CHAPTER XXX.

HISTORY OF MORAL AND POLITICAL PHILOSOPHY AND OF JURISPRUDENCE, FROM 1650 TO 1700.

SECT. I.

ON MORAL PHILOSOPHY.

_Pascal’s Provincial Letters--Taylor--Cudworth--Spinosa--Cumberland’s Law of Nature--Puffendorf’s Treatise on the same Subject--Rochefoucault and La Bruyere--Locke on Education--Fenelon._

|Casuistry of the Jesuits.|

|Pascal’s Provincial Letters.|

1. The casuistical writers of the Roman church, and especially of the Jesuit order, belong to earlier periods; for little room was left for anything but popular compilations from large works of vast labour and accredited authority. But the false principles imputed to the latter school now raised a louder cry than before. Implacable and unsparing enemies, as well as ambitious intriguers themselves, they were encountered by a host of those who envied, feared, and hated them. Among those none were such willing or able accusers as the Jansenists whom they persecuted. Pascal, by his Provincial Letters, did more to ruin the name of Jesuit than all the controversies of Protestantism, or all the fulminations of the parliament of Paris. A letter of Antony Arnauld, published in 1655, wherein he declared that he could not find in Jansenius the propositions condemned by the pope, and laid himself open to censure by some of his own, provoked the Sorbonne, of which he was a member, to exclude him from the faculty of theology. Before this resolution was taken, Pascal came forward in defence of his friend, under a fictitious name, in the first of what have been always called Lettres Provinciales, but more accurately Lettres écrites par Louis de Montalte à un Provincial de ses Amis. In the first four of them he discusses the thorny problems of Jansenism, aiming chiefly to show that St. Thomas Aquinas had maintained the same doctrine on efficacious grace which his disciples the Dominicans now rejected from another quarter. But he passed from hence to a theme more generally intelligible and interesting, the false morality of the Jesuit casuists. He has accumulated so long a list of scandalous decisions, and dwelled upon them with so much wit and spirit, and yet with so serious a severity, that the order of Loyola became a bye-word with mankind. I do not agree with those who think the Provincial Letters a greater proof of the genius of Pascal than his Thoughts, in spite of the many weaknesses in reasoning which the latter display. They are at present, finely written as all confess them to be, too much filled with obsolete controversy, they quote books too much forgotten, they have too little bearing on any permanent sympathies, to be read with much interest or pleasure.

|Their truth questioned by some.|

2. The Jesuits had, unfortunately for themselves, no writers at that time of sufficient ability to defend them; and being disliked by many who were not Jansenists, could make little stand against their adversaries, till public opinion had already taken its line. They have since not failed to charge Pascal with extreme misrepresentation of their eminent casuists, Escobar, Busenbaum, and many others, so that some have ventured to call the Provincial Letters the immortal liars (les immortelles menteuses). It has been insinuated, since Pascal’s veracity is hard to attack, that he was deceived by those from whom he borrowed his quotations. But he has declared himself, in a remarkable passage, not only that far from repenting of these letters he would make them yet stronger if it were to be done again, but that although he had not read all the books he has quoted, else he must have spent great part of his life in reading bad books, yet that he had read Escobar twice through, and with respect to the rest, he had not quoted a single passage without having seen it in the book, and examined the context before and after, that he might not confound an objection with an answer, which would have been reprehensible and unjust[877]: it is therefore impossible to save the honour of Pascal, if his quotations are not fair. Nor did he stand alone in his imputations on the Jesuit casuistry. A book called Morale des Jesuites, by Nicolas Perrault, published at Mons in 1667, goes over the same ground with less pleasantry but not less learning.

[877] Œuvres de Pascal, vol. i., p. 400.

|Taylor’s Ductor Dubitantium.|

3. The most extensive and learned work on casuistry which has appeared in the English language is the Ductor Dubitantium of Jeremy Taylor, published in 1660. This, as its title shows, treats of subjective morality, or the guidance of the conscience. But this cannot be much discussed without establishing some principles of objective right and wrong, some standard by which the conscience is to be ruled. “The whole measure and rule of conscience,” according to Taylor, “is the law of God, or God’s will signified to us by nature or revelation; and by the several manners and times and parts of its communication it hath obtained several names:--the law of nature--the consent of nations--right reason--the Decalogue--the sermon of Christ--the canons of the apostles--the laws ecclesiastical and civil of princes and governors--fame or the public reputation of things, expressed by proverbs and other instances and manners of public honesty.... These being the full measures of right and wrong, of lawful and unlawful, will be the rule of conscience and the subject of the present book.”

|Its character and defects.|

4. The heterogeneous combination of things so different in nature and authority, as if they were all expressions of the law of God, does not augur well for the distinctness of Taylor’s moral philosophy, and would be disadvantageously compared with the Ecclesiastical Polity of Hooker. Nor are we deceived in the anticipations we might draw. With many of Taylor’s excellencies, his vast fertility and his frequent acuteness, the Ductor Dubitantium exhibits his characteristic defects; the waste of quotations is even greater than in his other writings, and his own exuberance of mind degenerates into an intolerable prolixity. His solution of moral difficulties is often unsatisfactory; after an accumulation of arguments and authorities we have the disappointment to perceive that the knot is neither untied nor cut; there seems a want of close investigation of principles, a frequent confusion and obscurity, which Taylor’s two chief faults, excessive display of erudition and redundancy of language, conspire to produce. Paley is no doubt often superficial, and sometimes mistaken; yet in clearness, in conciseness, in freedom from impertinent reference to authority, he is far superior to Taylor.

5. Taylor seems too much inclined to side with those who resolve all right and wrong into the positive will of God. The law of nature he defines to be “the universal law of the world, or of mankind, to which we are inclined by nature, invited by consent, prompted by reason, but which is bound upon us only by the command of God.” Though in the strict meaning of the word, law, this may be truly said, it was surely required, considering the large sense which that word has obtained as coincident with moral right, that a fuller explanation should be given than Taylor has even intimated, lest the goodness of the Deity should seem something arbitrary and precarious. And, though in maintaining, against most of the scholastic metaphysicians, that God can dispense with the precepts of the Decalogue, he may be substantially right, yet his reasons seem by no means the clearest and most satisfactory that might be assigned. It may be added, that in his prolix rules concerning what he calls a probable conscience, he comes very near to the much decried theories of the Jesuits. There was indeed a vein of subtlety in Taylor’s understanding which was not always without influence on his candour.

|Cudworth’s immutable morality.|

6. A treatise concerning eternal and immutable morality, by Cudworth, was first published in 1731. This may be almost reckoned a portion of his Intellectual System, the object being what he has declared to be one of those which he had there in view. This was to prove that moral differences of right and wrong are antecedent to any divine law. He wrote therefore not only against the Calvinistic school, but in some measure against Taylor, though he abstains from mentioning any recent author except Descartes, who had gone far in referring all moral distinctions to the arbitrary will of God. Cudworth’s reasoning is by no means satisfactory, and rests too much on the dogmatic metaphysics which were going out of use. The nature or essence of nothing, he maintains, can depend upon the will of God alone; which is the efficient, but not the formal, cause of all things; a distinction not very intelligible, but on which he seems to build his theory.[878] For moral relations, though he admits that they have no objective existence out of the mind, have a positive essence, and therefore are not nothing; whence, it follows that they must be independent of will. He pours out much ancient learning, though not so lavishly as in the Intellectual System.

[878] P. 15.

|Nicole--La Placette.|

7. The urgent necessity of contracting my sails in this last period, far the most abundant as it is in the variety and extent of its literature, restrains me from more than a bare mention of several works not undeserving of regard. The Essais de Morale of Nicole are less read than esteemed, says a late biographer.[879] Voltaire however prophesied that they would not perish. “The chapter especially,” he proceeds, “on the means of preserving peace among men is a masterpiece to which nothing equal has been left to us by antiquity.”[880] These Essays are properly contained in six volumes; but so many other pieces are added in some editions that the collection under that title is very long. La Placette, minister of a French church at Copenhagen, has been called the Protestant Nicole. His Essais de Morale, in 1692 and other years, are full of a solid morality, rather strict in casuistry, and apparently not deficient in observation and analytical views of human nature. They were much esteemed in their own age. Works of this kind tread so very closely on the department of practical religion that it is sometimes difficult to separate them on any fixed principle. A less homiletical form, a comparative absence of scriptural quotation, a more reasoning and observing mode of dealing with the subject, are the chief distinctions. But in the sermons of Barrow and some others we find a great deal of what may be justly called moral philosophy.

[879] Biog. Univ.

