Want of his Money or Goods; they are not repugnant to any natural or divine Right. But if they exceed this fair and modest Rate, the Laws2 may indulge an Impunity, but they cannot grant a Right.
XXIII. What Rules one must go by in a Contract for saving harmless, or of Insurance.XXIII. A Contract for1 saving harmless, called2 an Insurance, is absolutely void, if either the Insurer does know at that Time for certain, that the Goods they are treating about are already safe, or the Owner that they are lost; and this not only on the Account of that Equality, which the Nature of permutatory Contracts requires, but because the subject Matter of this Contract is supposed to be a Loss considered, as uncertain Edition: current; Page: [761] and suspicious. And the Price of such an Insurance must be regulated and stated by the common Rate.
XXIV. How one is to be regulated in a Company or Partnership; where also several Kinds of it are explain'd.XXIV. 1.1 In a Company, where Trade is carried on by a joint Stock, if each Member contributes an equal Proportion of Money, their Gain or Loss shall also be equal, but if one advances more than another, then each Person shall be rated according to his Quota, which Aristotle thus expresses,2 ἐν χρημάτων κοινωνιᾳ πλείωEdition: 1738; Page: [310] λαμβάνουσιν ὁι πλείω συμβαλλόμενοι. In Partnership they are intitled to most who put in most. And the same is to be observed, where Persons concerned together take an equal Pains, or one does more than another; and also my Labour may answer your Money, or your Money and your Labour; for, as they usually say, One Man's Money is but an even Recompence for another Man's Work.3
2. But this is not always done in one Manner, for either I may furnish my Work, and you the Use only of your Money, in which Case the Principal, whether lost or safe, is yours. Or you may put the Property of the Sum in common with my Labour, in which Case I am a Partner in the Capital. In the former Instance, the Work or Service is not set against the Stock, but the Hazard of losing it, and the Gain that might probably be expected from it. But in the other, the Value of my Work is supposed to be added to the Stock of your Money, and therefore I must have a Share in the Stock equivalent to it. What we have said of Work or Service, the same also may be understood of the Fatigue and Danger of a Voyage, and in such other Cases.
3. But that either of the Partners should share in the Profit, but yet be indemnified, in Case of Loss, is against the Nature of Partnership, Edition: current; Page: [762] but it may be so agreed on without any Injustice; and then there will be a mixed Contract of Partnership and Insurance, in which Case an Equality will still be observed, if he who undertakes to make good the Loss, shall receive a greater Proportion of the Gain, than otherwise he should have had. But that any should bear the Loss, and not partake of the Gain, is for this Reason not to be allowed of, because a common Share in the Advantages is a Thing so essential to Partnership, that it cannot subsist without it. And as to what the Lawyers say, that where the Shares are not expressly named, they are to be understood as equal,4 this only holds good where the Quotas are equal. But in a Partnership of all Goods in general, not what is gained by this or that Man's particular Contributions, but what might probably be expected from them, must be regarded.
XXV. Of a Sea-Company.XXV. When1 a Number of Ships are fitted out against Pirates by a joint Stock, the common Advantage consists in their common Defence; and Edition: current; Page: [763] sometimes in taking of Prizes. But the Ships, and all that are in the Ships, are usually appraised, and the Value brought into a Sum total, that so the Proprietors of the Vessels and Effects, may each of them bear his Share of the Damages and Expences,2 in Proportion to what they respectively have in that Sum, among which Damages and Expences those for curing the wounded are to be reckoned. All we have hitherto said, is agreeable to the Law of Nature.
XXVI. By the Law of Nations an Inequality in the Terms, if agreed upon, is not minded as to external Acts; and in what Sense this is said to be natural.XXVI. 1. Nor does the voluntary Law of Nations seem to make any Alteration here, only in this one Particular, that where the Contributions are unequal,Edition: 1738; Page: [311] yet if they are consented to, and there be no Lie in the Case, nor any Thing concealed which should have been discovered, in all external Actions they shall be looked upon as equal; so that, as by the Civil Law, before Dioclesian's Constitution,1 no Action was allowed in Court against such an Inequality; so neither now among those who have no other common Law than the Right of Nations,2 can there be any Redress or Constraint on that Account. And this is what Pomponius means, when he says,3 that in Buying and Selling one Manmay naturally over-reach another; where the Word may does not signify that it is just and lawful so to do, but only that it is so far permitted, that there is no Remedy provided for it against him who is resolved to insist upon, and justify himself, by his Agreement.
2. But4 naturally, in that and some other Places, is put for what is conform to the received Custom. In which Sense Nature is said, by the Edition: current; Page: [764] Apostle St. Paul, to teach us, That if a Man have long Hair it is a Shame unto him. (1 Cor. xi. 14, 15.) when at the same Time it was no-ways repugnant to Nature, and was what several People practised. So the Author of the Book of Wisdom calls Idolaters, but not all Sorts of Men, ϕύσει ματάιους, Vain by Nature, (Chap. xiii. 1.) and the Apostle St. Paul, Τέκνα ϕύσει ὀργη̂ς, By Nature the Children of Wrath, (Ephes. ii. 3.) speaking not so much in his own Person as in that of the Romans, among whom he then lived. And Evenus, an antient Poet,
In which Sense too there is an old Expression of Galen, ἐπίκτητοι ϕύσεις τὰ ἔθη, Custom is an acquired or a second Nature, (Lib. 3.) So likewise Thucydides, Τω̂ν νόμων κρατήσασα ἡ ἀνθρωπεία ϕύσις, Human Nature is above Laws, (Lib. 3. Cap. 84. Edit. Oxon.) So the Greeks call Virtues and Vices which are become habitual, Πεϕυσιώμενα, Naturalized: And we read in Diodorus Siculus, τη̂ς ϕύσεως ὑπὸ τη̂ς ἀνάγκης Edition: current; Page: [765] ἡττωμένης, When Nature, that is, the Strength of the Mind, is overcome by Necessity. Thus Pomponius, the Lawyer, when he had said, that according to the Roman Law, the same Person, if of the Rank of those who do not bear Arms, could not make a Will, and yet die intestate, subjoins, that there is a5 naturalEdition: 1738; Page: [312] Contradiction in these Things, Edition: current; Page: [766] tho' that Rule depended on the Custom of the Romans only, nor was it practised by other Nations, nor even by the Romans themselves,6 in the Case of a Soldier's Will.
3. And the Advantage of having such a Rule as I was speaking of, introduced, was evident; for it cuts off infinite Disputes, which could not possibly be decided, by Reason of the uncertain Prices of Things, among those who had no common Judge to appeal to, nor avoided, if any Man might go back from his Bargain, upon Pretence of being unequally dealt with. It is the Essence, or Substance, of Buying and Selling, (say the Emperors,7 meaning by the Word Essence, or Substance, the constant Custom, or Way) for the Buyer to beat down the Price, and the Seller to raise it, till,8 after many Words on both Sides, the one falling a little from his Demand, and the other rising in his Bidding, they agree at last in a certain and fixed Price. Seneca, with an Eye to this Regulation, says,9 What signifies what they are worth, if the Buyer and the Seller are agreed about the Price? No Thanks to the Seller, if he has got a good Bargain. And Andronicus Rhodius to the same Purpose,10 Τὸ γὰρ ἐν τοɩ̂ς ἑκουσίοις, Edition: current; Page: [767] &c. Where the Agreement is voluntary, there is no Injustice in an Advantage, nor is there any Amends to be made for it. For the Law has granted an Impunity in such Cases.
4. The Author of Isidore's Life,11 whom I lately mentioned, calls the Buying too cheap, and the Selling too dear, Ἀδικίαν ὑπὸ μὲν τον̂ νόμου ἀϕειμένην τὸ δε δίκαιονEdition: 1738; Page: [313] ἀνατρέπουσαν, An Injustice12 tolerated indeed by Law, but which in the Main is not the less an Injustice.
I. How great the Authority of an Oath is, even in the Opinion of the Heathens.I. 1. In every Nation, and in every Age, an1 Oath has always been of the greatest Weight and Consideration in Promises, Agreements, and Contracts. For, as Sophocles says in his Hippodamia,
Our Ancestors, says Cicero,3 could never find out any Thing stronger than an Oath to bind us to the faithful Discharge of what we had engaged.
2. And therefore it was ever a received Opinion, that some very grievous Punishment would attend Persons forsworn; as Hesiod has observed, speaking of Swearing,
Insomuch that5 Posterity was thought to be punished for the Faults of their Ancestors this Way; an Opinion that was never entertained but in Cases of the most enormous Crimes: Nay, that the bare Will and Design, without the Effect, would certainly draw down a Vengeance on it. Herodotus confirms both these, in his Story of Glaucus Epicydides, who had only deliberated with himself, whether he should falsify the Oath he had taken, of being true to a certain Trust reposed in him; where that Author produces these Verses of the Priestess of Apollo,Edition: 1738; Page: [314]
And Juvenal reciting the same Affair, concludes thus,
3. Cicero says very judiciously and well, that An Oath is a religious Affirmation,9 and whatever is promised after such a Manner, calling GOD, Edition: current; Page: [770] as it were, for a Witness to your Words, ought punctually to be performed. But as for what he adds, and this we are to do in Regard to Honour and Justice, and not out of any Fear of the Anger of the Gods; for there is no such Thing incident to their Natures. If by Anger he means a Passion or Disturbance, he is in the Right of it; but if he excludes all Desire or Will to make the Guilty suffer, it is no Ways to be allowed, as Lactantius judiciously proves. Let us see now whence this sacred Power of an Oath arises, and how far it extends.
II. That a deliberate Mind or Intention is required in such an Affair, I mean, that he who swears is willing to do so.II. First, What we have already said of Promises and Contracts, is also true in the Case of Oaths, that he who swears should be in his right Senses, and consider before-hand what he is going to do. And therefore, if a Man, not designing to swear, should inconsiderately utter Words importing an Oath,1 as is related of Cydippe, one might say of him what Ovid attributes to her,
2It is the Mind that swears; with that we never swore.Edition: current; Page: [771]
Taken out of Eurypides, who said in his Hippolytus,
But if any one willingly swears, tho' he is not willing to be bound by that Oath, he is however obliged to stand to it, because an Obligation is inseparable from an Oath, and the immediate and inevitable Consequence of it.
III. The Words of an Oath oblige in that Sense in which he to whom we swear, is believed to understand them.III. 1. Some are of Opinion, that tho' a Man solemnly pronounce the Words of an Oath, yet if it be not with an Intent to swear, he shall not be obliged by that Oath, but he sins by swearing rashly. But it is more reasonable to say, that he is bound to perform what he has called GOD to witness. For that Act, which is ofEdition: 1738; Page: [315] itself binding, proceeded from a deliberate Mind. And therefore, tho' what Tully says holds generally good, that Not to do what you have in Conscience, sworn, is Perjury.1 As also what Calypso, in Homer, swearing to Ulysses, says,
2. Yet has it this Exception, if he who swears knows not, or has no Room to believe probably, that the Person he deals with takes the Words in another Sense; for he who calls GOD to witness what he is saying, is obliged to perform his Word3 in that Sense wherein he thinks it is taken Edition: current; Page: [772] by those with whom he deals; and this is what the same Cicero alledges,4 You are obliged to stand to what you swear, if you swear in such a Manner that he who requires or administers the Oath, is persuaded that you ought to perform it. And in Tacitus we read,5 Those who were conscious to themselves of Guilt, were much embarrassed, and endeavoured by divers Artifices to elude the Force of the Words of the Oath. And St. Austin,6 They are perjured, who, tho' they kept to the Words of the Oath, have yet deceived the Expectation of those they swore to. And7 Isidore, Tho' the Words of an Oath be never so craftily contrived, yet GOD, who is the Witness of the Conscience, takes it so, as he, to whom we swear, understands it. And this is what they call8 Liquidò jurare, To swear with a safe Conscience. And therefore Metellus Edition: current; Page: [773] did well in refusing to giveEdition: 1738; Page: [316] his Vote with an Oath, for passing the Apuleian Law;9 tho' there were other Senators, who, under Pretence that the Law was null, because unduly proposed, alledged, that the Oath was to be understood with this tacit Restriction, that they approved the Law, on Supposition it had been duly proposed and enacted.
3. For tho' in other Promises some tacit Condition may be supposed, which may absolve the Promiser,10 yet in Oaths no such Thing is admitted; Edition: current; Page: [774] to which that remarkable Expression of the Apostle to the Hebrews is admirably pertinent, GOD willing more abundantly to shew unto the Heirs of the Promise, the Immutability of his Counsel, confirmed it by an Oath; that by two immutable Things, in which it was impossible for GOD to deceive, or lie, (for so I think the Word ψέυδεσθαι is properly rendered, as plain speaking is called Truth,11 Dan. vii. 16. viii. 26. x. 1.) we might have a strong Consolation. To understand which Words, we must know, that the Penmen of the Holy Scriptures do often speak of GOD, ἀνθρωποπαθω̂ς, after the Manner of Men, and rather as he appears to us, than as he is in himself.