[880] Siècle de Louis XIV.

|Other writers.|

8. A book by Sharrock, De Officiis secundum Rationis Humanæ Dictata, 1660, is occasionally quoted, and seems to be of a philosophical nature.[881] Velthuysen, a Dutch minister, was of more reputation. His name was rather obnoxious to the orthodox, since he was a strenuous advocate of toleration, a Cartesian in philosophy, and inclined to judge for himself. His chief works are De Principiis Justi et Decori, and De Naturali Pudore.[882] But we must now pass on to those who have exercised a greater influence in moral philosophy, Cumberland and Puffendorf, after giving a short consideration to Spinosa.

[881] Cumberland (in præfatione) De Legibus Naturæ.

[882] Biog. Univ., Barbeyrac’s notes on Puffendorf, passim.

|Moral system of Spinosa.|

9. The moral system, if so it may be called, of Spinosa, has been developed by him in the fourth and fifth parts of his Ethics. We are not deceived in what might naturally be expected from the unhesitating adherence of Spinosa to a rigorous line of reasoning, that his ethical scheme would offer nothing inconsistent with the fundamental pantheism of his philosophy. In nature itself, he maintains as before, there is neither perfection nor imperfection, neither good nor evil; but these are modes of speaking, adopted to express the relations of things as they appear to our minds. Whatever contains more positive attributes capable of being apprehended by us than another contains, is more perfect than it. Whatever we know to be useful to ourselves, that is good; and whatever impedes our attainment of good is evil. By this utility Spinosa does not understand happiness, if by that is meant pleasurable sensation, but the extension of our mental and bodily capacities. The passions restrain and overpower these capacities; and coming from without, that is, from the body, render the mind a less powerful agent than it seems to be. It is only, we may remember in a popular sense, and subject to his own definitions, that Spinosa acknowledges the mind to be an agent at all; it is merely so, in so far as its causes of action cannot be referred by us to anything external. No passion can be restrained except by a stronger passion. Hence, even a knowledge of what is really good or evil for us can of itself restrain no passion; but only as it is associated with a perception of joy and sorrow, which is a mode of passion. This perception is necessarily accompanied by desire or aversion; but they may often be so weak as to be controlled by other sentiments of the same class, inspired by conflicting passions. This is the cause of the weakness and inconstancy of many, and he alone is wise and virtuous who steadily pursues what is useful to himself; that is, what reason points out as the best means of preserving his well-being, and extending his capacities. Nothing is absolutely good, nothing therefore is principally sought by a virtuous man, but knowledge, not of things external, which gives us only inadequate ideas, but of God. Other things are good or evil to us, so far as they suit our nature or contradict it; and so far as men act by reason, they must agree in seeking what is conformable to their nature. And those who agree with us in living by reason, are themselves of all things most suitable to our nature; so that the society of such men is most to be desired; and to enlarge that society by rendering men virtuous, and by promoting their advantage when they are so, is most useful to ourselves. For the good of such as pursue virtue may be enjoyed by all, and does not obstruct our own. Whatever conduces to the common society of mankind and promotes concord among them is useful to all; and whatever has an opposite tendency is pernicious. The passions are sometimes incapable of excess, but of this the only instances are joy and cheerfulness; more frequently they become pernicious by being indulged, and in some cases, such as hatred, can never be useful. We should therefore, for our own sakes, meet the hatred and malevolence of others with love and liberality. Spinosa dwells much on the preference due to a social above a solitary life, to cheerfulness above austerity, and alludes frequently to the current theological ethics with censure.

10. The fourth part of the Ethics is entitled, On Human Slavery, meaning the subjugation of the reason to the passions; the fifth, On Human Liberty, is designed to show, as had been partly done in the former, how the mind or intellectual man is to preserve its supremacy. This is to be effected, not by the extinction, which is impossible, but the moderation of the passions; and the secret of doing this, according to Spinosa, is to contemplate such things as are naturally associated with affections of no great violence. We find that when we look at things simply in themselves, and not in their necessary relations, they affect us more powerfully; whence it may be inferred that we shall weaken the passion by viewing them as parts of a necessary series. We promote the same end by considering the object of the passion in many different relations, and, in general, by enlarging the sphere of our knowledge concerning it. Hence, the more adequate ideas we attain of things that affect us, the less we shall be overcome by the passion they excite. But most of all it should be our endeavour to refer all things to the idea of God. The more we understand ourselves and our passions, the more we shall love God; for the more we understand anything, the more pleasure we have in contemplating it; and we shall associate the idea of God with this pleasurable contemplation, which is the essence of love. The love of God should be the chief employment of the mind. But God has no passions; therefore he who desires that God should love him, desires, in fact, that he should cease to be God. And the more we believe others to be united in the same love of God, the more we shall love him ourselves.

11. The great aim of the mind, and the greatest degree of virtue, is the knowledge of things in their essence. This knowledge is the perfection of human nature; it is accompanied with the greatest joy and contentment; it leads to a love of God, intellectual, not imaginative, eternal, because not springing from passions that perish with the body, being itself a portion of that infinite love with which God intellectually loves himself. In this love towards God our chief felicity consists, which is not the reward of virtue, but virtue itself; nor is anyone happy because he has overcome the passions, but it is by being happy, that is, by enjoying the fulness of divine love, that he has become capable of overcoming them.

12. These extraordinary effusions confirm what has been hinted in another place, that Spinosa, in the midst of his atheism, seemed often to hover over the regions of mystical theology. This last book of the Ethics speaks, as is evident, the very language of Quietism. In Spinosa himself it is not easy to understand the meaning; his sincerity ought not, I think, to be called in question; and this enthusiasm may be set down to the rapture of the imagination expatiating in the enchanting wilderness of its creation. But the possibility of combining such a tone of contemplative devotion with the systematic denial of a Supreme Being, in any personal sense, may put us on our guard against the tendency of mysticism, which may again, as it has frequently, degenerate into a similar chaos.

|Cumberland’s De Legibus Naturæ.|

13. The science of ethics, in the third quarter of the seventeenth century, seemed to be cultivated by three very divergent schools; by that of the theologians who went no farther than revelation, or at least than the positive law of God, for moral distinctions; by that of the Platonic philosophers, who sought them in eternal and intrinsic relations; and that of Hobbes and Spinosa, who reduced them all to selfish prudence. A fourth theory, which, in some of its modifications, has greatly prevailed in the last two centuries, may be referred to Richard Cumberland, afterwards bishop of Peterborough. His famous work, De Legibus Naturæ Disquisitio Philisophica, was published in 1672. It is contained in nine chapters, besides the preface or prolegomena.

|Analysis of prolegomena.|

14. Cumberland begins by mentioning Grotius, Selden, and one or two more who have investigated the laws of nature _à posteriori_, that is, by the testimony of authors and the consent of nations. But as some objections may be started against this mode of proof, which, though he does not hold them to be valid, are likely to have some effect, he prefers another line of demonstration, deducing the laws of nature, as effects, from their real causes in the constitution of nature itself. The Platonic theory of innate moral ideas, sufficient to establish natural law, he does not admit. “For myself, at least, I may say that I have not been so fortunate as to arrive at the knowledge of this law by so compendious a road.” He deems it therefore necessary to begin with what we learn by daily use and experience, preserving nothing but the physical laws of motion shown by mathematicians, and the derivation of all their operations from the will of a First Cause.

15. By diligent observation of all propositions which can be justly reckoned general moral laws of nature, he finds that they may be reduced to one, the pursuit of the common good of all rational agents, which tends to our own good as part of the whole; as its opposite tends not only to the misery of the whole system, but to our own.[883] This tendency, he takes care to tell us, though he uses the present tense (conducit), has respect to the most remote consequences, and is so understood by him. The means which serve to this end, the general good, may be treated as theorems in a geometrical method.[884] Cumberland, as we have seen in Spinosa, was captivated by the apparent security of this road to truth.

[883] Prolegomena, sect. 9.

[884] Sect. 12.

16. This scheme, he observes, may at first sight want the two requisites of a law, a legislator, and a sanction. But whatever is naturally assented to by our minds, must spring from the author of nature. God is proved to be the author of every proposition which is proved to be true by the constitution of nature, which has him for its author.[885] Nor is a sanction wanting in the rewards, that is the happiness which attends the observance of the law of nature, and in the opposite effects of its neglect; and in a lax sense, though not that of the jurists, reward as well as punishment may be included in the word sanction.[886] But benevolence, that is love and desire of good towards all rational beings, includes piety towards God, the greatest of them all, as well as humanity.[887] Cumberland altogether abstains from arguments founded on revelation, and is perhaps the first writer on natural law who has done so, for they may even be found in Hobbes. And I think that he may be reckoned the founder of what is awkwardly and invidiously called the utilitarian school; for though similar expressions about the common good may sometimes be found in the ancients, it does not seem to have been the basis of any ethical system.

[885] Sect. 13.

[886] Sect. 14.

[887] Sect. 15.