4. For GOD does not really alter his Decrees; yet he is said to change, and12 repent, as often as he does otherwise than his Words seem to imply,13 by Reason of some Condition tacitly understood, which Condition then ceases, Jer. xviii. 8. You may find Instances of this Kind in Gen. xx. 3. Exod. xxxii. 14. 1 Kings xxi. 29. 2 Kings xx. 1. Isa. xxxviii. 1. Jonah iii. 5, 11. In which Sense too GOD may improperly be said to deceive us. And it is usual for the Word ψέυδεσθαι, which is in the aforesaid Passage to the Hebrews, to sign if any Event that does not answer our Expectation, as we may see in Levit. vi. 2. Jos. xxiv. 27. Isa. lviii. 11. Hos. i. 2.14 Habak. iii. 17. and elsewhere. And this is a Thing frequent in Threats, because they confer no Right on any Body. And sometimes it is so in Promises, where there is a tacit Condition, as I have just now said.
5. And therefore the Apostle mentions two Things, which imply the Immutability of what GOD had declared he would do, a Promise, because Edition: current; Page: [775] it gives a Right to the Person to whom it is made; and an Oath, because it admits of no Conditions that are tacit, or any Ways obscure and concealed; as we find Psal. lxxxix. 30, 31, 32, 33, 34, 35, 36. But it is another Case, if the Nature of the Affair plainly discovers and points out any Conditions; to which some refer that of Numb. xiv. 30. Ye shall not come into the Land, concerning which I sware to make you dwell therein, save Caleb and Joshua. But the promised Land may be better understood as given by an Oath, not to such or such Persons, but to the People (or Nation) of the Jews in general, that is, to the Posterity of those to whom GOD had sworn, ver. 33. And such a Promise might be performed at any Time, not being limited to any particular Persons.
IV. An Oath procured by Fraud, when binding.IV. 1. From what has been said, we may learn what to judge of an Oath procured by Fraud or Surprise. For if it be certain, that he who swore1 supposed aEdition: 1738; Page: [317] certain Fact which really is not as he supposed, and that unless he had believed so, he would not have sworn, that Oath shall Edition: current; Page: [776] not bind him.2 But if it be doubtful, whether he would not have sworn, tho' he had not been thus mistaken, he shall then stand to his Words, because the most simple Interpretation is what is most agreeable to an Oath.
2. And hither I refer the Oath which Joshua,3 and the Princes of the Congregation of Israel, made to the Gibeonites; they were indeed deceived by the Gibeonites, who pretended to come from a far Country. Yet it does not thence necessarily follow, that if Joshua and the Princes had known that they had been their Neighbours, they would not have spared them. For as to what they said to the Gibeonites, Peradventure you dwell among us, and how shall we make a League with you? It may be taken in this Sense, that the Gibeonites were asked what Manner of League they desired, whether to be admitted as Allies, or as Subjects; or it might be to shew, that it was not lawful for the Jews to enter into an equal Alliance with certain Nations, but not that it was prohibited them to save the Lives of those who surrendered themselves to them. For the divine Law which commanded them to destroy those Nations,4 being compared with another Order, may be understood with this Limitation, Unless they immediately, and upon the very first Summons, submitted and did as was injoined them! Which among other Things is proved by the Story of Rahab,5 who for her good Services was saved; and by the Example Edition: current; Page: [777] of Solomon, who received those who were left of the Canaanites into the Number of his Subjects, and made them tributary.
3. And to this Purpose is what is observed in the Book of Joshua, that there was not a City of those seven People that ever offered to make Peace; for they were hardened on Purpose that they might be incapable of any Favour. Since then, it is very likely, that had the Gibeonites declared the Matter as it really was, which for Fear they did not, they would, however, have been allowed Quarter, upon Condition of their Obedience, the Oath was valid, insomuch that very grievous Punishments were, by GOD's own Order, inflicted on them, who afterwards presumed to violate it.6 St. Ambrose, treating of this Story, speaks of it thus, Joshua did not think fit to break the Peace he had granted, because it was confirmed with the awful Solemnity of an Oath,7 lest whilst he was blaming the PerfidiousnessEdition: 1738; Page: [318] of others, he himself should be worse than his Word, and forfeit his own Honour. But however, the Gibeonites did in some Measure suffer for their Fraud, being immediately, upon their Submission to the Hebrews, adjudged8 to a Sort of personal Slavery; whereas, had they dealt frankly, they might have been received as tributary States.
V. The Words of an Oath not to be extended beyond their usual Sense and Acceptation.V. Nor should the Meaning of an Oath be extended beyond the usual Sense and Acceptation of the Words.1 And the Tribes therefore were not perjured, who, when they had sworn not to give their Daughters in Marriage to the Benjamites, did yet suffer them to keep and enjoy the Women they had stolen. For2 it is one Thing to give, and another not Edition: current; Page: [778] to demand again what is lost and gone. Of this Fact St. Ambrose speaks thus,3 Which Indulgence of theirs was not without a Punishment in some Measure suitable to their ungovernable Passion, whilst they were only permitted to steal themselves Wives, and not to enter upon that State with the sacred Solemnity of lawful Matrimony. Not unlike this was that Request which the Achaeans made to the Romans,4 who did not approve of some Things which they had done, and confirmed by Oath, that the Romans would be pleased to alter what they had a Mind to; but not to oblige the Achaeans by any religious Vow to make void what they had established by Oath.
VI. The Oath that engages any Thing unlawful does not oblige.VI. That an Oath may be binding,1 the Obligation must be lawful: For, if a Thing promised upon Oath be forbidden, either by the Law of Nature, by the Divine Law, or even by an human Law, of which we shall quickly treat, it shall have no Power at all to oblige us,2 Philo the Jew said well in this Case, ἴστω δε πα̂ς ἐνωμότως ἄδικα δρω̂ν ὅτι, &c. Let him who is going to do an unjust Action, because he swore he would, know, that he is so far from discharging his Oath by this Means, that here ally breaks it; an Oath is a sacred Thing, and deserves the greatest Circumspection and Care in the Management of it, as being the Seal and Sanction of just and honest Resolutions. For he does but add one Sin to another, who to a wicked Oath joins a wicked Action, since it would have been much better to have entirely desisted. And therefore let him refrain from such Actions, and implore the Mercy of GOD, which is essential to him, by asking Pardon for his Edition: current; Page: [779] rash Oath. And it would be down-right Folly, and unaccountable Madness, to chuse a double Evil when one might be excused for half. We have an Instance of this in David, who spared Nabal tho' he had sworn to kill him. And3 Cicero gives such another Precedent in Agamemnon's Vow, and Dionysius Halicarnassensis,4 in the Conspiracy of the Decemviri to seize upon the Government. Accordingly Seneca says,5Edition: 1738; Page: [319]
(Where Interim signifies Interdum)
And St. Ambrose,6 Some Promises cannot be complied with, nor some Oaths observed, without acting against a Principle of Duty. And7 St. Austin, If Faith and Honour be engaged to make Way for Ill, I wonder we should dare to call it Faith and Honour. The same does St. Basil teach us, in his second Letter to Amphilochius.Edition: current; Page: [780]
VII. Or if it hinders any greater moral Good.VII. 1. Nay,1 tho' what is promised be not illegal and unjust,2 but only hinders some greater moral Good; in this Case also the Oath shall not be binding, because we stand so much indebted to GOD, for our Endeavours to grow and improve in Virtue, that it is not in our Power to deprive ourselves of the Liberty of doing all the Good we can. There is a remarkable Passage in that Philo Judaeus I just mentioned, not impertinent to the Affair in Hand, and is very well worth our inserting here, εἰσὶ δ' οἱ τὴν ϕύσιν ἄμικτοι, &c.3 There are some People of so morose and unsociable a Nature, either in Hatred to all Mankind, or as being so much in Slavery to their own Fury and Passion, that they confirm this unhappy Temper even by an Oath, swearing, for Instance, that they will never eat at the same Table, or lie under the same Roof, with such or such a Person; that they will never do this or that Man the least Piece of Service, nor indeed will they ever be beholden to him themselves for any as long as they live. What he says, that some People swore,4 that they would never do this or that Man any the least Piece of Service, the Hebrews called נרר הנאח, that is, εὐχὴν ὠϕελείας, The Vow of Assistance, or Beneficence: שבע לחטיב, An Oath to do Good, Lev. v. 4. The Form of this, as the Rabbins tell us,5 was מהדתחנה מני קדבן כל, or שאתא נהנחלי קרבן, All the Advantage that you might receive from me, be dedicated to GOD; agreeable to which is the Syriack, in the old Version of Matthew xv. 5.מני קרבני טרם רתתהנא, in Greek Δω̂ρον ὁ ἐὰν ἐξ ἐμον̂ ὠϕεληθη̂ς, that is, It is a Gift consecrated to Edition: current; Page: [781] GOD (for this is what is meant by קרבן, κορβα̂ν) by whatsoever thou mightest be profited by me.
2. The Hebrew Doctors, who were very ill Expositors in this Respect of the divine Law, thought that a Vow, to which this Sort of Consecration was added, was valid and binding, tho' made in Prejudice to their own Parents: Which Opinion CHRIST refutes in the Place just cited, where the Word Τιμα̂ν, to honour, signifies to assist and be kind to, as appears by the parallel Place in St. Mark, and from St. Paul, 1 Tim. v. 3, 17. and Numb. xxiii. 11. But if the Oath, or the Vow, were designed to the Disadvantage of any other Person, in this Case too we might very justly say, that it is no Ways obliging, because, as we observed before, it is against that Proficiency and Advancement in doing Good, to which all our Endeavours ought to be directed.
VIII. Or if the Thing engaged for be impossible.VIII. It is to no Purpose to say any Thing at all of what can never be performed. For it is evident enough, that no Body can be obliged to a Thing absolutely impossible.Edition: 1738; Page: [320]
IX. What if that Impossibility be only for a Time.IX. As for what is impossible indeed for the present only, or because one supposes it to be so, the Obligation continues in Suspence; but so, that he who swore upon such a Supposition1 is obliged to take all the Care he can to render that, which he has promised upon Oath, to become possible.
X. Men swear by the Name of GOD, and in what Sense they do it.X. The Form of Oaths may be different in Words, but the Substance is the same. For all are understood to appeal to GOD in this Manner; for Instance, Let GOD be my Witness, or Let GOD be my Avenger, which Edition: current; Page: [782] both amount to one and the same Thing. For1 when we call him to witness, who has a Power and Right to punish, we do at the same Time desire him to revenge our Perfidiousness; and he who knows all Things is an Avenger of the Crime, by the same Reason that he is a Witness of it. Plutarch says, Πα̂ς ὄρκος εἰς κατάραν τελευτα̂ τη̂ς ἐπιορκίας, Every Oath ends in a Curse upon Perjury. And to this the old Forms of making Treaties and Alliances, by Killing of Sacrifices, allude; as appears, Gen. xv. 9. and in what follows there. And that of the Romans, in Livy,2 Tu Jupiter, ita illum ferito, ut ego hunc Porcum. Do thou, O Jupiter, smite him (if the Violater) as I do this Hog. And in another Place,3 Deosprecatus, ita se mactarent, quemadmodum ipse agnum mactasset. He prayed the Gods so to kill him as he did that Lamb. And in4 Polybius and Festus, Si sciens fallo, ita me Diespiter ejiciat, ut ego hunc lapidem. If I knowingly deceive you, let GOD cast me away as I do this Stone.
XI. And by the Name of other Things too, with a Regard to GOD.XI. 1. It was an old Custom to swear also by the Name of other Things and Persons, whether thereby wishing that those Things might prove hurtful to them, (if they swore falsly) as the Sun, the Earth, the Heavens, the Prince; or that they might be punished in them, as when they swore by their Head, their Children, their Country, their Prince: Nor did the Pagans only use to swear thus, but the Jews too, as the same1 Philo informs us; for he says it is not fit when we swear upon every Occasion, immediately ἐπὶ τὸν ποιητὴν καὶ πατέρα τω̂η ὅλων ἀνατρέχειν, To have Edition: current; Page: [783] Recourse to the Creator and Father of all Things; but to swear by Parents, by Heaven, by the Earth, by the Universe. Something like this is observed by the2 Interpreters of Homer, who say, that the antient Grecians did not use Προπετω̂ς κατὰ τω̂ν θεω̂ν ὀμνύειν ἀλλὰ κατὰ τω̂ν προστυγχανόντων, To swear precipitately by the Gods, but3 by such Things as were at Hand, as by the Scepter. And this Custom4 Porphyry, and the5 Scholiast upon Aristophanes, say was brought up by Rhadamanthus, a Prince eminent for his great Justice. Thus we read (Gen. xlii. 15.) that Joseph swore by the Life of Pharoah, according to a received Custom of the Egyptians, as Abenesdras observes, and6 Elisha by the Life of Elijah, (2 Kings ii. 2.) Nor does CHRIST, Matt. v. as some think, allow such Oaths to be less binding than those which areEdition: 1738; Page: [321] expressly made in the Name of GOD; but because the Jews did not so much regard these, being prepossessed with such an Opinion as he was, who said Sceptrum non putat esse Deos,7 he does not believe the Scepter to be the Gods; he shews that even these are true Oaths. For, as Ulpian has very well observed, He who swears by his own Life, seems to swear by GOD,8 for he swears with an Eye and Respect to some divine Power: So CHRIST tells us, that he Edition: current; Page: [784] who swears by the Temple, swears by GOD who presides there, and that he who swears by Heaven, swears by GOD, whose Throne it is.