17. This common good, not any minute particle of it, as the benefit of a single man, is the great end of the legislator and of him who obeys his will. And such human actions as by their natural tendency promote the common good may be called naturally good, more than those which tend only to the good of any one man, by how much the whole is greater than this small part. And whatever is directed in the shortest way to this end may be called right, as a right line is the shortest of all. And as the whole system of the universe, when all things are arranged so as to produce happiness, is beautiful, being aptly disposed to its end, which is the definition of beauty, so particular actions contributing to this general harmony may be called beautiful and becoming.[888]

[888] Sect. 16.

18. Cumberland acutely remarks, in answer to the objection to the practice of virtue from the evils which fall on good men, and the success of the wicked, that no good or evil is to be considered, in this point of view, which arises from mere necessity, or external causes and not from our virtue or vice itself. He then shows that a regard for piety and peace, for mutual intercourse, and civil and domestic polity, tends to the happiness of every one; and in reckoning the good consequences of virtuous behaviour we are not only to estimate the pleasure intimately connected with it, which the love of God and of good men produces, but the contingent benefits we obtain by civil society which we promote by such conduct.[889] And we see that in all nations there is some regard to good faith and the distribution of property, some respect to the obligation of oaths, some attachments to relations and friends. All men therefore acknowledge, and to a certain extent perform, those things which really tend to the common good. And though crime and violence sometimes prevail, yet these are like diseases in the body which it shakes off; or if, like them, they prove sometimes mortal to a single community, yet human society is immortal; and the conservative principles of common good have in the end far more efficacy than those which dissolve and destroy states.

[889] Sect. 20.

19. We may reckon the happiness consequent on virtue as a true sanction of natural law annexed to it by its author, and thus fulfilling the necessary conditions of its definition. And though some have laid less stress on these sanctions, and deemed virtue its own reward, and gratitude to God and man its best motive, yet the consent of nations and common experience show us that the observance of the first end, which is the common good, will not be maintained without remuneration or penal consequences.

20. By this single principle of common good, we simplify the method of natural law, and arrange its secondary precepts in such subordination as best conduces to the general end. Hence, moral rules give way in particular cases, when they come in collision with others of more extensive importance. For all ideas of right or virtue imply a relation to the system and nature of all rational beings. And the principles thus deduced as to moral conduct are generally applicable to political societies, which in their two leading institutions, the division of property and the coercive power of the magistrate, follow the steps of natural law, and adopt these rules of polity, because they perceive them to promote the common weal.

21. From all intermixture of scriptural authority Cumberland proposes to abstain, building only on reason and experience; since we believe the scriptures to proceed from God because they illustrate and promote the law of nature. He seems to have been the first christian writer who sought to establish systematically the principles of moral right independently of revelation. They are indeed taken for granted by many, especially those who adopted the Platonic language; or the schoolmen may have demonstrated them by arguments derived from reason, but seldom, if ever, without some collateral reference to theological authority. In this respect, therefore, Cumberland may be deemed to make an epoch in the history of ethical philosophy, though Puffendorf, whose work was published the same year, may have nearly equal claims to it. If we compare the Treatise on the Laws of Nature with the Ductor Dubitantium of Taylor, written a very few years before, we shall find ourselves in a new world of moral reasoning. The schoolmen and fathers, the canonists and casuists, have vanished like ghosts at the first daylight; the continual appeal is to experience, and never to authority; or if authority can be said to appear at all in the pages of Cumberland, it is that of the great apostles of experimental philosophy, Descartes or Huygens, or Harvey or Willis. His mind, liberal and comprehensive as well as acute, had been forcibly impressed with the discoveries of his own age, both in mathematical science and in what is now more strictly called physiology. From this armoury he chose his weapons, and employed them, in some instances, with great sagacity and depth of thought. From the brilliant success, also, of the modern analysis, as well as from the natural prejudice in favour of a geometrical method, which arises from the acknowledged superiority of that science in the determination of its proper truths, he was led to expect more from the use of similar processes in moral reasoning than we have found justified by experience. And this analogy had probably some effect on one of the chief errors of his ethical system, the reduction, at least in theory, of the morality of actions to definite calculation.

|His theory expanded afterwards.|

22. The prolegomena or preface to Cumberland’s treatise contains that statement of his system with which we have been hitherto concerned, and which the whole volume does but expand. His manner of reasoning is diffuse, abounding in repetitions, and often excursive; we cannot avoid perceiving that he labours long on propositions which no adversary would dispute, or on which the dispute could be little else than one of verbal definition. This however is almost the universal failing of preceding philosophers, and was only put an end to, if it can be said yet to have ceased, by the sharper logic of controversy, which a more general regard to metaphysical inquiries, and a juster sense of the value of words, brought into use.

23. The question between Cumberland and his adversaries, that is, the school of Hobbes, is stated to be, whether certain propositions of immutable truth, directing the voluntary actions of men in choosing good and avoiding evil, and imposing an obligation upon them, independently of civil laws, are necessarily suggested to the mind by the nature of things and by that of mankind. And the affirmative of this question he undertakes to prove from a consideration of the nature of both; from which many particular rules might be deduced, but above all that which comprehends all the rest, and is the basis of his theory--namely, that the greatest possible benevolence (not a mere languid desire but an energetic principle) of every rational agent towards all the rest constitutes the happiest condition of each and of all, so far as depends on their own power, and is necessarily required for their greatest happiness; whence, the common good is the supreme law. That God is the author of this law appears evident from his being the author of all nature and of all the physical laws according to which impressions are made on our minds.

24. It is easy to observe by daily experience that we have the power of doing good to others, and that no men are so happy or so secure as they who most exert this. And this may be proved synthetically and in that more rigorous method which he affects, though it now and then leads the reader away from the simplest argument, by considering our own faculties of speech and language, the capacities of the hand and countenance, the skill we possess in sciences and in useful arts; all of which conduce to the social life of mankind and to their mutual co-operation and benefit. Whatever preserves and perfects the nature of anything, that is to be called good, and the opposite evil; so that Hobbes has crudely asserted good to respect only the agent desiring it, and consequently to be variable. In this it will be seen that the dispute is chiefly verbal.

25. Two corollaries of great importance in the theory of ethics spring from a consideration of our physical powers. The first is, that inasmuch as they are limited by their nature, we should never seek to transgress their bounds, but distinguish, as the Stoics did things within our reach, τα εφ’ ἡμιν [ta eph' hêmin], from those beyond it, τα ουκ εφ’ ἡμιν [ta ouk eph' hêmin], thus relieving our minds from anxious passions, and turning them to the prudent use of the means assigned to us. The other is one which applies more closely to his general principles of morals; that as all we can do in respect of others, and all the enjoyment we or they can have of particular things, is limited to certain persons, as well as in space and time, we perceive the necessity of distribution, both as to things, from which spring the rights of property, and as to persons, by which our benevolence, though a general rule in itself, is practically directed towards individuals. For the conservation of an aggregate whole is the same as that of its divided parts, that is, of single persons, which requires a distributive exercise of the powers of each. Hence, property and dominion, or meum and tuum, in the most general sense, are consequences from the general law of nature. Without a support from that law, according to Cumberland, without a positive tendency to the good of all rational agents, we should have no right even to things necessary for our preservation; nor have we that right, if a greater evil would be incurred by our preservation than by our destruction. It may be added as a more universal reflection, that as all we see in nature is so framed as to persevere in its appointed state, and as the human body is endowed with the power of throwing off whatever is noxious and threatens the integrity of its condition, we may judge from this that the conservation of mankind in its best state must be the design of nature, and that their own voluntary actions conducing to that end must be such as the author of nature commands and approves.

26. Cumberland next endeavours, by an enlarged analysis of the mental and bodily structure of mankind, to evince their aptitude for the social virtues, that is, for the general benevolence which is the primary law of nature. We have the power of knowing these by our rational faculty, which is the judge of right and wrong, that is, of what is conformable to the great law; and by the other faculties of the mind, as well as by the use of language, we generalise and reduce to propositions the determinations of reason. We have also the power of comparison, and of perceiving analogies, by means of which we estimate degrees of good. And if we are careful to guard against deciding without clear and adequate apprehensions of things, our reason will not mislead us. The observance of something like this general law of nature by inferior animals, which rarely, as Cumberland supposes, attack those of the same species, and in certain instances live together, as if by a compact for mutual aid; the peculiar contrivances in the human body which seem designed for the maintenance of society; the possession of speech, the pathognomic countenance, the efficiency of the hand, a longevity beyond the lower animals, the duration of the sexual appetite throughout the year, with several other arguments derived from anatomy, are urged throughout this chapter against the unsocial theory of Hobbes.