2. But the Jewish Rabbins of those Times were of Opinion, that an Oath made by created Things was not obligatory, unless some Penalty were added to it, as if the Thing by which they swore were consecrated to GOD. And this Oath they called Κορβα̂ν, or ἐν τῷ δέρῳ, By Way of Gift, whereof Mention is made not only in St. Matthew, but also in the Tyrian Laws, as we learn from Josephus, in his Dispute against Appion.9 And for the same Reason, I suppose, it was that the Greeks called the Eastern People, Καρβανοω̂ς,10 which Word we find in Aeschylus11 and Euripides;12 and Καρβάνα δ' ἀυδὰς, in the same Aeschylus. CHRIST, in Edition: current; Page: [785] the above-mentioned Passage, opposes this Error. And Tertullian13 informs us, that the antient Christians used to swear by the Life of their Prince, a Thing more august and venerable than any Genius whatever. And in Vegetius we find a certain Form, which we took Notice of before, wherein the Christian Soldiers swore, not only by GOD, but by the Majesty of the Emperor, which, next to GOD, is what ought to be valued and reverenced by all Mankind.
XII. It is an Oath, tho' sworn by false Gods.XII. Nay more,1 if any one swears by false Gods, his Oath shall bind him, because, whatever chimerical Notion he may have in his Mind, yet he thinks of the Deity in general, and therefore the true GOD, if he be forsworn, looks upon it as done in Contempt to him.2 And tho' we see indeed, that the holy Men of Antiquity have never proposed an Oath in that Form, much less have taken it themselves, which I admire that3 Duarenus should have allowed; yet, if theyEdition: 1738; Page: [322] could not prevail with those they had Business with to swear otherwise, they, however, dealt with them, they, for their Parts, swearing as they ought, and receiving from them such an Oath as they could get. We have an Instance of this in Jacob and Laban, Gen. xxxi. 53.4 This is what St. Austin says, Even Edition: current; Page: [786] he who swears but by a Stone, if he swears falsly, is perjured: And then, The Stone does not hear you speak, but GOD punishes you for your Deceit.
XIII. The Effects of an Oath; whence arises a twofold Obligation, one at the Time of Swearing, the other after; this distinctly explained.XIII. 1. The principal Effect of an Oath is to end all Disputes, Πάσης ἀντιλογίας πέρας εἰς βεβαίωσιν ὁ ὅρκος, says the divine Author to the Hebrews, An Oath for Confirmation is the End of all Strife. Not unlike to this is that of Philo,1 Ὅρκος μαρτυρία θεον̂ περὶ πράγματος ἀμϕισβητουμένου, An Oath is the Testimony of GOD in doubtful Cases. And that of Dionysius Halicarnassensis, Τελευταία δε πίστις ἅπασίν ἐστιν, &c.2 The utmost Assurance that either Greeks or Barbarians can give, and which no Time can efface, is when by their Oaths and Vows they make the Gods the Sureties of their Contracts and Agreements.3 So was an Oath among the Aegyptians, Μεγίστη παρ' ἀνθρώποις πίστις, The greatest Pledge of human Fidelity.4
2. He then who swears is obliged to two Things. First, That his Heart agree with his Words, which Chrysippus5 terms ἀληθορκεɩ̂ν, To swear truly. Secondly, That his Actions answer his Words, which he calls εὐορκεɩ̂ν, To swear well; he who offends in the former Case is said,6 ψευδορκεɩ̂ν, To swear falsely; he who in the latter, ἐπιορκεɩ̂ν, To be perjured, as the same Chrysippus nicely distinguishes them, tho' sometimes they are confounded.
XIV. When an Oath lays us under an Obligation both to GOD and Man, and when to GOD only.XIV. And indeed, if the Matter be such, and the Words so conceived, that they regard not only GOD, but also some certain Person, that Person, Edition: current; Page: [787] no Doubt of it, shall from that Oath be entitled to a Right, as including a Promise or Contract, which ought to be taken in the most simple and plainest Sense. But if the Words of the Oath ado not directly regard that Person, by conferring any Right on him; or if they do respect him, yet so as that somewhat may be opposed to his Claim, then the Force of the Oath will be such, that that Person shall acquire no Right, but that the Swearer shall nevertheless be obliged before GOD to make good his Oath.1 We have an Instance of this in him, who by an unjust Fear has extorted a Promise upon Oath. For he obtains no Right, or at least such a one only, as he is obliged to give up, because in acquiring it he was the Cause of Damage to him whom he forced to promise. Thus we read, that the Hebrew Kings were both2 reproved by the Prophets, and punished by GOD,3 for break-Edition: 1738; Page: [323]ing their Faith, which they had sworn to the Kings of Babylon to maintain inviolable. Cicero commends Edition: current; Page: [788] Pomponius,4 the Tribune, for keeping his Word and Promise, tho' what he swore was forced from him by the Fright they put him into; So great, says he, was the Reverence of an Oath in those Days. And therefore, not only Regulus,5 how unjust soever his Confinement was, was obliged to render himself a Prisoner; but also those6 ten that Cicero mentions, were obliged too to return to Hannibal, for this was what their Oath had laid upon them.
XV. The Opinion that an Oath given to a Pyrate, or Tyrant, binds not before GOD, confuted.XV. 1. Nor does this take Place only in Relation to publick Enemies, but in Regard to every other Enemy; for it is not so much the Persons to whom we swear,1 as GOD, whom we invoke as a Witness to what we swear, that creates this Obligation. And therefore Cicero2 is not to be minded, when he says, that it is no Perjury, if a Man does not pay the Money which he promised with an Oath to Pirates, or Robbers, for saving his Life; because a Pirate, or Robber, has no Claim to the Right of Arms, but is a common Foe to all Mankind, and with whom we ought not to keep either our Word or our Oath. And the same, in some other Place he says of a Tyrant,3 as Brutus does in Appian,4 οὐδὲν πιστὸν ἐστὶ Ῥωμαίοις πρὸς τυράννους οὐδ' ἔνορκον, The Romans think it no Point of Honour or Duty to observe either Faith or Oath to Tyrants.Edition: current; Page: [789]
2. But tho', by the Law of Nations, there is a great Difference between an Enemy in Form, and a Pirate, as we shall shew hereafter, yet will not that Difference be of any Weight in this Case, where we have to do with GOD; for tho'5 the Condition of the Person be such as he cannot claim a Right, yet that signifies nothing, since it was GOD we are engaged to, and therefore an Oath is sometimes called a Vow;6 nor is what Cicero says allowable, that there is no common Right that ought to be observed with Respect to a Pirate. For by the Law of Nations whatsoever is deposited with us by a Thief,7 is to be restored to him,8 if the right Owner does not appear, as Tryphoninus well observes.
3. Wherefore I cannot approve of their Opinion,9 who think it Discharge enough, if a Person does but barely lay down the Sum, which he has promised to pay a Robber, tho' he immediately takes it back again; because, when we swear to GOD, our Words ought to be understood in the plainest Sense, and so as they may have a real Effect. And therefore he who came back to his Enemy privately,Edition: 1738; Page: [324] and then went off again, did not, in the Judgment of the Roman Senate, satisfy his Oath of Returning.10Edition: current; Page: [790]
XVI. Whether an Oath given to one who does not regard his Word be to be kept; explained by a Distinction.XVI. 1. As to that of Accius,1 T. Fregisti fidem. A. Quam neque dedi, neque do infideli cuipiam. T. You have broke your Faith. A. Which I neither gave, or ever do give, to a Person who has none himself; may in this Sense be allowed, if our Promise made, and confirmed by Oath,2 was grounded upon another's Promise, as upon a Condition to which ours related; for that Condition not being performed, makes void our Promise. But if the Promises were of different Kinds, and did not respect each other, then each Promise is to be faithfully discharged by the Persons who swore; and hence it is, that Silius commending Regulus, addresses himself to him in the following Terms,
2. A plain Inequality in Contracts, naturally gives sufficient Cause either to repeal or reform them, as I have said before. And tho' the Law of Nations has made some Alteration in it, yet by the Civil Law, which is of Force where both Parties are of the same Nation, they often have Recourse to what is allowed by the Law of Nature, as we have also proved elsewhere. But here too, if an Oath intervene, tho' little or nothing be due to the other, yet our Faith given to GOD must be punctually observed.4 And therefore the Psalmist reckoning up the Qualities of a good Man, adds this as one of them, He that sweareth to his Neighbour, and disappointed him not, tho' it were to his own Detriment.5Edition: current; Page: [791]
XVII. He who is bound to GOD alone does not oblige his Heir after him.XVII. But it is to be observed, that where there is no Right transferred to the Person with whom we deal, on the Account of some Defect, as aforesaid, but we are engaged only in Respect of the Oath that we made to GOD, there the Heir of him who made the Oath is not bound.1 For as the Goods of the Deceased pass to the Heir, so do also the Charges and Incumbrances, but not any other Obligations, which were only the Result of meer Piety, Gratitude, or Sincerity. For these have nothing to do with what is strictly termed Right, as it is now established, as we did not forget to observe elsewhere.
XVIII. It is no Perjury not to keep one's Word, or Oath, to him who does not desire that it should be kept; or if that Quality or Circumstance of Condition, under which, and in Consideration of which the Oath was made, ceases.XVIII. But also where there arises no Right to the Person who receives it, yet if the Oath seems to respect the Advantage of a third Person, and1 that Person will not accept thereof, the Oath shall not oblige him who gave it,2 nor if the QualityEdition: 1738; Page: [325] of the Person ceases, in Regard to which a Man swore; as if a Magistrate shall cease to be a Magistrate, the Obligation ceases. In Caesar,3 Curio thus speaks to Domitius's Soldiers, How is it possible that you should be bound by an Oath to him, who having thrown away the Ensigns of Power, and renounced his Command, is become a private Man, and a Prisoner under another's Power? And presently adds,4 the Oath has lost its obliging Force, by the Loss of the Imposer's Liberty.Edition: current; Page: [792]
XIX. When that which is done contrary to one's Oath becomes void.XIX. It is an Inquiry too, whether an Act done contrary to an Oath, be only unlawful or void? Where we must distinguish, that if our Faith only be engaged,1 the Act done contrary to our Oath shall stand good, as in a Testament of Sale. But the Oath shall not be of Force, if it be so framed, that it comprehends an absolute renouncing of any Power to do that Act.2 And these Things do naturally attend any Oath; whence we may easily judge of the Oaths of Kings and of Foreigners to one another, when the Act is not subject to the Law of the Place.
XX. How far the Prince's Power extends concerning what his Subjects have sworn to Strangers, or Strangers to them, explained by a Distinction.XX. 1. Let1 us now see what Power and Authority Superiors, that is, Kings, Fathers, Masters, and Husbands (as to what regards a conjugal State) are intitled to. And here the Act of our Superiors cannot make void an Oath which is truly obligatory, so that it should not be fulfilled; for that belongs both to natural and divine Right. But because all our Actions are not fully in our own Power, but they have some Dependence on our Superiors, therefore our Superiors have a double Power over us, concerning that which is sworn; the one directly over the Person swearing, the other over the Person to whom he swears.
2. The Act of the Superior may restrain the Person swearing, either before he swears, by making such an Oath void, as far as the Right of an Inferior is subject to the Power of a Superior; or, after he has sworn, by forbidding the Performance of it. For an Inferior, as such, could not bind himself without the Consent of his Superior, beyond which he had no Power. After this Manner, by the Hebrew Law, the Husband had Power to make void the Vow of his Wife, the Father that of his Children, so long as they were under the Power of his Government. Seneca proposes Edition: current; Page: [793] this Question,2 What if there should be a Law made, that no Man should do what I have promised my Friend to do for him? Which he thus answers, The same Law dispenses with the Performance that forbids me to promise. But some Acts may be mixt, and made up of both, as when the Superior orders, that what the Inferior shall swear in such and such Circumstances, as, suppose, through Fear or Want of Judgment, shall be binding only so far as he, the Superior, approves of it. And upon this Foundation are built the Dispensations and Absolutions,3 which Princes in former Times did exercise by themselves, whichEdition: 1738; Page: [326] Power, by their Consent, is now executed by the Heads of the Church, the more effectually to prevent any Thing contrary to Piety.4
3. So the Act of a Superior may be directed against the Person to whom it is sworn, either by taking from him that Right which he has Edition: current; Page: [794] gained, or if he has no Right, by forbidding him to claim any Right by that Oath.5 And this may be done two Ways, either by Way of Punishment,6 or for the publick Good7 by Vertue of that eminent Power which a Sovereign has over the Goods of his Subjects. And hence we may learn, what Power Princes have over the Oaths of their Subjects, where he who swears, and he to whom it is sworn, are of different Nations.8 But he who upon his Oath has promised any Thing to an injurious Person, as to a Pirate, acting as such,9 cannot, by Way of Punishment, take away from him, that Right which he has given him by his Promise. For then Words would have no Effect,10 which is a Circumstance that ought wholly to be avoided. And for the same Reason, the Right of that which is promised, cannot be recompensed with the Right of that which was before disputed11 if the Agreement were made, after that Disputebegan.Edition: current; Page: [795]
4. Yet may a human Law take away that Clog and Impediment, which itself had laid upon some particular Kind of Acts, if an Oath intervene, either in general Terms, or under some certain and precise Form; which the Roman Laws have done in such Impediments12 as do not directly respect the publick Advantage, but the private Benefit of him who swears. And if this be so, the Act sworn shall beEdition: 1738; Page: [327] of Force in the same Manner, as it naturally would be if there was no such human Law, either by obliging his Faith only, or by giving also a true Right to another,Ch. 11. of this Book, § 3, 4. according to the different Nature of the Acts, which we have explained in another Place.
XXI. What Manner of Oaths Christ forbids when he prohibits Swearing at all.XXI. 1. We must observe here by the Way, that what is said in the Precepts of CHRIST, and by St. James, of not Swearing at all, does not belong properly to affirmative Oaths,1 of which we have some Instances in St. Paul, but to obligatory Oaths, which promise something future and uncertain Edition: current; Page: [796] This is plain from the Opposition, in the very Words of CHRIST, Ye have heard it hath been said by them of old Time, thou shalt not forswear thyself, but shalt perform unto the LORD thine Oath; but I say unto you, swear not at all. And by the Reason given by St. James, Μὴ εἰς ὑπόκρισιν πέσητε, that ye fall not into Hypocrisy, that is, that ye be not found Deceivers, for so the Word ὑπόκρισις, signifies in the Greek, as appears Job xxxiv. 30. Matt. xxiv. 51. and in several other Places.
2. The same may be proved by our Saviour's Words, ἔστω δε λόγος ὑμω̂ν, ναὶ, ναὶ; οὐ, οὐ; Let your Communication be Yea, yea; Nay, nay; which St. James thus expounds, ἔστω δε ὑμω̂ν τὸ ναὶ, ναὶ; καὶ τὸ οὐ, οὐ; Let your Yea be yea, and your Nay, nay; where there is evidently the Figure which the Rhetoricians call Πλοκὴ, as in that Passage,
And in another like it, Ad illam diem Memmius erat Memmius.3 To that Day Memmius was Memmius. For the former Yea and Nay signify a Promise, the latter the fulfilling of that Promise. For Ναὶ, or Yea, is a Form used by a Person promising, and is explained Rev. i. 7. by Amen, or So be it, and it is of the very same Signification in the Syriack, אין, answering to the Rabbinical הין, as does the Arabick زَڎَم, as among the Roman Lawyers4 Μάλιστα, Yes, and Quidni, why not? are Particles of Speech that denote the Consent of the Person to the Agreement that is proposed to him. In St. Paul, 2 Cor. i. 20. it is taken for the Accomplishment of a Promise, when he says, that All the Promises of GOD in CHRIST, are Ναὶ καὶ ἀμήν, Yea and Amen, that is, are certain and undoubted. And from hence arises that old Way of Expression amongst Edition: current; Page: [797] the Jews, Justi Hominis,5 Ναὶ est ναὶ & non, est non. An honest Man's Yea is yea, and his No is no.
3. On the contrary, they whose Words and Actions disagree, are said to be Ναὶ καὶ οὐ, Yea and Nay, 2 Cor. i. 18, 19. That is, their Yea is Nay, and their Nay is Yea. So St. Paul himself expounds it; for when he said he did not ἐλαϕρὶᾳ χρήσασθαι, Use Lightness, he adds, his Word was not Ναὶ καὶ οὐ, Yea and Nay. Festus relating the several Significations of the Word Nauci, writes thus, Some derive it from the Greek,6 Ναὶ καὶ οὐχι, Nai cai ouchi, and say that it imports a fickle inconstant Creature. Now if Ναὶ καὶ οὐ, Yea and Nay, signifies Fickleness and Inconstancy, it will follow that Ναὶ, ναὶ; οὐ, οὐ; Yea, yea, and Nay, nay, signify Constancy.
4. So that our Saviour's Words imply, what7 Philo the Jew expresses, Κάλλιστον καὶ βιωϕελέστατον καὶ ἅρμοττον, &c. It is the best Thing in the World, the most convenient, and most agreeable to a rational Nature, to abstain from Swearing, and to accustom oneself so to Truth, as that our Word may be taken as soon as an Oath.8 And in another Place, Ὁ τοὐ σπουδαίς λόγος ὅρκος ἔστω βέβαιος, ἀκλινη̂ς, ἀψευδέστατος. The Word of a good Man ought to pass for a firm, unchangeable, and sinEdition: 1738; Page: [328]cere Oath. And, as Josephus says of the Essenes,9 Πὰν τὸ ῥηθὲν ὑπ' αὐτω̂ν ἰσχυρώτερον ὅρκου, τὸ δε ὀμνύειν αὐτοɩ̂ς περιίσται, Every Word spoken by them was firmer than an Oath, and therefore they looked upon an Oath as superfluous.
5. Pythagoras10 seems to have borrowed this Maxim from the Essenes, or some of the Jews whom they followed, Μὴ ὀμνύναι θεοὺς, ἀσκεɩ̂ν Edition: current; Page: [798] γὰρ ἀὐτὸν δεε͡ιν ἀξιόπιστον παρέχειν,11 Not to swear by the Gods, for every one should take Care12 to be believed without his Oath. Curtius tells us, [[13]] the Scythians thus addressed Alexander, Do not expect that the Scythians should oblige themselves to you by Swearing, they take an Oath of Fidelity in being always as good as their Word. And Cicero, for Roscius the Comedian, Whatever Punishment the immortal Gods have appointed for a perjured Person, the same is designed by them for the Liar and the Fraudulent; for they are not so much offended with Men for breaking their Words upon Oath, as for their Treachery and Perfidiousness, whereby they intend to cheat and circumvent others. Remarkable is the Saying of Solon,14 Καλοκαγαθίαν ὅρκου πιστοτέραν ἔχε, Be of that Probity, as to be believed more for your Honesty than your Oath. And Clemens Alexandrinus says, that it is the Duty of a good Man, Τὸ πιστὸν τη̂ς ὁμολογίας ἐν Edition: current; Page: [799] ἀμεταπτώτω καὶ ἑδραίω δεικνύειν βίωτε καὶ λόγω,15 To shew the Sincerity of his Promises by the Firmness and Uniformity of his Life and Conversation. And Alexis the Comedian,
And Cicero, in his Oration for L. Cornelius Balbus, tells us, that when one at Athens, who was a Man of known Probity, had given in his publick Evidence, and was coming to the Altar to confirm it upon his Oath, all the Judges unanimously cried out, that he should not swear; because they would not have it thought, that his Oath ought to be depended on, more than his bare Word.
6. That Passage of Hierocles upon the golden Poem, does not disagree with what our Saviour advances, Ὁ σέβου ὅρκον ἐν ἀρχῃ̑ παραγγέιλας, &c. He who in the Beginning commanded us to reverence an Oath, did thereby forbid us to swear about Things16 that are casual, and altogether uncertain in their Event and Issue. For such Things are trifling and hazardous, and therefore it is neither decent nor safeEdition: 1738; Page: [329] to swear about them at all. And Libanius highly commends a Christian Emperor, because ἐπιορκίας τοσον̂τον ἀποστατῷν, ὥστε, &c. he was so far from perjuring himself, that he dreaded even to swear the Truth. And Eustathius, upon that of the fourteenth Odyss. (v. 171.) Ἀλλ' ἤτοι ὅρκον μὲν ἐάσομεν, But we will allow an oath, says thus, Οὐ χρεία ὅρκου ἐν τοɩ̂ς ἀδήλοις, &c. in doubtful Matters there is no Occasion for an Oath, by Way of Confirmation, but of Prayers for Success.Edition: current; Page: [800]
XXII. What Circumstances have by Custom, without Swearing, the Force and Obligation of an Oath.XXII. And therefore in many Places, instead of an Oath, it is customary1 to ratify a Promise by joining of the right Hands of the two Parties together, which was πίστις βεβαιωτάτη παρὰ τοɩ̂ς Πέρσαις, the strongest Tye of Faith among the Persians; [[2]] or by some other Sign and Circumstance, and is so powerful an Engagement, that if the Promiser does not faithfully perform what he has promised,3 he is no less detested than if he had been really perjured. And it used to be particularly said of Kings and great Persons, that their Word was as good as an Oath. For they ought to be such as to be able to say with Augustus, Bonae fidei sum,4 Edition: current; Page: [801] I am a Man of my Word; and with Eumenes,5 that they would sooner lose their Lives than be worse than their Word. And very pertinent to this, is that of Gunther the Genoese,
And Cicero, in his Oration for Dejotarus, says, in Commendation of Julius Caesar, that his Hand was not more to be depended on in War and Battle, than in what he had promised by it. And it is observed by Aristotle,7 that in the Heroes Days, if a King did but lift up his Scepter, it was as good as his Oath.Edition: 1738; Page: [330]
I. The Opinion of those refuted, who hold that Restitutions to the full which arise from the Civil Law, extend to the Acts of Kings as such; as also that Kings are not obliged by their own Oaths.I. 1. The Promises, Contracts, and Oaths of Kings, and of others who have a like Sovereign Power, have some particular Difficulties and Questions, concerning the Power they have in Regard to the Validity of their own Acts, the Right which their Subjects acquire thereby, and the Obligation they impose on their Successors. As to the first, the Query is, whether the King himself has Power to restore himself to the State he was in before, or to make void his own Contracts, or to absolve himself from his Oath, as in all these Cases he can his Subjects.1 Bodin thinks Edition: current; Page: [803] that where a King is over-reached by Fraud, by Mistake, or by Fear, he may for the same Reasons be restored to his own Rights, and this both in Things that affect and lessen his Royal Prerogatives, and in those that relate to his private Fortune, as any of his Subjects might to theirs. To which he adds, that a King is not obliged by his Oaths, if the Contracts agreed on be such, as may be revoked by the Civil Law, tho' the Contracts be agreeable to Honesty; and that he is not therefore bound, because he has sworn, but as any Man may be bound by just Covenants so far as another is interested in the Execution of them.
2. But we (as we have elsewhere distinguished) do here also distinguish between the Acts of Kings which they do as Kings, and the private Acts of those Kings. For what they do as Kings, is looked on as done by the whole Nation: But as the Laws made by the whole Body of the People,2 could have no Power over such Acts, because the Community is not superior to it self; so neither can the Laws of a King. Wherefore Restitution, Edition: current; Page: [804] which receives3 its Power only from the CivilEdition: 1738; Page: [331] Law, ought not to take Place in Regard to such Contracts. And therefore neither are those Contracts to be excepted, which Kings make in their Minority.4
II. To what Acts of Kings the Laws extend, explained by several Distinctions.II. 1. If the People indeed have made a King, not with an absolute Power, but with the Restraint of some Laws, then what Acts he does contrary to those Laws, may be made void,1 either entirely, or in Part, because so far the People have reserved this Right to themselves. But if the King has a real and absolute Sovereignty, and yet holds not his Kingdom as his Property, that is, has no Power to alienate it, or any Part of it, or of its Revenues, all such Acts of his as shall tend to an Alienation, are void by the Law of Nature, because they relate to what is not his own, as we have proved already.
2. But the private Acts of a King are to be considered, not as the Acts of the Community, but as of one of its Members, and therefore done with a Design to follow the common Rule of the Laws; whence it is, that even the Laws which make void some Acts either simply, or if the injured Person desires, shall also take place here, as if it had been agreed on upon this Condition. Thus we see some Kings have taken their Advantage of the Laws against Extortion.2 Yet a King may, if he pleases, Edition: current; Page: [805] exempt from those Laws his own Acts, as well as those of his Subjects; but whether he intended to do so, must be gathered from Circumstances. [[3]] If he do so, then the Case shall be determined by the mere Law of Nature: Provided, where the Laws make void any private Act, not in Favour of the Actor, but as his Punishment, those are of no Force against the Acts of Kings, nor any other penal Laws, nor any Thing whatever that carries a Constraint along with it. For to punish and to force must proceed from distinct Persons.4 Neither can the Compeller and the compelled Edition: current; Page: [806] be one Person, nor is it sufficient here to consider one and the same Person under different Respects.
III. When a King is obliged by his Oath, and when not.III. But a King may, by a preceding Act, make void his Oath as well as a private Man,1 if by a former Oath he has deprived himself of the Power to takeEdition: 1738; Page: [332] such an Oath; but by any after Act2 he cannot; because here also is required a Distinction of Persons. For those which are made void by an after Act, had before in them this Exception, Unless my Superior will not let me; which cannot be in the Oath of a King: And to swear that you shall be obliged to stand to what you promise, Unless you will your self, is very absurd, and contrary to the Nature of an Oath. And even tho' an Oath can confer no Right on another, by Reason of some Fault in that Person, yet he who swears, is bound before God,3 as I said before; and thus are Kings also obliged by their Oaths, no less than private Men, tho' Bodine be of another Opinion.
IV. How far a King is obliged to what he has promised without any Cause or Reason.IV. We have also shewed already, that full and absolute Promises being accepted, do naturally transfer a Right to another, which respects Kings equally with private Men. And therefore their Opinion is to be condemned, who say that Kings are not bound by the Promises which they have made without any Cause or Reason for so doing; which yet may be true in some Sense, as we shall see hereafter.
V. The use of what has been said of the force of the Laws about the Contracts of Kings.V. As to what we have said before, that the Civil Laws of a Kingdom have no Power over the Agreements and Contracts of the King, it is no more than what Vasquez has observed. But his Inferences from thence, that his buying and selling at no certain Price, his letting or hiring without Edition: current; Page: [807] any Rent agreed on, or giving any Thing away in Fee, without a Writing under his Hand,1 shall be valid, I cannot allow. For these Acts are done by him not as a King, but as any other Person would do. And over such Acts as these not only the general Laws of the Nation, but even the particular Laws of the Place, where the King resides, have Power. Because the King, for some special Reason, is considered there as a Member of that Corporation. And this is the Case, unless (as I said before) it shall appear by good Circumstances, that it was his Intention, that his Actions should be exempted from the Power of those Laws. But the other Example brought by Vasquez, concerning a Promise any way made,2 is very well grounded, and may be explained by what has been said above.