27. Natural good is defined by Cumberland, with more latitude than has been used by Paley and by those of a later school, who confine it to happiness or pleasurable perception. Whatever conduces to the preservation of an intelligent being, or to the perfection of his powers, he accounts to be good, without regard to enjoyment. And for this he appeals to experience, since we desire existence, as well as the extension of our powers of action, for their own sakes. It is of great importance to acquire a clear notion of what is truly good, that is, of what serves most to the happiness and perfection of everyone; since all the secondary laws of nature, that is, the rules of particular virtues, derive their authority from this effect. These rules may be compared one with another as to the probability, as well as the value of their effects upon the general good; and he anticipates greater advantage from the employment of mathematical reasoning and even analytical forms in moral philosophy than the different nature of the subjects would justify, even if the fundamental principle of converting the theory of ethics into calculation could be allowed.[890]

[890] Ea quippe tota (disciplina morum) versatur in æstimandis rationibus virium humanarum ad commune bonum entium rationalium quicquam facientium, quæ quidem variant in omni casuum possibilium varietate. Cap. ii., sect. 9. The same is laid down in several other passages. By _rationibus_ we must understand _ratios_; which brings out the calculating theory in the strongest light.

28. A law of nature, meaning one subordinate to the great principle of benevolence, is defined by Cumberland to be a proposition manifested by the nature of things to the mind according to the will of the First Cause, and pointing out an action tending to the good of rational beings, from the performance of which an adequate reward, or from the neglect of which a punishment, will ensue by the nature of such rational beings. Every part of this definition he proves with exceeding prolixity in the longest chapter--namely the fifth, of his treatise; but we have already seen the foundations of his theory upon which it rests. It will be evident to the reader of this chapter that both Butler and Paley have been largely indebted to Cumberland.[891] Natural obligation he defines thus:--No other necessity determines the will to act than that of avoiding evil and of seeking good, so far as appears to be in our power.[892] Moral obligation is more limited, and is differently defined.[893] But the main point, as he justly observes, of the controversy, is the connection between the tendency of each man’s actions, taking them collectively through his life, to the good of the whole, and that to his own greatest happiness and perfection. This he undertakes to show, premising that it is twofold; consisting immediately in the pleasure attached to virtue, and ultimately in the rewards it obtains from God and from man. God, as a rational being, cannot be supposed to act without an end, or to have a greater end than the general good; that is, the happiness and perfection of his creatures.[894] And his will may not only be shown _à priori_, by the consideration of his essence and attributes, but by the effects of virtue and vice in the order of nature, which he has established. The rewards and punishments which follow at the hands of men are equally obvious; and whether we regard men as God’s instruments, or as voluntary agents, demonstrate that virtue is the highest prudence. These arguments are urged rather tediously, and in such a manner as to encounter none of the difficulties which it is desirable to overcome.

[891] A great part of the second and third chapters of Butler’s Analogy will be found in Cumberland. See cap. v., sect. 22.

[892] Non alia necessitas voluntatem ad agendum determinat, quam malum in quantum tale esse nobis constat fugiendi bonumque quatenus nobis apparet prosequendi. Cap. v., sect. 7.

[893] Sect. 27.

[894] Sect. 19.

29. Two objections might be alledged against this kind of proof; that the rewards and punishments of moral actions are too uncertain to be accounted clear proofs of the will of God, and consequently of their natural obligation, and that by laying so much stress upon them we make private happiness the measure of good. These he endeavours to repel. The contingency of a future consequence has a determinate value, which, if it more than compensates, for good or evil, the evil or good of a present action, ought to be deemed a proof given by the author of nature that reward or punishment are annexed to the action, as much as if they were its necessary consequences.[895] This argument, perhaps sophistical, is an instance of the calculating method affected by Cumberland, and which we may presume, from the then recent application of analysis to probability, he was the first to adopt on such an occasion. Paley is sometimes fond of a similar process. But after these mathematical reasonings, he dwells, as before, on the beneficial effects of virtue, and concludes that many of them are so uniform as to leave no doubt as to the intention of the Creator. Against the charge of postponing the public good to that of the agent, he protests that it is wholly contrary to his principle, which permits no one to preserve his life, or what is necessary for it, at the expense of a greater good to the whole.[896] But his explication of the question ends in repeating that no single man’s greatest felicity can, by the nature of things, be inconsistent with that of all; and that every such hypothesis is to be rejected as an impossible condition of the problem. It seems doubtful whether Cumberland uses always the same language on the question whether private happiness is the final motive of action, which in this part of the chapter he wholly denies.

[895] Sect. 37.

[896] Sua cujusque felicitas est pars valde exigua finis illius, quem vir verè rationalis prosequitur, et ad totum finem, scilicet commune bonum cui a natura seu a Deo intertexitur, eam tantum habet rationem quam habet unus homo ad aggregatum ex omnibus rationalibus, quæ minor est quam habet unica arenula ad molem universi corporis. Sect. 23 and sect. 28.

30. From the establishment of this primary law of universal benevolence, Cumberland next deduces the chief secondary principles, which are commonly called the moral virtues. And among these he gives the first place to justice, which he seems to consider, by too lax an use of terms, or too imperfect an analogy, as comprehending the social duties of liberality, courtesy, and domestic affection. The right of property, which is the foundation of justice, he rests entirely on its necessity for the common good; whatever is required for that prime end of moral action being itself obligatory on moral agents, they are bound to establish and to maintain separate rights. And all right so wholly depends on this instrumentality to good, that the rightful sovereignty of God over his creatures is not founded on that relation he bears to them, much less on his mere power, but on his wisdom and goodness, through which his omnipotence works only for their happiness. But this happiness can only be attained by means of an absolute right over them in their Maker, which is therefore to be reckoned a natural law.

31. The good of all rational beings is a complex whole, being nothing but the aggregate of good enjoyed by each. We can only act in our proper spheres, labouring to do good. But this labour will be fruitless, or rather mischievous, if we do not keep in mind the higher gradations which terminate in universal benevolence. No man must seek his own advantage otherwise than that of his family permits; or provide for his family to the detriment of his country; or promote the good of his country at the expense of mankind; or serve mankind, if it were possible, without regard to the majesty of God.[897] It is, indeed, sufficient that the mind should acknowledge and recollect this principle of conduct, without having it present on every single occasion. But where moral difficulties arise, Cumberland contends that the general good is the only measure by which we are to determine the lawfulness of actions, or the preference due to one above another.

32. In conclusion, he passes to political authority, deriving it from the same principle, and comments with severity and success, though in the verbose style usual to him, on the system of Hobbes. It is, however, worthy of remark, that he not only peremptorily declares the irresponsibility of the supreme magistrate in all cases, but seems to give him a more arbitrary latitude in the choice of measures, so long as he does not violate the chief negative precepts of the decalogue, than is consistent with his own fundamental rule of always seeking the greatest good. He endeavours to throw upon Hobbes, as was not uncommon with the latter’s theological opponents, the imputation of encouraging rebellion while he seemed to support absolute power; and observes with full as much truth that if kings are bound by no natural law, the reason for their institution--namely, the security of mankind, assigned by the author of the Leviathan, falls to the ground.

[897] Cap. viii., sect. 14, 15.

|Remarks on Cumberland’s theory.|

33. I have gone rather at length into a kind of analysis of this treatise, because it is now very little read, and yet was of great importance in the annals of ethical philosophy. It was, if not a textbook in either of our universities, concerning which I am not confident, the basis of the system therein taught, and of the books which have had most influence in this country. Hutcheson, Law, Paley, Priestley, Bentham, belong, no doubt some of them unconsciously, to the school founded by Cumberland. Hutcheson adopted the principle of general benevolence as the standard of virtue; but by limiting the definition of good to happiness alone, he simplified the scheme of Cumberland, who had included conservation and enlargement of capacity in its definition. He rejected also what encumbers the whole system of his predecessor, the including the Supreme Being among those rational agents whose good we are bound to promote. The schoolmen, as well as those whom they followed, deeming it necessary to predicate metaphysical infinity of all the divine attributes, reckoned unalterable beatitude in the number. Upon such a subject no wise man would like to dogmatise. The difficulties on both sides are very great, and perhaps among the most intricate to which the momentous problem concerning the cause of evil has given rise. Cumberland, whose mind does not seem to have been much framed to wrestle with mysteries, evades, in his lax verbosity, what must perplex his readers.

34. In establishing the will of a supreme lawgiver as essential to the law of nature, he is followed by the bishop of Carlisle and Paley, as well as by the majority of English moralists in the eighteenth century. But while Paley deems the recognition of a future state so essential, that he even includes in the definition of virtue that it is performed “for the sake of everlasting happiness,” Cumberland not only omits this erroneous and almost paradoxical condition, but very slightly alludes to another life, though he thinks it probable from the stings of conscience and on other grounds; resting the whole argument on the certain consequences of virtue and vice in the present, but guarding justly against the supposition that any difference of happiness in moral agents can affect the immediate question except such as is the mere result of their own behaviour. If anyone had urged, like Paley, that without taking a future state into consideration, the result of calculating our own advantage will either not always be in favour of virtue, or, in consequence of the violence of passion, will not always seem so, Cumberland would probably have denied the former alternative, and replied to the other, that we can only prove the truth of our theorems in moral philosophy, and cannot compel men to adopt them.

35. Sir James Mackintosh, whose notice of Cumberland is rather too superficial, and hardly recognises his influence on philosophy, observes that “the forms of scholastic argument serve more to encumber his style than to insure his exactness.”[898] There is not, however, much of scholastic form in the treatise on the Laws of Nature, and this is expressly disclaimed in the Preface. But he has, as we have intimated, a great deal too much of a mathematical line of argument which never illustrates his meaning, and has sometimes misled his judgment. We owe, probably to his fondness for this specious illusion, I mean the application of reasonings upon quantity to moral subjects, the dangerous sophism that a direct calculation of the highest good, and that not relatively to particulars, but to all rational beings, is the measure of virtuous actions, the test by which we are to try our own conduct and that of others. And the intervention of general rules, by which Paley endeavoured to dilute and render palatable this calculating scheme of utility, seems no more to have occurred to Cumberland than it was adopted by Bentham.

[898] Dissertation on Ethical Philosophy, p. 48.

36. Thus as Taylor’s Ductor Dubitantium is nearly the last of a declining school, Cumberland’s Law of Nature may be justly considered as the herald, especially in England, of a new ethical philosophy, of which the main characteristics were, first, that it stood complete in itself without the aid of revelation; secondly, that it appealed to no authority of earlier writers whatever, though it sometimes used them in illustration; thirdly, that it availed itself of observation and experience, alledging them generally, but abstaining from particular instances of either, and making, above all, no display of erudition; and fourthly; that it entered very little upon casuistry, leaving the application of principles to the reader.

|Puffendorf’s Law of Nature and Nations.|

37. In the same year, 1672, a work still more generally distinguished than that of Cumberland, was published at Lund, in Sweden, by Samuel Puffendorf, a Saxon by birth, who filled the chair of moral philosophy in that recently-founded university. This large treatise, On the Law of Nature and Nations, in eight books, was abridged by the author, but not without some variations, in one perhaps more useful, On the Duties of a Man and a Citizen. Both have been translated into French and English; both were long studied in the foreign universities, and even in our own. Puffendorf has been, perhaps, in moral philosophy, of greater authority than Grotius, with whom he is frequently named in conjunction; but this is not the case in international jurisprudence.

|Analysis of this work.|

38. Puffendorf, after a very diffuse and technical chapter on moral beings, or modes, proceeds to assert a demonstrative certainty in moral science, but seems not to maintain an inherent right and wrong in actions antecedent to all law, referring the rule of morality altogether to the divine appointment. He ends, however, by admitting that man’s constitution being what it is, God could not, without inconsistency, have given him any other law than that under which he lives.[899] We discern good from evil by the understanding, which judgment when exercised on our own actions is called conscience; but he strongly protests against any such jurisdiction of conscience, independent of reason and knowledge, as some have asserted. This notion “was first introduced by the schoolmen, and has been maintained in these latter ages by the crafty casuists for the better securing, of men’s minds and fortunes to their own fortune and advantage.”[900] Puffendorf was a good deal imbued with the Lutheran bigotry which did no justice to any religion but its own.

[899] C. 2.

[900] C. 3.

39. Law alone creates obligation; no one can be obliged except towards a superior. But to compel and to oblige being different things, it is required for this latter that we should have received some great good at the hands of a superior, or have voluntarily submitted to his will. This seems to involve an antecedent moral right, which Puffendorf’s general theory denies.[901] Barbeyrac, his able and watchful commentator, derives obligation from our natural dependence on the supreme authority of God, who can punish the disobedient and reward others. In order to make laws obligatory, it is necessary, according to Puffendorf, that we should know both the law and the lawgiver’s authority. Actions are good or evil, as they conform more or less to law. And, coming to consider the peculiar qualities of moral actions, he introduces the distinction of perfect and imperfect rights, objecting to that of Grotius and the Roman lawyers, expletive and distributive justice.[902] This first book of Puffendorf is very diffuse; and some chapters are wholly omitted in the abridgment.

[901] C. 6.

[902] C. 7.

40. The natural state of man, such as in theory we may suppose, is one in which he was never placed, “thrown into the world at a venture, and then left entirely to himself, with no larger endowments of body or mind than such as we now discover in men.” This, however, he seems to think physically possible to have been, which I should incline to question. Man, in a state of nature, is subject to no earthly superior; but we must not infer thence that he is incapable of law, and has a right to everything that is profitable to himself. But, after discussing the position of Hobbes that a state of nature is a state of war, he ends by admitting that the desire of peace is too weak and uncertain a security for its preservation among mankind.[903]

[903] L. ii. c. 2.

41. The law of nature he derives not from consent of nations, nor from personal utility, but from the condition of man. It is discoverable by reason; its obligation is from God. He denies that it is founded on the intrinsic honesty or turpitude of actions. It was free to God whether he would create an animal to whom the present law of nature should be applicable. But supposing all things human to remain constant, the law of nature, though owing its institution to the free will of God, remains unalterable. He therefore neither agrees wholly with those who deem this law as one arbitrary and mutable at God’s pleasure, or those who look upon it as an image of his essential holiness and justice. For he doubts whether the law of nature is altogether conformed to the divine attributes as to a type; since we cannot acquire a right with respect to God; so that his justice must be of a different kind from ours. Common consent, again, is an insufficient basis of natural law, few men having searched into the foundations of their assent, even if we could find a more general consent than is the case. And here he expatiates, in the style of Montaigne’s school, on the variety of moral opinions.[904] Puffendorf next attacks those who resolve right into self-interest. But, unfortunately, he only proves that men often mistake their interest. “It is a great mistake to fancy it will be profitable to you to take away, either by fraud or violence, what another man has acquired by his labour; since others have not only the power of resisting you, but of taking the same freedom with your goods and possessions.” This is evidently no answer to Hobbes or Spinosa.

[904] C. 3.

42. The nature of man, his wants, his powers of doing mischief to others, his means of mutual assistance, show that he cannot be supported in things necessary and convenient to him without society, so that others may promote his interests. Hence, sociableness is a primary law of nature, and all actions tending towards it are commanded, as the opposite are forbidden by that law. In this he agrees with Grotius; and, after he had become acquainted with Cumberland’s work, observes that the fundamental law of that writer, to live for the common good, and show benevolence towards all men, does not differ from his own. He partly explains, and partly answers, the theory of Hobbes. From Grotius he dissents in denying that the law of nature would be binding without religion, but does not think the soul’s immortality essential to it.[905] The best division of natural law is into duties towards ourselves and towards others. But in the abridged work, the Duties of a Man and a Citizen, he adds those towards God.

[905] C. 8.

43. The former class of duties he illustrates with much prolixity and needless quotation,[906] and passes to the right of self-defence, which seems to be the debatable frontier between the two classes of obligation. In this chapter Puffendorf is free from the extreme scrupulousness of Grotius; yet he differs from him, as well as from Barbeyrac and Locke, in denying the right of attacking the aggressor, where a stranger has been injured, unless where we are bound to him by promise.[907]

[906] C. 4.

[907] C. 5.

44. All persons, as is evident, are bound to repair wilful injury, and even that arising from their neglect; but not where they have not been in fault.[908] Yet the civil action _ob pauperiem_, for casual damage by a beast or slave, which Grotius held to be merely of positive law, and which our own (in the only applicable case) does not recognise, Puffendorf thinks grounded on natural right. He considers several questions of reparation, chiefly such as we find in Grotius. From these, after some intermediate disquisitions on moral duties, he comes to the more extensive province of casuistry, the obligation of promises.[909] These, for the most part, give perfect rights which may be enforced, though this is not universal; hence, promises may themselves be called imperfect or perfect. The former, or _nuda pacta_, seem to be obligatory rather by the rules of veracity, and for the sake of maintaining confidence among men, than in strict justice; yet he endeavours to refute the opinion of a jurist who held _nuda pacta_ to involve no obligation beyond a compensation for damage. Free consent and knowledge of the whole subject are required for the validity of a promise; hence, drunkenness takes away its obligation.[910] Whether a minor is bound in conscience, though not in law, has been disputed; the Romish casuists all denying it unless he has received an advantage. La Placette, it seems, after the time of Puffendorf, though a very rigid moralist, confines the obligation to cases where the other party sustains any real damage by the non-performance. The world, in some instances, at least, would exact more than the strictest casuists. Promises were invalidated, though not always mutual contracts, by error; and fraud in the other party annuls a contract. There can be no obligation, Puffendorf maintains, without a corresponding right; hence, fear arising from the fault of the other party invalidates a promise. But those made to pirates or rebels, not being extorted by fear, are binding. Vows to God he deems not binding, unless accepted by him; but he thinks that we may presume their acceptance when they serve to define or specify an indeterminate duty.[911] Unlawful promises must not be performed by the party promising to commit an evil act, and as to performance of the other party’s promise, he differs from Grotius in thinking it not binding. Barbeyrac concurs with Puffendorf, but Paley holds the contrary; and the common sentiments of mankind seem to be on that side.[912]

[908] L. iii., c. 1.