VI. In what Sense a King may be said to be obliged to his Subjects by the Law of Nature only or by the Civil Law too.VI. 1. What the Civilians generally maintain, that the Covenants which a King enters into with his Subjects, oblige by the Law of Nature only, and not by the Civil Law, is very obscure.1 For Authors sometimes abuse the Term of natural Obligation, by interpreting it to be what is naturally fair and honest, but not what is properly and strictly due: As for an Executor to pay entire Legacies, without deducting, as it was by the Falcidian Law allowed,2 a fourth Part, or to pay a just Debt, when the Edition: current; Page: [808] Creditor is incapacitated by the Law3 to receive it, or to return aEdition: 1738; Page: [333] Kindness,4 none of which can be recovered by an Action of false Debt. But sometimes indeed they construe it more properly to be what does really oblige us, whether it transfer a Right to another, as in Contracts; or transfers none, as in an imperfect Promise accompanied with a full and firm Resolution. Maimonides the Jew, Duc. Dubit. Lib. III. Cap. LIV. makes an apt Distinction between these three, he says that whatsoever comes more than is due, falls under the Notion of חסך Bounty,5 which other Interpreters upon Prov. xx. 28. call פלגת הטרבח, 6 the excess or overplus of Goodness; that what is due in Strictness and Rigour, is called Edition: current; Page: [809] in Hebrew מנשפט Judgment; and that they stile what proceds from a Principle of Honesty, צרקה Justice, that is Equity. The Translator of Mat. xxiii. 23. distinguishes between ἔλεος, κρίσις, πίστις,7 where by the Word πίστις he Means what the Hellenists generally call δικαιοσύνη, righteousness: For κρίσις signifies what is strictly due, as you will find in 1 Macc. vii. 18. and viii. 32.
2. A Man may also be said to be civilly obliged by his own Act, either in this Sense, that the Obligation arise not from the mere Right of Nature, but from a Civil Right, or from both: Or in this Sense, that an Action in the Civil Law may lie against him. We therefore say, that from the Promises and Covenants, which a King makes with his Subjects, there may arise such a true and proper Obligation, as may confer a Right upon them; for such is the Nature of Promises and Contracts, even between God and Man, as we have shewed already. If the King engages himself, not as King, but as any other Person would do, the Civil Laws shall oblige him. But if they be done by him, as a King, the Civil Laws do not affect him; which Difference was not well observed by Vasquez. Nevertheless an Action may arise from any of these Acts, so far as to declare the Right of the Creditor, but no Compulsion can follow, on account of the Condition of the Persons we are dealing with. For that Subjects should force him, to whom they are subject, is not lawful, which Equals may do against Equals by the Right of Nature, and Superiors against Inferiors by the Civil Law.Edition: current; Page: [810]
VII. How a Right gained by Subjects may lawfully be taken away.VII. But we must also observe this, that a King may two Ways deprive his Subjects of their Right, either by Way of Punishment, or by Vertue of his eminent Power.1 But if he do it the last Way, it must be for some publick Advantage, and then the Subject ought to receive, if possible, a just Satisfaction for the Loss he suffers, out of the common Stock. This therefore, as it holds in other Things, so it does also in that Right which is obtained by Promise or Contract.Edition: 1738; Page: [334]
VIII. The Distinction of Things gained by the Law of Nature and by the Civil Law, rejected.VIII. Nor must we by any Means allow that Distinction, which some make, of the Right acquired by the Law of Nature,1 and that by the Civil Law. For the King has an equal Right to both, nor can either of them be taken away without just Cause. For it is contrary to Natural Right, that whatever Property or other Right a Man has lawfully gained to himself, should be taken from him without a sufficient Reason. On the contrary, if a King should do it, he is without doubt obliged to make Restitution, and to repair the Damage; because he acts against the true Right of his Subjects. And here is the Difference between the Right of Subjects, and the Right of Foreigners, (that is,2 of such as are in no Respect Subjects) which Right of Foreigners can by no Means be under that Sovereign Dominion;3 for as to Punishment, we shall see about that below; but the Right of Subjects must be under that Dominion, as long as the Advantage of the Publick wants and requires it.
IX. Whether the Contracts of Kings are Laws, and when they are so.IX. From what has been said we may perceive, how false the Opinion of some is, who hold all the Contracts of Kings to be Laws. For from the Laws there arises no Right to any Man in regard to the King: And Edition: current; Page: [811] therefore if he should repeal those Laws, he wrongs no Man. However, if he does it without any just Cause, he is really to blame; but a Man acquires a real Right from Promises and Contracts. Besides, by Contracts the Contractors only are obliged, but by the Laws all Subjects are. But there may be a Mixture, partly of Contracts, partly of Laws, as a Treaty made with a neighbouring King, or with the Farmer of the Revenues, which is at the same Time published for a Law, so far as it contains in it what is to be observed by his Subjects.1
X. How by the Contracts of Kings they who inherit all their Goods stand obliged.X.1 Let us now come to the Successors; and here we must distinguish2 between those who inherit all the Goods of the deceased King, as he who receives a patrimonial Kingdom, either by Will, or from an Intestate; and between those who succeed in the Kingdom only, as by a new Election, or by Prescript, and that either in Imitation of other common Inheritances, or otherwise; or whether succeeding by a mixt Right.3 For they who inherit all the Goods with the Kingdom, are without doubt obliged to perform all the Contracts and Promises of the late King. And that the Goods of the Deceased shall be obliged even for his personal Debts, is as antient as Property itself.
XI. How by those Contracts they who succeed in the Kingdom may be obliged.XI. But how far they1 who succeeded barely to the Crown, or to the Goods only in Part, and to the Crown entirely, are obliged, (by the Contracts of the Predecessor) does deserve as much to be inquired into, as it has been hitherto treated of without Order.2 'Tis plain enough that such Edition: current; Page: [812] Sort of Successors, as such, are not directly, that is, ἀμέσως, immediately obliged; because what Title they have, they receive from the People, and not from him; whether that Succession fall like other common Inheritances, or differ very much from them, of which Distinction we have treated before.
2. But ἐμμέσως, mediately, that is,3 on the account of the State, such Successors are obliged; which must be thus understood. Every Society, as well as every parEdition: 1738; Page: [335]ticular Person, has a Power to oblige itself either by itself, or by its major Part. This Right they may transfer, either expresly, or by necessary Consequence, by transferring, for Instance, the Sovereignty: For in Morals, he who gives the End, gives all Things that conduce to the End.
XII. And how far.XII. 1. But this is not without its Bounds and Limitations, nor indeed is an unlimited Power of obliging absolutely necessary to the good Government of a Nation, no more than it is to the Advantage of a Trust; but only as far as the Nature of that Power requires.1 A Guardian, says Julian, is considered as Master of his Pupil's Estate, as long as he manages it discreetly, but not when he ruins his Ward: In which Sense that of Ulpian is to be understood,2 every Society shall be obliged by the Acts of the Governour, whether the Agreement be advantageous, or prejudicial to the Society. We are not however to judge of the Engagements of a King, by the Rules of a Contract for managing Affairs (as some maintain) so that his Act shall then only be esteemed ratified, when the State receives a Benefit by it, for it would be very dangerous to the State it self, to reduce the Prince to such Necessities. And therefore it is not to be supposed, Edition: current; Page: [813] when the People conferred the Government upon him, that they designed to straiten him thus. But what the Roman Emperors declared in a Rescript with Respect to the Corporation of a Town,3 that what was transacted by the Magistrates, should be of Force in doubtful Cases, but not so when that which is plainly due is rashly given away; the same Answer may be returned to our Inquiry, concerning the whole Body of the People, observing a Proportion accordingly.
2. As then every Law does not oblige Subjects; for besides those which enjoin Things unlawful,4 some Laws are manifestly absurd and unreasonable, so also the Contracts of Princes do not oblige their Subjects, unless they carry any warrantable Reason, which in doubtful Matters5 ought to be presumed, in Respect to the Authority of Governors: Which Distinction is much better founded than that which is usually alledged by many, about the greater or less Damage that may ensue. For in this Case we are not so much to regard the Success of the Contracts, as the Reasons whereon they were grounded, which if warrantable, the People themselves shall be obliged by them, if they should become free, and so Edition: current; Page: [814] shall their Successors too as the Heads of the People; for if the People whilst independent have made any Contract, he also who comes afterwards to possess the Sovereignty in a full and absolute Manner, shall be obliged to stand to it.
[[3.]]6 The Emperor Titus is much commended for this, that he would not suffer himself to be petitioned, to confirm any Thing that his Predecessors had granted;Edition: 1738; Page: [336] whereas Tiberius, and his immediate Successors, no otherwise esteemed the Grants of their Predecessors to be good, than as they themselves also had granted them to the same Persons. That excellent Emperor Nerva, following the Example of Titus, in his Edict recorded by7 Pliny, speaks thus, Let no Man imagine that what he has obtained from another Prince, either privately or publickly, shall be by me revoked; that so if I confirm those Grants, he may be the more obliged to me; no Man's Congratulation stands in Need of new Petitions. But when on the other Hand Tacitus had related of Vitellius, how he had torn the Empire in Pieces, without any Regard to Posterity; and that all the World flocked about him to obtain his extravagant Gifts, some with Money purchasing his Favour, he adds, All wise Men looked upon those Grants as Edition: current; Page: [815] null and void,8 which could neither be given, nor received, without the Danger and Ruin of the State.
4. This also may here be added, that if by any Accident a Contract made by a King appear to be not only disadvantageous, but also pernicious to the State; so that at the Time when the Contract was so made (if it had been extended to that Case) it had been judged unlawful and unjust; then may that Contract be not so much revoked9 as declared no longer obliging, as if it were made conditionally of being void in that Case, without which Condition it could not have been justly made.
5. And what is here said of Contracts is true also10 in the Alienation of the People's Money, and of any other Things which the King has a Power by Law to alienate for the Publick Good; for here also is this Distinction to be observed, whether there is any plausible Reason forgiving, or otherwise alienating such Sort of Things.
6. But if the King shall by any Contract endeavour to alienate the Crown or any Part of his Kingdom, or of the Royal Patrimony, beyond what is permitted him, such a Contract shall be of no Force, as being made of what was not his own to dispose of. As much may be said of such Kingdoms as are limited or restrained; if the People have exempted Edition: current; Page: [816] certain Affairs, or certain Sorts of Engagements from the Power of the King. For to make such Acts valid, the Consent of the People by themselves, or their Representatives, is required, as we have shewed already, when we treated of Alienations. Which Distinctions being observed, it is easy to judge whether the Exceptions of Kings, who refuse to pay their Predecessors Debts, whose Heirs they are not, be just, or unjust, of which we may see many Examples in Bodine.
XIII. Which of the free Grants of Kings are revocable, and which not.XIII. Neither is that,1 which many affirm, to be allowed without Distinction, that the Favours of Princes generously granted, may at any Time be revoked; for some a King may give out of what is his own; and which have the Force of perfect Donations, unless they were expresly granted, during Pleasure only.2 Now these cannot be revoked, unless from Subjects by Way of Punishment, or for the Publick Good, for which also Satisfaction should be made, if possible: There areEdition: 1738; Page: [337] also other Benefits, which only take away the obliging Power of the Law, without any Contract, and these are revocable. For as a Law absolutely taken away, may always be absolutely restored; so also being in regard to a particular Person taken away, it may be in regard to a particular Person restored. For no Right is here acquired to the Prejudice of the Legislator's Authority.
XIV. Whether he whose the Crown really is, be bound by the Contracts of them who invade, or usurp the Kingdom.XIV. But by such Contracts as are made by Usurpers,1 or those who without any just Title invade a Kingdom, neither the People nor their lawful Princes shall be obliged; because such Invaders had no Right at all to bind them: However they shall be obliged for so much as turns to their Advantage, that is, in Proportion to what they are become the richer by that Means.
I. What publick Conventions are.I. Ulpian has divided all Conventions into publick or private.1 The publick he explains, not as some think, by a Definition, but by Examples. The first, Such as are made in Time of Peace. The second, when Generals agree some Things between themselves. By publick Agreements then he understands those which cannot be made, but by them who are invested with an Authority either Sovereign or Subordinate; by which they are distinguished, not only from the Contracts of private Persons, but also from the Contracts of Kings which they make in their private Affairs. Tho' even from these private Contracts a War is sometimes occasioned, but oftner from the Publick. Wherefore since we have largely treated of Conventions or Covenants in general; we shall now add something concerning this Kind, which is the most excellent of all others.
II. They are divided into Leagues, publick Engagements or Sponsions, and other Agreements.II. Now these publick Conventions, which the Greeks call συνθήας, Conventions or Accommodations, we may divide into Leagues, Sponsions or publick Engagements, and other Agreements.1Edition: current; Page: [818]
III. 1. The Difference between Leagues and Sponsions may be learnt out of the ninth Book of Livy,1 where he rightly tells us, that Leagues are such as are made by the Command of the Sovereign Power,III. The Difference between Leagues and Engagements or Sponsions, and how far publick Engagements oblige. whereby the whole Nation is exposed to the Wrath of the Gods, if they violate it. This used to be done among the Romans by the Heralds in the Presence of the King at Arms;2 but a Sponsion is when publick Persons, having no Order from the Sovereign Power, yet promise something relating to it. We read in Sallust,3 The Senate with abundance of Reason decreed, that without theirs and the People's Orders no Treaty could bemade. Hieronymus King of Syracuse, according to Livy,4 having contracted an Alliance with Hannibal, sent afterwards to Carthage, to turn that Alliance into a League. And therefore5 that of Seneca the Father, (since the Chief has made a League, the Roman People mayEdition: 1738; Page: [338] be said to have done it, and to be included in it) relates to those antient Generals, who had received a special Commission for that Purpose. Indeed6 in Monarchies the sole Power of making Leagues is in the King, according to Euripides in his Supplices.Edition: current; Page: [819]
For we must read it there, as we said, ὁρκωμωτεɩ̂ν and not ὁρκωμωτεɩ̂.
2. Now as inferior Magistrates cannot oblige the People; so neither can the lesser Part of the People oblige the Whole; which makes for the Romans7 against the Galli Senones, for the greater Part of the People Edition: current; Page: [820] was with the Dictator Camillus; but as it is in Gellius8 there is no treating with one and the same People in different Places at the same Time.
3. But let us enquire how far they are bound, who not being impowered by the People, do yet undertake for that which directly concerns them. Some perhaps may think, that if the Sponsors, or Persons engaging, use their utmost Endeavour to perform what they have undertaken, they are sufficiently disengag'd from their Word, according to what9 we have said before, concerning Promises made by a third Person. But the Nature of the Affair under Consideration, which includes a Sort of Contract, requires a stricter Obligation. For no Man in Contracts will give or promise any Thing of his own, but he expects some thing to be allowed him in the Lieu of it. Whence it is, that by the Civil Law, which will not allow of one Man's Promise for another Man's Fact,10 a Promise that engages that suchEdition: 1738; Page: [339] or such a Thing shall be confirmed and ratified11 by a third Person, does oblige the Promiser to pay Damages and Interest.
IV. Menippus 's Division of Leagues rejected.IV. Menippus, King Antiochus's Ambassador to the Romans, as1 Livy relates it, being guided by his own Interest more than by the Rules of Art, divided the Leagues of Princes and States into three Sorts, the first whereof is, when the Conqueror gives Laws to the Conquered; where it Edition: current; Page: [821] is in the Conqueror's Power, and left to his Discretion to determine what the Conquered shall have, and what he shall be deprived of. The second is, when two Enemies having had equal Advantage in War, make Peace on equal Conditions, so that by Vertue of their Agreements they may redemand and cause to be restored what is reciprocally due, and if either the one or the other has been disturbed in his Possession, during the War, the Difference is to be accommodated, either according to antient Right, or according to the mutual Profit and Advantage of both Parties. The third is, when they who never were Enemies, do enter into an Alliance, without giving or receiving Laws on either Side.
V. Leagues divided into those that injoin the same that the Law of Nature does; and from whence this arises.V. 1. But for our Part we shall make a more accurate Division, by saying1 that there are two Kinds of Leagues, either those that require such Things only, as are agreeable to the Law of Nature, or those that add something more to it. Leagues of the former Kind, are generally made between two Enemies upon the Conclusion of a War; and were formerly often made, and indeed were in some Sort necessary among those who before had never contracted any Engagement towards one another. And the Reason of it was, because as that Principle of Natural Right, which maintains that there is a Kind of Natural Relation between all Mankind,2 and therefore it is a heinous Crime for one Man to hurt another, was effaced of old before the Flood, so it was again some time after, by a general Corruption of Manners, so razed and obliterated,3 that it was Edition: current; Page: [822] accounted lawful to rob and plunder Strangers, tho' no War was proclaimed, which Epiphanius calls Σκυθισμὸς, the Scythian Fashion.
2. Hence that Question in Homer,4 Are you free Booters? Is a complaisant and inoffensive Inquiry,5 which also Thucydides takes notice of; and in the old Law of Solon you have the Companies ἐπὶ λείαν ἐρχομένων of free Booters;6 for as Justin says, Pyracy was to the Days of Tarquin7 an honourable Employment, it is the very same in that Maxim of the Roman Law,8 where it is declared, that if there beEdition: 1738; Page: [340] any Nation with whom the Romans have no Tye of Friendship or Hospitality, or Alliance, they are not to be reputed professed Enemies, but yet whatever they find in their own Country belonging to the Romans shall be lawful Prize, and if they take a Roman, he shall become their Slave; and the same is to be observed, if any one of them falls into the Hands of the Romans; in which Case too the Right of Postliminy shall be allowed. Thus the Corcyreans formerly, before the Peloponnesian War, were no Enemies to the Athenians, yet had they neither Peace nor Truce with them,9 as appears from the Speech of the Corinthians in Thucydides. So Sallust speaks of Bocchus,10 Nobis neque bello, neque pacecognitus, known Edition: current; Page: [823] to us neither by Peace or War. From hence to pillage Barbarians, or Strangers, was thought by Aristotle11 a very laudable Practice, and the Word Hostis, an Enemy, in the old Latin signifies no more than a Foreigner.12
3. Under this Kind I comprehend also Leagues, which provide for the Freedom of Commerce and Entertainment of Strangers on both Sides, as agreeable to the Law of Nature, whereof we have treated elsewhere; thus we find this Distinction used by Arco in Livy,13 in an Harangue of his to the Achaeans, where he does not insist upon any Confederacy, but only so good an Understanding, as might secure each other's Rights; that they might not protect and give Sanctuary to the fugitive Slaves of the Macedonians. All such Agreements the Greeks strictly call εἰρήνη, Peace, and oppose them to σπονδαɩ̂ς, to Treaties properly so called, as you may see in several Places, particularly in the Oration of Andocides upon the Peace with the Lacedemonians.14
VI. And into those that add something to it; and these are either upon equal Terms:VI. 1. The Conventions which add something to the Law of Nature, are concluded either on equal or unequal Terms.1 The equal are those, αἰ ἴσως καὶ κοινως ἐν ἀμϕοτέροις ἔχουσι, which are alike on both Sides, as Isocrates speaks in his Panegyrick. To which that of Virgil alludes.Edition: current; Page: [824]
And these the Greeks sometimes call συνθήκας simply, Alliances, sometimes συνθήκας ἐπὶ ἴση καὶ ὁμοίᾳ, Alliances upon the square; as you may find in Appian and Xenophon; and those upon unequal Conditions more properly, σπονδὰς, Leagues, and in respect to Inferiors, προστάγματα, Injunctions, or συνθήκας ἐκ τω̂ν ἐπιταγμάτων, Treaties of Injunction; which Demosthenes2 says are to be carefully avoided by all those who love Liberty, because they come very near a State of Slavery.Edition: 1738; Page: [341]
2. Both these Leagues are made either for the Sake of Peace, or for the Sake of some Alliance. Treaties of Peace, upon equal Terms, are generally made for the restoring of Prisoners, or Goods taken in War, and for mutual Security, of which I shall treat hereafter, when I come to speak of the Effects and Consequences of War. Treaties of Alliance upon equal Conditions, respect either Commerce, or the Joining of Forces, and Sharing the Expence of the War, or some other Matters. Treaties of Commerce may be various; as that no Custom shall be paid on either Edition: current; Page: [825] Side, which was in the old League between the Romans and Carthaginians,3 except only what was given to the Notary and the Crier; or that no more shall ever be demanded than what is at present paid, or that a certain Rate shall be fixed.
3. So also, in a Confederacy of War, that each Party shall contribute an equal Number of Foot, Horse, or Ships, and that either in all Wars, without Exception, which the Greeks call4 Συμμαχίαν, A Conjunction of Arms, which Thucydides thus explains, Τοὺς αὐτοὺς ἐχθροὺς καὶ ϕίλους νομίζειν, To look upon those who are Enemies and Friends to one, to be so to the other. And this Expression we often meet with in Livy, or only for the Security of their Countries, which the Greeks call ἐπιμαχίαν,5 A defensive League, or a Confederacy for one particular War, or against such a particular Enemy, or against all Enemies whatever, excepting their Allies, as in the League between the Carthaginians and Macedonians, mentioned by Polybius.6 Thus the Rhodians entered into Articles with Antigonus and Demetrius, to assist them against all Enemies, whatsoever, except Ptolomy.7 The like equal Leagues may be made in Respect of other Things; as, that8 neither Party shall erect any Forts on the other's Borders, that neither shall protect the other's Subjects,9 nor grant an Enemy leave to march through their Country.Edition: current; Page: [826]
VII. Or upon unequal, which are again divided.VII. 1. From what has been said of equal Leagues, we may easily understand what is meant by unequal ones; which Inequality may respect either the stronger or the weaker. That of the stronger is, when Assistance is promised, but none required again, or when more is promised on that Side than on the other. Unequal Conventions on the weaker Part, or, as Isocrates speaks in his Panegyrick, Τὰ τοὺς ἑτέρους ἐλάττον̂ντα παρὰ τὸ δίκαιον, Where one Side is depressed more than is just and reasonable, are those which we said are called Προστάγματα, Injunctions, or ἐπιτάγματα, Commands. And these are such as do either lessen, or not lessen, the sovereign Jurisdiction of the inferior Power.
2. An Alliance that lessens the sovereign Jurisdiction is such an one as was the second League between the Romans and the Carthaginians,1 in which it was provided, that the Carthaginians should make no War without the Leave of the Romans. And from that Time, as Appian observes, Καρχηδόνιοι Ῥωμαίοις ὑπήκουον ἔνσπονδοι, The Carthaginians by that League became dependent on the Romans.2 To this also may be referred a conditional Surrender, but that is not so much the lesEdition: 1738; Page: [342]sening the sovereign Jurisdiction, as the perfect transferring of it to another, of which we have treated elsewhere. Yet is such an Agreement sometimes called by the Name of a Treaty, as Livy, in his ninth Book, The Theates in Apulia requested, that they might be admitted to a League, not to be upon equal Terms, but under the Dominion of the Romans.
3. In an unequal Alliance, that does not lessen the Sovereignty, the Terms imposed, are either permanent or not. Those that are not permanent, Edition: current; Page: [827] are such as oblige the Payment of the Forces employed in the present Service,3 the demolishing Fortifications, the quitting some Places,4 the giving Hostages, the delivering up Elephants and Ships.5 The Conditions that are permanent are such as oblige all Reverence and Honour to the other's Power and Majesty. How far such an Alliance extends, we have elsewhere shewed. Next to this, is, that they account the Friends and Enemies of the other Party theirs, that they allow no Passage through their Country, nor Provisions, to any Troops that belong to those they are at War with; as also these less considerable Articles, as that they shall not fortify such and such Places, nor lead an Army thither, nor have above such a Number of Vessels, nor build any City, nor traffick, nor levy Soldiers in certain Places, nor fight against their Allies, nor supply their Enemies with Provisions, nor receive those who come from such and such Parts; that they renounce all former Treaties with others: Of all which you may see Instances in Polybius, Livy, and other Authors.
4. Unequal Leagues are made, not only between the Conquerors and Conquered, as Menippus supposed, but also between People of unequal Power, even such as never were at War with one another.
VIII. Alliances made with those who do not profess the true Religion are allowed by the Law of Nature.VIII. Concerning Leagues, it is often disputed whether they may be lawfully made with those who are not of the true Religion, which is not to be doubted in Respect to the Law of Nature only. For the Right of making Edition: current; Page: [828] Alliances is common to all Men, and admits of no Exception on the Account of Religion. The Question is then, whether by the Law of GOD it be lawful or not? which has been the Subject of frequent Controversy,1 not only among Divines, but among some Lawyers too, of which Number are Oldradus and Decianus.