[909] C. 5.

[910] C. 6.

[911] C. 6.

[912] C. 7.

45. The obligations of veracity Puffendorf, after much needless prolixity on the nature of signs and words, deduces from a tacit contract among mankind, that words, or signs of intention, shall be used in a definite sense which others may understand.[913] He is rather fond of these imaginary compacts. The laxer casuists are in nothing more distinguishable from the more rigid than in the exceptions they allow to the general rule of veracity. Many, like Augustin and most of the fathers, have laid it down that all falsehood is unlawful; even some of the jurists, when treating of morality, had done the same. But Puffendorf gives considerable latitude to deviations from truth, by mental reserve, by ambiguous words, by direct falsehood. Barbeyrac, in a long note, goes a good deal farther, and indeed beyond any safe limit.[914] An oath, according to those writers, adds no peculiar obligation; another remarkable discrepancy between their system and that of the theological casuists. Oaths may be released by the party in favour of whom they are made; but it is necessary to observe whether the dispensing authority is really the obligee.

[913] L. iv., c. 1.

[914] Barbeyrac admits that several writers of authority since Puffendorf had maintained the strict obligation of veracity for its own sake; Thomasius, Buddæus, Noodt, and above all, La Placette. His own notions are too much the other way, both according to the received standard of honourable and decorous character among men, and according to any sound theory of ethics. Lying, he says, condemned in Scripture, always means fraud or injury to others. His doctrine is, that we are to speak the truth, or to be silent, or to feign and dissemble, accordingly as our own lawful interest, or that of our neighbour, may demand it. This is surely as untenable one way as any paradox in Augustin or La Placette can be the other.

46. We now advance to a different part of moral philosophy, the rights of property. Puffendorf first inquires into the natural right of killing animals for food; but does not defend it very well, resting this right on the want of mutual obligation between man and brutes. The arguments from physiology and the manifest propensity in mankind to devour animals, are much stronger. He censures cruelty towards animals, but hardly on clear grounds; the disregard of moral emotion, which belongs to his philosophy, prevents his judging it rightly.[915] Property itself in things he grounds on an express or tacit contract of mankind, while all was yet in common, that each should possess a separate portion. This covenant he supposes to have been gradually extended, as men perceived the advantage of separate possession, lands having been cultivated in common after severalty had been established in houses and moveable goods; and he refutes those who maintain property to be coeval with mankind, and immediately founded on the law of nature.[916] Nothing can be the subject of property which is incapable of exclusive occupation; not therefore the ocean, though some narrow seas may be appropriated.[917] In the remainder of this fourth book he treats on a variety of subjects connected with property, which carry us over a wide field of natural and positive jurisprudence.

[915] C. 3.

[916] C. 4. Barbeyrac more wisely denies this assumed compact, and rests the right of property on individual occupancy.

[917] C. 5.

47. The fifth book of Puffendorf relates to price, and to all contracts onerous or lucrative, according to the distinction of the jurists, with the rules of their interpretation. It is a running criticism on the Roman Law, comparing it with right reason and justice. Price he divides into proper and eminent; the first being what we call real value, or capacity of procuring things desirable by means of exchange; the second the money value. What is said on this subject would now seem common-place and prolix; but it is rather interesting to observe the beginnings of political economy. Money, he thinks, was introduced by an agreement of civilized nations, as a measure of value. Puffendorf, of more enlarged views than Grotius, vindicates usury which the other had given up; and mentions the evasions usually practised such as the grant of an annuity for a limited term.

48. In the sixth book we have disquisitions on matrimony and the rights incident to it, on paternal and on herile power. Among other questions he raises one whether the husband has any natural dominion over the wife. This he thinks hard to prove, except as his sex gives him an advantage; but fitness to govern does not create a right. He has recourse therefore to his usual solution, her tacit or express promise of obedience. Polygamy he deems contrary to the law of nature, but not incest except in the direct line. This is consonant to what had been the general determination of philosophers.[918] The right of parents he derives from the general duty of sociableness, which makes preservation of children necessary, and on the affection implanted in them by nature; also on a presumed consent of the children in return for their maintenance.[919] In a state of nature this command belongs to the mother, unless she has waived it by a matrimonial contract. In childhood, the fruits of the child’s labour belong to the father, though the former seems to be capable of receiving gifts. Fathers, as heads of families, have a kind of sovereignty, distinct from the paternal, to which adult children residing with them are submitted. But after their emancipation by leaving their father’s house, which does not absolutely require his consent, they are bound only to duty and reverence. The power of a master over his servant is not by nature, nor by the law of war, but originally by a contract founded on necessity. War increased the number of those in servitude. A slave, whatever Hobbes may say, is capable of being injured by his master; but the laws of some nations give more power to the latter than is warranted by those of nature. Servitude implies only an obligation to perpetual labour for a recompence (namely, at least maintenance); the evil necessary to this condition has been much exaggerated by opinion.[920]

[918] L. vi., c. 1.

[919] C. 2.

[920] C. 3.

|Puffendorf and Paley compared.|

49. Puffendorf and Cumberland are the two great promoters, if not founders of that school in ethics, which abandoning the higher ground of both philosophers and theologians, that of an intrinsic fitness and propriety in actions, resolved them all into their conduciveness towards good. Their _utile_ indeed is very different from what Cicero has so named, which is merely personal, but it is different also from his _honestum_. The sociableness of Puffendorf is perhaps much the same with the general good of Cumberland, but is somewhat less comprehensive and less clear. Paley, who had not read a great deal, had certainly read Puffendorf; he has borrowed from him several minor illustrations, such as the equivocal promise of Timur (called by Paley Temures) to the garrison of Sebastia, and the rules for division of profits in partnership. Their minds were in some respects alike; both phlegmatic, honest, and sincere, without warmth or fancy; yet there seems a more thorough good-nature and kindliness of heart in our countryman. Though an ennobled German, Puffendorf had as little respect for the law of honour as Paley himself. They do not indeed resemble each other in their modes of writing; one was very laborious, the other very indolent; one sometimes misses his mark by circuity, the other by precipitance. The quotations in Puffendorf are often as thickly strewed as in Grotius, though he takes less from the poets; but he seems not to build upon their authority, which gives them still more the air of superfluity. His theory indeed, which assigns no weight to anything but a close geometrical deduction from axioms, is incompatible with much deference to authority; and he sets aside the customs of mankind as unstable and arbitrary. He has not taken much from Hobbes, whose principles are far from his; but a great deal from Grotius. The leading difference between the treatises of these celebrated men is that, while the former contemplated the law that ought to be observed among independent communities as his primary object, to render which more evident he lays down the fundamental principles of private right or the law of nature, the latter, on the other hand, not only begins with natural law, but makes it the great theme of his inquiries.

|Rochefoucault.|

50. Few books have been more highly extolled or more severely blamed than the Thoughts or Maxims of the Duke of Rochefoucault. They have, indeed, the greatest advantages for popularity; the production of a man less distinguished by his high rank than by his active participation in the factions of his country at a time when they reached the limits of civil war, and by his brilliancy among the accomplished courtiers of Louis XIV.; concise and energetic in expression; reduced to those short aphorisms, which leave much to the reader’s acuteness, and yet save his labour; not often obscure and never wearisome; an evident generalisation of long experience, without pedantry, without method, without deductive reasonings, yet wearing an appearance at least of profundity, they delight the intelligent though indolent man of the world, and must be read with some admiration by the philosopher. Among the books in ancient and modern times which record the conclusions of observing men on the moral qualities of their fellows, a high place should be reserved for the Maxims of Rochefoucault.

51. The censure that has so heavily fallen upon this writer is founded on his proneness to assign a low and selfish motive to human actions, and even to those which are most usually denominated virtuous. It is impossible to dispute the partial truth of this charge. Yet it may be pleaded, that many of his maxims are not universal even in their enunciation; and that, in others, where, for the sake of a more effective expression, the position seems general, we ought to understand it with such limitations as our experience may suggest. The society with which the Duke of la Rochefoucault was conversant could not elevate his notions of disinterested probity in man, or of unblemished purity in woman. Those who call themselves the world, it is easy to perceive, set aside, in their remarks on human nature, all the species but themselves, and sometimes generalise their maxims, to an amusing degree, from the manners and sentiments which have grown up in the atmosphere of a court or an aristocratic society. Rochefoucault was of far too reflecting a mind to be confounded with such mere worldlings; yet he bears witness to the contracted observation and the precipitate inferences which an intercourse with a single class of society scarcely fails to generate. The malignity of Rochefoucault is always directed against the false virtues of mankind, but never touches the reality of moral truths, and leaves us less injured than the cold, heartless indifference to right which distils from the pages of Hobbes. Nor does he deal in those sweeping denials of goodness to human nature which are so frequently hazarded under the mask of religion. His maxims are not exempt from defects of a different kind; they are sometimes refined to a degree of obscurity, and sometimes, under an epigrammatic turn, convey little more than a trivial meaning. Perhaps, however, it would be just to say that one third of the number deserve to be remembered, as at least partially true and useful; and this is a large proportion, if we exclude all that are not in some measure original.

|La Bruyere.|

52. The Characters of La Bruyere, published in 1687, approach to the Maxims of La Rochefoucault by their refinement, their brevity, their general tendency to an unfavourable explanation of human conduct. This nevertheless is not so strongly marked, and the picture of selfishness wants the darkest touches of his contemporary’s colouring. La Bruyere had a model in antiquity, Theophrastus, whose short book of Characters he had himself translated, and prefixed to his own; a step not impolitic for his own glory, since the Greek writer, with no contemptible degree of merit, has been incomparably surpassed by his imitator. Many changes in the condition of society, the greater diversity of ranks and occupations in modern Europe, the influence of women over the other sex, as well as their own varieties of character and manners, the effects of religion, learning, chivalry, royalty, have given a range to this very pleasing department of moral literature which no ancient could have compassed. Nor has Theophrastus taken much pains to search the springs of character; his delineations are bold and clear, but merely in outline; we see more of manners than of nature, and the former more in general classes than in portraiture. La Bruyere has often painted single persons; whether accurately or no, we cannot at this time determine, but with a felicity of description which at once renders the likeness probable, and suggests its application to those we ourselves have seen. His general reflections, like those of Rochefoucault, are brilliant with antithesis and epigrammatic conciseness; sometimes perhaps not quite just or quite perspicuous. But he pleases more, on the whole, from his greater variety, his greater liveliness, and his gentler spirit of raillery. Nor does he forget to mingle the praise of some with his satire. But he is rather a bold writer for his age and his position in the court, and what looks like flattery may well have been ironical. Few have been more imitated, as well as more admired, than La Bruyere, who fills up the list of those whom France has boasted as most conspicuous for their knowledge of human nature. The others are Montaigne, Charron, Pascal, and Rochefoucault; but we might withdraw the second name without injustice.

|Education. Milton’s Tractate.|

53. Moral philosophy comprehends in its literature whatever has been written on the best theory and precepts of moral education, disregarding what is confined to erudition, though this may frequently be partially treated in works of the former class. Education, notwithstanding its recognised importance, was miserably neglected in England, and quite as much, perhaps, in every part of Europe. Schools, kept by low-born illiberal pedants, teaching little, and that little ill, without regard to any judicious discipline or moral culture, on the one hand, or, on the other, a pretence of instruction at home under some ignorant and servile tutor, seem to have been the alternatives of our juvenile gentry. Milton raised his voice against these faulty methods in his short Tractate on Education. This abounds with bursts of his elevated spirit; and sketches out a model of public colleges, wherein the teaching should be more comprehensive, more liberal, more accommodated to what he deems the great aim of education than what was in use. “That,” he says, “I call a complete and generous education which fits a man to perform justly, skilfully, and magnanimously all the offices, both private and public, of peace and war.” But when Milton descends to specify the course of studies he would recommend, it appears singularly ill-chosen and impracticable, nearly confined to ancient writers, even in mathematics and other subjects where they could not be sufficient, and likely to leave the student very far from that aptitude for offices of war and peace which he had held forth as the reward of his diligence.

|Locke on Education. Its merits.|

54. Locke, many years afterwards, turned his thoughts to education with all the advantages that a strong understanding and entire disinterestedness could give him; but, as we should imagine, with some necessary deficiencies of experience, though we hardly perceive much of them in his writings. He looked on the methods usual in his age with severity, or, some would say, with prejudice; yet I know not by what proof we can refute his testimony. In his Treatise on Education, which may be reckoned an introduction to that on the Conduct of the Understanding, since the latter is but a scheme of that education an adult person should give himself, he has uttered, to say the least, more good sense on the subject than will be found in any preceding writer. Locke was not like the pedants of his own or other ages, who think that to pour their wordy book-learning into the memory is the true discipline of childhood. The culture of the intellectual and moral faculties in their most extensive sense, the health of the body, the accomplishments which common utility or social custom have rendered valuable, enter into his idea of the best model of education, conjointly at least with any knowledge that can be imparted by books. The ancients had written in the same spirit: in Xenophon, in Plato, in Aristotle, the noble conception which Milton has expressed, of forming the perfect man, is always predominant over mere literary instruction, if indeed the latter can be said to appear at all in their writings on this subject; but we had become the dupes of schoolmasters in our riper years, as we had been their slaves in our youth. Much has been written, and often well, since the days of Locke; but he is the chief source from which it has been ultimately derived; and though the Emile is more attractive in manner, it may be doubtful whether it is as rational and practicable as the Treatise on Education. If they have both the same defect, that their authors wanted sufficient observation of children, it is certain that the caution and sound judgment of Locke have rescued him better from error.

|And defects.|

55. There are, indeed, from this or from other causes, several passages in the Treatise on Education to which we cannot give an unhesitating assent. Locke appears to have somewhat exaggerated the efficacy of education. This is an error on the right side in a work that aims at persuasion in a practical matter; but we are now looking at theoretical truth alone. “I think I may say,” he begins, “that of all the men we meet with nine parts of ten are what they are, good or evil, useful or not, by their education. It is this which makes the great difference in mankind. The little or almost insensible impressions on our tender infancies have very important and lasting consequences; and there it is as in the fountains of some rivers, where a gentle application of the hand turns the flexible waters into channels that make them take quite contrary courses; and by this little direction given them at first in the source, they receive different tendencies, and arrive at last at very remote and distant places.” “I imagine,” he adds soon afterwards, “the minds of children as easily turned this or that way as water itself.”[921]

[921] Treatise on Education, § 152. “The difference,” he afterwards says, “to be found in the manners and abilities of men is owing more to their education than to anything else.” § 32.

56. This passage is an instance of Locke’s unfortunate fondness for analogical parallels, which, as far as I have observed, much more frequently obscure a philosophical theorem, than shed any light upon it. Nothing would be easier than to confirm the contrary proposition by such fanciful analogies from external nature. In itself, the position is hyperbolical to extravagance. It is no more disparagement to the uses of education that it will not produce the like effects upon every individual, than it is to those of agriculture (I purposely use this sort of idle analogy) that we do not reap the same quantity of corn from every soil. Those who are conversant with children on a large scale will, I believe, unanimously deny this levelling efficacy of tuition. The variety of characters even in children of the same family, where the domestic associations of infancy have run in the same trains, and where many physical congenialities may produce, and ordinarily do produce, a moral resemblance, is of sufficiently frequent occurrence to prove that in human beings there are intrinsic dissimilitudes, which no education can essentially overcome. Among mere theorists, however, this hypothesis seems to be popular. And as many of these extend their notion of the plasticity of human nature to the effects of government and legislation, which is a sort of continuance of the same controlling power, they are generally induced to disregard past experience of human affairs, because they flatter themselves that under a more scientific administration mankind will become something very different from what they have been.

57. In the age of Locke, if we may confide in what he tells us, the domestic education of children must have been of the worst kind. “If we look,” he says, “into the common management of children we shall have reason to wonder, in the great dissoluteness of manners which the world complains of, that there are any footsteps at all left of virtue. I desire to know what vice can be named which parents and those about children do not season them with, and drop into them the seeds of, as often as they are capable to receive them.” The mode of treatment seems to have been passionate and often barbarous severity alternating with foolish indulgence. Their spirits were often broken down and their ingenuousness destroyed by the former; their habits of self-will and sensuality confirmed by the latter. This was the course used by parents; but the pedagogues of course confined themselves to their favourite scheme of instruction and reformation by punishment. Dugald Stewart has animadverted on the austerity of Locke’s rules of education.[922] And this is certainly the case in some respects. He recommends that children should be taught to expect nothing because it will give them pleasure, but only what will be useful to them; a rule fit, in its rigid meaning, to destroy the pleasure of the present moment in the only period of life that the present moment can be really enjoyed. No father himself, Locke neither knew how ill a parent can spare the love of his child, nor how ill a child can want the constant and practical sense of a parent’s love. But if he was led too far by deprecating the mischievous indulgence he had sometimes witnessed, he made some amends by his censures on the prevalent discipline of stripes. Of this he speaks with the disapprobation natural to a mind already schooled in the habits of reason and virtue.[923] “I cannot think any correction useful to a child where the shame of suffering for having done amiss does not work more upon him than the pain.” Esteem and disgrace are the rewards and punishments to which he principally looks, and surely this is a noble foundation for moral discipline. He also recommends that children should be much with their parents, and allowed all reasonable liberty. I cannot think that Stewart’s phrase “hardness of character,” which he accounts for by the early intercourse of Locke with the Puritans, is justly applicable to anything that we know of him; and many more passages in this very treatise might be adduced to prove his kindliness of disposition, than will appear to any judicious person over austere. He found in fact everything wrong; a false system of reward and punishment, a false view of the objects of education, a false selection of studies, false methods of pursuing them. Where so much was to be corrected, it was perhaps natural to be too sanguine about the effects of the remedy.