IX. Nor universally forbidden by the Hebrew Law.IX. 1. Let us then first consider, what the Divine Right of the Old Testament directs in this Affair, and afterwards we will consult that of the New. We find that inoffensive Leagues, and such as tended to no one's Injury, might, before the Time of Moses, be contracted with People who were not of the true Religion. We have an Instance of this ina Jacob's Treaty with Laban, not to say any Thing ofb Abimelech, because it does not fully appear that he was an Idolater. Nor did the Mosaick Law make any Alteration here: Let the Aegyptians be a Precedent, who doubtless were Idolaters, yet the Hebrewsc were strictly forbid to abhor, or have any Aversion to them. But we must except the seven Nations, who were by the ALMIGHTY himself devoted to Death, and the Israelitesd appointed to execute that Sentence; for they persisting in their Idolatry, and refusing Subjection, the Jews were commanded not to spare them: To whom also the Amalekitese were added by the Divine Decree.Edition: 1738; Page: [343]
2. As to Leagues of Commerce, and the like, either for a mutual Advantage, or that of one Party only, that such might be made with Pagans, is allowable by the Law; for we find nothing against it. On the contrary, we have the Examples off David andg Solomon, who made a League with Hiram King of Tyre, where it is remarkable, that it is said in Holy Writ, that this League was made by Solomon according to the Wisdom that GOD had given him.Edition: current; Page: [829]
3. The Law of Moses indeed does especially command them to do Good to their ownh Nation, Ἀγαπᾳ̑ν τὸν πλησίον, To love their Neighbour. Besides, the peculiar Way of Living, and Form of Manners, prescribed to the Jews, could not well suffer them to have any familiar Conversation with Strangers. But hence it does not follow, that it was not lawful for them to do Good to Strangers, or that it was not also commendable, tho' the corrupt Interpretations of the modern Rabbins infer the contrary: Whence Juvenal observes of the Jews,
Where the Instance of not directing a Stranger in the Way, implies a Refusal of the least and most trifling Favours, Favours that cost them neither Pains nor Charge, which Cicero and Seneca acknowledge we should do to utter Strangers. And Tacitus, speaking of the same Jews, says, Inviolable in their Faith, always ready to assist one another, but to all the World besides they bear a mortal Hatred. Thus we read in the New Testament, that the Jews used Not Συγχρη̂σθαι, συνεσθίειν, κολλᾳ̑σθαι, προσέρχεσθαι,i to have any Dealings, not to eat, not to converse with, or come unto one of another Nation. And Apollonius Molo objected to them, Ὅτι μὴ παρεδέχοντο τοὺς ἄλλαις, &c. That they receive none, who entertain Notions of GOD different from them, nor will they have any Thing to do with those whose Method of Living is not intirely correspondent to theirs. And the Courtiers of Antiochus, in Diodorus, accuse the Jews, Μόνους ἁπάντων ἐθνω̂ν, &c. That they are of all People the most unsociable to Strangers, and take them all for Foes. And then there follows, Μηδὲνι ἄλλῳ, &c. They will admit no other Nation to their Table, nor even give them a good Wish. And presently they are charged with Μισανθρωπία, A detesting of all Mankind. And in Philostratus, Tyaneus speaks thus of the Jews, Οἳ βίον ἄμικτον ἑυρόντες, &c. They have found out so unconversable a Way of Living, that they will not so much as eat with Edition: current; Page: [830] other People. And accordingly in Josephus, very frequently, the Τὸ ἄμικτον, τὸ ἀσύμϕυλον, ἡ διαίτης ἀμιξία, the Jews Unsociableness, and Inhospitality, are thrown in their Teeth.
4. But CHRIST has, by his own Example, taught us, that this is by no Means the Meaning and Design of the Law, when he, who was himself the strictest Observer of it, did not scruplek to receive Water at the Hands of the Woman of Samaria. Nor did Davidl formerly make any Difficulty in retreating to People of another Religion, nor was he ever blamed for it. And Josephus introduces Solomon, when he dedicated the Temple, and begged of GOD that he would hear the Prayers even of Foreigners, when offered up there, delivering himself thus, Ἡμεɩ̂ς οὐκ ἀπάνθρωποι τὴν ϕύσίν ἐσμεν οὐδὲ ἀλλοτρίως πρὸς τοὺς οὐχ ὁμοϕύλους ἔχομεν, For we are not inhuman in our Natures, nor are we averse to those, who are not of the same Nation and Family with ourselves.1
5. From this Rule we are to except, not only the seven Nations before-mentioned, but also the Ammonites and Moabites, of whom it is written, Deut. xxiii. 6. Thou shalt not seek their Prosperity, (for so in this Passage, you had better render שלמם, than their Peace) nor their Good, all thy Days for ever. In which Words they were forbidden to make any League of Friendship with them; yet it gives them no Right to make War against them, without just Cause; or, perhaps,Edition: 1738; Page: [344] this Place may be rather understood, according to the Opinion of some of the Hebrew Doctors, to prohibit seeking Peace from them, but not the accepting of it when they themselves offered it: It is certain they were forbid to make War against the Ammonites, Deut. ii. 19. nor did Jephtham fight against them, till he had tried all the Ways of an equitable Accommodation; norn David, till provoked by intolerable Affronts. The remaining Question then is, whether it be lawful to enter into a confederate War with Infidels.Edition: current; Page: [831]
6. That this also was not unlawful before the Law, appears from the Example of2 Abraham, who with his Army assisted the wickedo Sodomites: Nor do we read, that the Law of Moses did in general alter any Thing in this Affair. Of the same Opinion were3 the Asmoneans, who were both very skilful in the Law, and great Respecters of it, witness their religious keeping of the Sabbath, wherein, however, they allowed the Use of Arms in their own Defence, but no otherwise: And yet these very Peoplep made an Alliance with the Lacedemonians, and the Romans, with the Consent both of Priests and People; nay, they offered up solemn Sacrifices for their Prosperity. But as to the Authorities alledged against this Opinion, they may have their particular Reasons.
7. For if there were any Kings or Nations (besides those mentioned in the Law) that were so wicked, that GOD, by his Prophets, had declared his Intent to destroy them, as hated by him, to undertake their Protection, or to join in Confederacy with them, was without Doubt unlawful. To this Purpose is that of the Prophet4 to Jehosaphat, for making a League with Ahab;q Shouldest thou help the Wicked, and love them Edition: current; Page: [832] 5that hate the LORD? Therefore is Wrath upon thee from before the LORD. For Michaiah the Prophet had before foretold the ill Success of that War. And that of another Prophet to Amazia.r Let not the Army of Israel go with thee, for the LORD is not with Israel; to wit, with all the Children of Ephraim. But this was not from the Nature of the Alliance, but on the Account of the peculiar Quality of the Person, as may be evinced from hence, that GOD did sharply rebuke and threatens Jehosaphat, for entering into a Treaty of Commerce with Ahazia King of Israel, tho' that Treaty was no otherwise than what David and Solomon had made with Hiram, on which Account we told you, they were not only not reproved, but even commended. For as to that Clause, that Ahazia did very wickedly, it is to be understood of the whole Course of his Life, which had rendered GOD an Enemy to him, and all his Undertakings: As this Story is explained in the Book called The Constitutions of Clement VI. Chap. 18.
8. And this also must be observed, that the Case of those, who being descended of Jacob, had forsaken the LORD whom they knew, was far worse than that of mere Strangers; for against such Apostates, all the rest of the People were,6 by the Law of Deut. xiii. 13. commanded to take up Arms.Edition: 1738; Page: [345]
9. Sometimes the Leagues themselves are blamed, for the wicked Disposition of those who made them; so the Prophet reproves Asa,t for applying himself to the Syrian, in distrust to GOD; which he shewed by sending the Things consecrated to GOD, unto this Syrian; so he was also blamedu in his Sickness, for putting his Confidence more in the Physicians than in GOD. And therefore it no more follows from this History, that it is in itself, and in general, an ill Thing to enter into an Edition: current; Page: [833] Alliance with such People as the Syrians, than that it is so to consult a Physician. For the bad Disposition of the Mind, sometimes makes that unlawful which is not so in itself. As David'sw numbering the People; Hezekiah's shewing hisx Treasures. So in one Place the Confidence the Jewsy had in the Aegyptians is reproved; when yet Solomonz was allowed to be related to them by Marriage.
10. To which must be added, that the Hebrews under the old Law, had the expressaa Promises of GOD for Victory, provided they kept the Law, and therefore they had the less Reason to have Recourse to human Assistance. There are also many excellent Sentences in Solomonbb to dissuade us from associating with the Wicked; but these are the Advices of Prudence, and not Precepts of a Law; and these very Advices themselves, as most of those Maxims which regard Morality, have several Exceptions to them.
X. Nor by the Christian Law.X. 1. But the Gospel has made no Alterations in this Respect; nay, it gives a greater Encouragement to such Leagues, by Vertue of which, those who are not of the true Religion may be relieved in a just Cause; forasmuch as we are to do Good unto all Men, when an Opportunity offers; and this not only as a Thing commendable, and left to our Liberty and Discretion, but as what we are commanded and obliged to. For by the Example of GOD,a who makes his Sun to arise on the Just and on the Unjust, and sends his Rain on the Wicked as well as the Righteous, we are taught to exclude no Man from the Benefit of our Kindness. Excellently does Tertullian say, As long as GOD confined his Covenant to Israel, it was with Reason that he bad them shew Mercy to their Brethren only. But as soon as ever he gave to CHRIST the Heathen for his Inheritance, and the utmost Parts of the Earth for his Possession, and what Hosea had spoken Edition: current; Page: [834] began to be fulfilled;1 The Nation which were not my People, is now my People, and she who had not obtained Mercy, has now obtained Mercy. From that Time has CHRIST extended his Law of Charity to all Mankind, excluding none from his Compassion any more than from his Call.
2. Which, however, must be understood with some Degrees of Allowance, for we are to do Good unto all Men, but especially to those of the same Religion. So in Clement's Constitutions, Πα̂σιν οὐ̑ν δίκαιον διδόναι ἐξ ὀικείων πόνων· προτιμητέον δε τοὺς ἀγίους. We must give of our Labours to all, but prefer the Saints.2 A perfect Liberality (says St. Ambrose) must be regulated by the Religion, the Occasion, the Place, the Time, in such a Manner as that you may chiefly exercise it towards those of the Houshold of Faith.3 So Aristotle, Οὐ γὰρ ὁμοίως προσήκει συνήθων, καὶ ὀθνείων ϕροντίζειν, For there is no Reason that we should take the same Care of Strangers as of Friends.4
3. Nor is our living together, and our familiar Conversation with Men of another Religion forbid; nor are we even denied all Manner of Commerce with those who are more inexcusable than these, such as are Apostates from, and Contemners of, the Rule of Christian Discipline, but only an unnecessary Familiarity, and notb what may give one Hopes of their Conversion. For as to that of St. Paul,c Be not unequally yoked with Unbelievers; for what Fellowship hath Righteousness withEdition: 1738; Page: [346] Unrighteousness, and what Communion has Light with Darkness, and what Concord hath CHRIST with Belial, or what Part hath he who believeth with an Infidel? It relates to those who were present at their Idol-Feasts, and so did either really commit Idolatry, or at least seemed to do so. Which is plain from the following Words,d What Agreement hath the Temple of GOD with Idols? And to this Effect is what you have in the first Epistle Edition: current; Page: [835] to the Corinthians, Ye cannot be Partakers of the Table of the LORD, and of the Table of Devils.
4. Nor must we conclude, that it is unlawful to make Treaties and Alliances with Pagans and Infidels, because we are not to put ourselves voluntarily under their Government, or to intermarry with them; for in both these Cases there is evidently more Danger of being exposed to the Temptation of renouncing the true Religion, or at least more Difficulty in maintaining the Profession of it, than in the other Affair. Besides these Engagements are more lasting, and there is a greater Freedom of Choice in Marriages; whereas Leagues must be entered into, according as the Conjuncture of Time and Place requires. But as there is no Harm in doing Good to Infidels, so neither is there any in desiring their Assistance, ase Saint Paul did that of Caesar, and of the Tribune.
XI. Cautions about such Leagues.XI. 1. And therefore this is not a Thing in itself evil, or always unlawful, but only1 in Regard to Circumstances. For which Reason we ought to take particular Care, that by our too intimate Conversation we do not infect or scandalize the Weak; and to remedy this it will be very proper, that the Dwelling of such People should be in some separate Place, as the Israelites lived by themselves, and at a Distance from the Aegyptians; for that of Anaxandridas is not without its just Grounds,
And to this Purpose is what we have elsewhere alledged, concerning the Scruple which the Jews and Christians had, about carrying Arms under the Command of Pagans.
2. But if such a Confederacy should very much augment the Power of the Infidels, it were better to abstain from it, unless upon absolute Necessity; and what Thucydides said in a like Case, is very much to the present Purpose, Ἀνεπίϕθονον δε ὅσοι ὥσπερ καὶ ἡμεɩ̂ς ὑπὸ τω̂ν, &c. They are not to be blamed who are treacherously invaded, as we are by the Athenians, if they endeavour to get the Assistance, not only of the Greeks, but of the Barbarians. For every Right is not enough to justify us in the doing that which may, if not directly, yet indirectly, prejudice our Religion. For we must first seek the Kingdom of GOD, (Matt. vi. 33.) that is, the Propagation of the Gospel.
3. It were to be wished, that many Princes and People, who at this Day have the Government in their Hands, would be mindful of that generous and pious Advice which Fulk, Archbishop of Rheimes,3 once gave to Charles the Simple, Who would not tremble to consider, that you should4 seek the Friendship of GOD's Enemies, and make Use of the odious Arms and Alliances of Pagans, to the Ruin andEdition: 1738; Page: [347] Destruction of Christianity? For there is very little Difference between confederating with Infidels, and the renouncing of GOD to worship Idols. And Alexander in Arrian, says, Ἀδικεɩ̂ν μεγάλα τοὺς στρατευομένους, &c. That they were guilty of the most enormous Baseness, who would bear Arms for the Barbarians against Greece, contrary and in Prejudice to the Rights and Laws of the Greeks.5Edition: current; Page: [837]
XII. All Christians obliged to enter into League against the Enemies of Christianity.XII. I shall here add this, that since all Christians are Members of one Body, which are commanded to have a Fellow-feeling of each other's Sufferings, as that Command affects every single Person, so should it every Nation as they are a Nation, and all Kings as they are Kings. Nor ought any one to serve CHRIST in his Person only, but also to the utmost of that Power he is entrusted with. But this neither Kings nor People can well do,1 whilst an Enemy of the true Religion invades the States of Christendom,2 unless they heartily assist and stand by one another; which cannot be done conveniently, without a general League and Confederacy to that very Purpose; and such a League has formerly been made, and the Roman Emperor3 was unanimously chosen Head of it; all Christians then are obliged to contribute either Men or Money, according to their Ability, to this common Cause; and how can they be excused who refuse it, I cannot see, unless they are hindered by an unavoidable War, or some such great Calamity.
XIII. If several of our Allies are at War, which of them we ought to assist; explained by Distinctions.XIII. 1. Another Question which used to arise, is, Whether of them, supposing several Nations engaged in War with another, we are obliged to Edition: current; Page: [838] assist, they being all of them equally our Allies?1 In the first Place, we must remember what I said before, that nothing can bind us to an unjust War. And therefore2 he of the Confederates is to be preferred who has the juster Cause, if it be against one who is not our Confederate; nay, tho' it be against another Confederate. Thus Demosthenes, in his Oration about Megalopolis,3 shews, that the Athenians wereEdition: 1738; Page: [348] obliged to Edition: current; Page: [839] help their Confederates the Messenians, against their other Confederates the Lacedemonians, if the Lacedemonians were unjust Aggressors; which holds true, unless it be expressed in our Articles not to send Aid against such an Ally. In the Agreement which Hannibal made with the Macedonians, was this Clause, We will be Enemies to your Enemies, if you except the Kings, Cities, and maritime Towns which are in League and Amity with us.4
2. But if our Confederates engaged in War, have each of them an unjust Cause, (which may sometimes happen) we are then to stand Neuters. So Aristides in his fifth Leuctric, εἰ μὲν ἐπ' ἄλλους ἐκάλουν, &c. If either of our Allies had desired our Assistance against Strangers, we would presently have complied with the Request; but if they want us to be employed with one against the other, we will not concern ourselves at all.5
3. If our Confederates be engaged in a just War against one who is not our Ally, and require our Assistance; if we are able, we ought to send each of them either Men or Money, as is practised in the Case of personal Creditors.6 But if a Prince be demanded personally to assist both, having Edition: current; Page: [840] so promised; because his Person cannot be divided, it is reasonable that he7 should prefer him with whom he has been the longest in Alliance, as the Acarnanians told the Lacedemonians, in Polybius.8 The like Answer was returned to the Campanians, by the Roman Consul, When we enter into new Treaties and Friendship, we ought to take special9 Care that we do not violate and infringe the old.Edition: 1738; Page: [349]
4. But this will also admit of the Exception, unless the latter League has something in it beyond a bare Promise,10 for it may include, in some Sort, the transferring of Property, and imply somewhat of Subjection.11 And thus in the Case of a Sale, we say the first Purchase is preferred, unless the latter has actually transferred the Property. So Livy reports of the Nepesines,12 that the Faith given upon their Surrender, was more Edition: current; Page: [841] obliging than that of former Leagues. Some distinguish between these more nicely; but what I have said, as they are nearer to Simplicity, so are they to the Truth.
XIV. Whether a League may be renewed tacitly.XIV. A League made only for a Time, upon the Expiration of that Time, is not presumed to be tacitly renewed,1 unless such Acts intervene as can bear no other Construction;2 for a new Obligation must not easily be presumed.
XV. Whether a Violation on one Side frees the other from being obliged.XV. If either Party break the League, the other is freed,1 because each Article of the League has the Force of a Condition. Thus we find in Thucydides, Λύουσι τὰς σπονδὰς οὐχ οἱ, &c. The League is violated, not by those who being deserted apply themselves to others for Assistance, but by those who do not perform in Deeds, what they promised upon their Oaths.2 And in another Place, Ὁ τι δ' ἂν τούτων παραβαίνωσιν, &c. If either Party offend against the Articles they have sworn to, never so little, the League is broke.3 But this is only true, in Case it be not agreed on to the contrary, which sometimes is done, that a League solemnly sworn to should not be esteemed broke upon every slight Offence.Edition: current; Page: [842]
XVI. How far the Sponsors are obliged, if what they undertake for be disallowed; where also of the Caudine Engagement.XVI. 1. There may be as many Sorts and Subjects of Sponsions, as there are of Leagues.1 For these differ only in the Capacities and Power of the Persons who make them. But there are two Questions generally started about Sponsions. The first is, how far the Persons engaging are obliged, in Case the Prince or the State should disapprove of the Engagement, whether they are obliged to indemnify the other Party, or whether to put Affairs into the same Posture they were in before the Engagement, or whether their Persons are to be delivered up. The first seems agreeable to the Civil Law of the Romans;2 the second to Equity and Reason; which the Tribunes of the People, L. Livius and Q. Melius, urged in the Caudine Controversy. The third is approved by Use and Custom, as appears by the Examples of the two remarkable Sponsions made at Caudium and Numantia. But this is always to be laid down as a Maxim, that the Sovereign is in no Manner obliged by Treaties thus concluded without his Order. And therefore it was very well said of Posthumius to the Romans,3 You have promised the Enemy nothing; nor have you ordered any of your Citizens to engage for you; and therefore you have nothing to do with us, to whom you gave no Order; nor with the Samnites, with whom ye made no Agreement. And again, I absolutely deny, that any Contract can oblige the People, which is made without their Order.4 Nor is it with any less Judgment and Reason said, that If the People may be thus obliged to any one Thing they may be so to all.
2. And therefore the People of Rome were neither obliged to indemnify the Samnites, nor to put Affairs into the same Posture they were in before. But if theEdition: 1738; Page: [350] Samnites would have any Dealings with the People of Rome,5 they should have kept their Army at the Furcae Caudinae, Edition: current; Page: [843] and have sent Embassadors to Rome, to treat with the Senate and People, concerning a League and a Peace, that they themselves might have judged at what Price they would purchase the Preservation of their Army. And then if they had not stood to their Agreement, they might justly have said, as they actually did say, what Velleius relates,6 that the Numantines alledged, that the Violation of the publick Faith was not to be expiated by the Blood of a single Person.
3. It may more plausibly be said,7 that the whole Army was obliged by that Agreement; and certainly, this would be entirely just, if the Sponsors Edition: current; Page: [844] had made the Contract by their Order,8 and in their Name; as we read that was which9 Hannibal made with the Macedonians. But if the Samnites were contented with the Word and Honour of10 the Sponsors, and11 the six hundred which they deEdition: 1738; Page: [351]sired for Hostages, they might even thank themselves. On the other Hand, if the Sponsors had pretended to have had a publick Commission for contracting with them, Edition: current; Page: [845] 12 they had then been obliged to have made Restitution and Satisfaction for the Damage occasioned by their Fraud. But if that did not appear, they were still obliged to make good what the other Party might reasonably be supposed to have suffered on the Account of not ratifying the Treaty, according to the very Nature of the Affair. And in this Case, not only their Bodies, but also their Estates, would have been obliged to the Samnites, unless some Penalty had been particularly expressed, in that Agreement, in lieu of it. For as to the Hostages, it was positively agreed, that they, if the Treaty was not confirmed and complied with, should answer it with their Heads.13 But whether the same Punishment was to be inflicted on the Sponsors, is what we are in the Dark about. For when the Penalty is stipulated after such a Manner, the Result of it is this, that if the Fact engaged for cannot be performed, nothing else can be demanded from that Obligation; because in this Case, something that is certain is agreed on, instead of some uncertain Compensation, that might possibly accrue. And it was the general Opinion of those Times, that one's Life might lawfully be engaged on such Occasions.
4. But among us who think otherwise, it is my Sentiment,14 that by Vertue of an Agreement made without the Order of the sovereign Power, the Estate of the Sponsor stands first engaged for Damages and Interest, and if that be not sufficient, his personal Liberty.15 Fabius Maximus, when the Senate refused to ratify an Agreement made by him with the Enemies, sold his own Land for two hundred thousand Sesterces, and so discharged his Promise. But the Samnites very justly ordered, that16 Brutulus Papius, who had broke a Truce, should, Body and Goods, be delivered up to the Enemy.Edition: current; Page: [846]
XVII. Whether a Sponsion or Engagement not disapproved of, does by its being known and passed over in Silence lay an Obligation; this explained with some Distinctions: Where also of Lutatius's Treaty.XVII. 1. Another Question is, Whether if the sovereign Power be acquainted with the Agreement, and yet is silent, it shall not be obliged to stand to it? Here we must first distinguish, whether the Agreement were purely and simply made, or whether upon Condition of its being ratified by the sovereign Power; for if it were conditional, that Condition not being performed, (for Conditions ought to be1 expressly performed) the Sponsion is of no Force. Like that of Lutatius with the Carthaginians,2 which the People of Rome declared was not made by their Order; and therefore a new Treaty was made by publick3 Deliberation.
2. In the next Place we should know, whether there has been any Thing on the Part of the Sovereign besides bare Silence; for Silence alone is not enough to prove a Consent, without some Thing or Deed, which probably would not have been, if that Agreement had not been approved of, as we have declared already, when we treated of relinquishing a Property. But if any such Acts happen, which cannot probably be referred to another Cause, then it may justly be supposed to be ratified, as Cicero, for Balbus, well observes in the Case of those of Cadis.Edition: 1738; Page: [352]
3. The Romans pleaded Silence4 against the Carthaginians, upon the Agreement made by Asdrubal; but because it was expressed in negative Terms, That the Carthaginians should not pass the River Iberus,5 it could scarcely be allowed, that a bare Silence should be enough here to ratify Edition: current; Page: [847] another's Fact, since no Act properly theirs could follow, till the Carthaginians, attempting to pass that River, should be forbid by the Romans, and should obey accordingly. For such an Act has the Force of a positive Act; nor must it be reckoned among such as are merely negative. Now if that Agreement made by Lutatius had consisted of many Parts, and it had always appeared, that the Romans had observed the other Parts, tho' deviating from common Right, this had been Conjecture enough to prove that the Agreement was firmly ratified.
4. It now remained, that we should speak of such Agreements as Officers and Soldiers make, not concerning those Things which belong to the sovereign Power, but such as relate to their own private Affairs, or for which they have a Permission granted them. But we shall have a better Opportunity to treat of these, when we come to the Incidents of War.6
I. How Promises do outwardly oblige.I. 1. If we respect the Promiser only, he is obliged to perform freely, what he was willing to be obliged to. When you promise, says Cicero,1 we must consider rather what you mean than what you say. But because the inward Acts and Motions of the Mind are not in themselves discernible, and there would be no Obligation at all by Promises, if every Man were left to his Liberty, to put what Construction he pleased upon them, therefore some certain Rule must be agreed on, whereby we may know, what our Promises oblige us to; and here natural Reason will tell us, that the Person to whom the Promise is given, has a Power to force him who gave it, to do what the right Interpretation of the Words of his Promise does require. For otherwise no Business could come to a Conclusion, which in moral Things is reckoned impossible. Perhaps it was in this Sense that Isocrates, treating of Agreements, in his Prescription against Callimachus, said Τούτῳ νόμῳ Κοινῷ πάντες ἄνθρωποι διατελον̂μεν χρώμενοι, (as the learned Peter Faber has judiciously corrected that Passage) We always make use of this Law, as a Law that is common to all Mankind,2 Edition: current; Page: [849] not only the Greeks, but the Barbarians too, as the same Author had a little before expressed it.Edition: 1738; Page: [353]
2. And to this agrees that Clause in the antient Form of Leagues, mentioned by Livy,3 Without any Trick or Collusion,4 just as the Words are now used and understood. The best Rule of Interpretation is to guess at the Will by the most probable Signs,5 which Signs are of two Sorts, Words and Conjectures; which are sometimes considered separately, sometimes together.
II. Words to be understood as commonly taken unless there are good Conjectures to the contrary.II. If no Conjecture guides us otherwise, the Words are to be understood according to their Propriety,1 not the grammatical one, which regards the Etymon and Original of them, but what is vulgar and most in Use, for
And therefore it was a foolish pitiful Shift that2 the Locrians made Use of, when, having put some Mould into their Shoes, and carrying some Heads of Garlick privately on their Shoulders, they swore they would keep the Articles of the Treaty, as long as they carried those Heads on their Shoulders, and trod on that Earth, and then threw the Earth out of their Shoes, and the Heads of Garlick from their Shoulders, as if by that poor Means they were absolved from their Oaths; which Story is in Polybius. We have also several Examples of the like Treachery in Polyaenus, Edition: current; Page: [850] 3 which there is no Occasion to mention, because no Body doubts them. But Cicero4 well observed, that this is not the Way to prevent Perjury, but to render it more criminal.
III. Terms of Art are to be explained according to the respective Art they belong to.III. But1 Terms of Art, which the common People are very little acquainted with, should be understood as explained by them who are most experienced in that Art, as what Majesty is, what Parricide; which the Professors of Rhetorick refer to the common Place of Definition.2 For, as Cicero says in his first of the Academicks, The Terms of Logick are not common Words, but peculiar to that Subject, as indeed are the Terms of almost every Art. So when in Treaties the Word Army is used, it is to be understood of a Multitude of Soldiers, that publickly invade another's Dominions. For Historians generally distinguish between those who plunder a Country privately, like Robbers, and those who do it openly with regular Troops. Where fore the best Way to judge what Numbers make an Army, is by the Strength of the Enemies. Cicero reckons six Legions, with some Auxiliaries, an Army.3 Polybius said a compleat Roman Army was 16000 Romans, and 20000 Allies,4 but a less Number may sometimes do it. Ulpian calls him a General who commanded, tho' but one Legion, with its Auxiliaries;