[922] Preliminary Dissertation to Encyclop. Britann.

[923] If severity carried to the highest pitch does prevail, and works a cure upon the present unruly distemper, it is often bringing in the room of it a worse and more dangerous disease by breaking the mind; and then in the place of a disorderly young fellow, you have a low-spirited moped creature, who however with his unnatural sobriety he may please silly people, who commend tame inactive children, because they make no noise, nor give them any trouble; yet at least will probably prove as uncomfortable a thing to his friends, as he will be all his life an useless thing to himself and others. § 51.

58. Of the old dispute as to public and private education he says, that both sides have their inconveniencies, but incline to prefer the latter, influenced, as is evident, rather by disgust at the state of our schools than by any general principle.[924] For he insists much on the necessity of giving a boy a sufficient knowledge of what he is to expect in the world. “The longer he is kept hood-winked, the less he will see when he comes abroad into open daylight, and be the more exposed to be a prey to himself and others.” And this experience will, as is daily seen, not be supplied by a tutor’s lectures, any more than by books; nor can be given by any course save a public education. Locke urges the necessity of having a tutor well-bred, and with knowledge of the world, the ways, the humours, the follies, the cheats, the faults of the age he is fallen into, and particularly of the country he lives in, as of far more importance than his scholarship. “The only fence against the world is a thorough knowledge of it.... He that thinks not this of more moment to his son, and for which he more needs a governor, than the languages and learned sciences, forgets of how much more use it is to judge right of men and manage his affairs wisely with them, than to speak Greek and Latin, and argue in mood and figure, or to have his head filled with the abstruse speculations of natural philosophy and metaphysics; nay, than to be well versed in Greek and Roman writers, though that be much better for a gentleman, than to be a good Peripatetic or Cartesian; because these ancient authors observed and painted mankind well, and give the best light into that kind of knowledge. He that goes into the eastern parts of Asia will find able and acceptable men without any of these; but without virtue, knowledge of the world, and civility, an accomplished and valuable man can be found nowhere.”[925]

[924] § 70.

[925] § 94.

59. It is to be remembered, that the person whose education Locke undertakes to fashion is an English gentleman. Virtue, wisdom, breeding, and learning, are desirable for such an one in their order, but the last not so much as the rest.[926] It must be had, he says, but only as subservient to greater qualities. No objections have been more frequently raised against the scheme of Locke than on account of his depreciation of classical literature, and of the study of the learned languages. This is not wholly true: Latin he reckons absolutely necessary for a gentleman, though it is absurd that those should learn Latin who are designed for trade, and never look again at a Latin book.[927] If he lays not so much stress on Greek as a gentleman’s study, though he by no means would abandon it, it is because, in fact, most gentlemen, especially in his age, have done very well without it; and nothing can be deemed indispensable in the education of a child, the want of which does not leave a manifest deficiency in the man. “No man,” he observes, “can pass for a scholar who is ignorant of the Greek language. But I am not here considering of the education of a professed scholar, but of a gentleman.”[928]

[926] § 138.

[927] § 189.

[928] § 195.

60. The peculiar methods recommended by Locke in learning languages, especially the Latin, appear to be of very doubtful utility, though some of them do not want strenuous supporters in the present day. Such are the method of interlinear translation, the learning of mere words without grammar, and, above all, the practice of talking Latin with a tutor who speaks it well--a phœnix whom he has not shown us where to find.[929] In general, he seems to underrate the difficulty of acquiring what even he would call a competent learning, and what is of more importance, and no rare mistake in those who write on this subject, to confound the acquisition of a language with the knowledge of its literature. The best ancient writers both in Greek and Latin furnish so much of wise reflection, of noble sentiment, of all that is beautiful and salutary, that no one who has had the happiness to know and feel what they are, will desire to see their study excluded or stinted in its just extent, wherever the education of those who are to be the first and best of the country is carried forward. And though by far the greater portion of mankind must, by the very force of terms, remain in the ranks of intellectual mediocrity, it is an ominous sign of any times when no thought is taken for those who may rise beyond it.

[929] § 165.

61. In every other part of instruction, Locke has still an eye to what is useful for a gentleman. French he justly thinks should be taught before Latin; no geometry is required by him beyond Euclid, but he recommends geography, history and chronology, drawing, and what may be thought now as little necessary for a gentleman as Homer, the jurisprudence of Grotius and Puffendorf. He strongly urges the writing English well, though a thing commonly neglected, and after speaking with contempt of the artificial systems of logic and rhetoric, sends the pupil to Chillingworth for the best example of reasoning, and to Tully for the best idea of eloquence. “And let him read those things that are well writ in English to perfect his style in the purity of our language.”[930]

[930] § 188.

62. It would be to transcribe half this treatise, were we to mention all the judicious and minute observations on the management of children it contains. Whatever may have been Locke’s opportunities, he certainly availed himself of them to the utmost. It is as far as possible from a theoretical book; and in many respects the best of modern times, such as those of the Edgeworth name, might pass for developments of his principles. The patient attention to every circumstance, a peculiar characteristic of the genius of Locke, is in none of his works better displayed. His rules for the health of children, though sometimes trivial, since the subject has been more regarded, his excellent advice as to checking effeminacy and timorousness, his observations on their curiosity, presumption, idleness, on their plays and recreations, bespeak an intense, though calm, love of truth and goodness; a quality which few have possessed more fully, or known so well how to exert, as this admirable philosopher.

|Fenelon on female education.|

63. No one had condescended to spare any thoughts for female education, till Fenelon, in 1688, published his earliest work, Sur l’Education des Filles. This was the occasion of his appointment as preceptor to the grandchildren of Louis XIV.; for much of this treatise, and perhaps the most valuable part, is equally applicable to both sexes. It may be compared with that of Locke, written nearly at the same time, and bearing a great resemblance in its spirit. Both have the education of a polished and high-bred youth, rather than of scholars, before them; and Fenelon rarely loses sight of his peculiar object, or gives any rule which is not capable of being practised in female education. In many respects he coincides with our English philosopher, and observes with him that a child learns much before he speaks, so that the cultivation of his moral qualities can hardly begin too soon. Both complain of the severity of parents, and deprecate the mode of bringing up by punishment. Both advise the exhibition of virtue and religion in pleasing lights, and censure the austere dogmatism with which they were inculcated, before the mind was sufficiently developed to apprehend them. But the characteristic sweetness of Fenelon’s disposition is often shown in contrast with the somewhat stern inflexibility of Locke. His theory is uniformly indulgent; his method of education is a labour of love; a desire to render children happy for the time, as well as afterwards, runs through his book, and he may perhaps be considered the founder of that school which has endeavoured to dissipate the terrors and dry the tears of childhood. “I have seen,” he says, “many children who have learned to read in play; we have only to read entertaining stories to them out of a book, and insensibly teach them the letters, they will soon desire to go for themselves to the source of their amusement.” “Books should be given them well bound and gilt, with good engravings, clear types; for all that captivates the imagination facilitates study; the choice should be such as contain short and marvellous stories.” These details are now trivial, but in the days of Fenelon they may have been otherwise.

64. In several passages he displays not only a judicious spirit, but an observation that must have been long exercised. “Of all the qualities we perceive in children,” he remarks, “there is only one that can be trusted as likely to be durable, which is sound judgment; it always grows with their growth, if it is well cultivated; but the grace of childhood is effaced; its vivacity is extinguished; even its sensibility is often lost, because their own passions and the intercourse of others insensibly harden the hearts of young persons who enter into the world.” It is therefore a solid and just way of thinking which we should most value and most improve, and this not by any means less in girls than in the other sex, since their duties and the occupations they are called upon to fill do not less require it. Hence he not only deprecates an excessive taste for dress, but, with more originality, points out the danger of that extreme delicacy and refinement which incapacitate women for the ordinary affairs of life, and give them a contempt for a country life and rural economy.

65. It will be justly thought at present, that he discourages too much the acquisition of knowledge by women. “Keep their minds,” he says in one place, “as much as you can within the usual limits, and let them understand that the modesty of their sex ought to shrink from science with almost as much delicacy as from vice.” This seems, however, to be confined to science or philosophy in a strict sense; for he permits afterwards a larger compass of reading. Women should write a good hand, understand orthography and the four rules of arithmetic, which they will want in domestic affairs. To these he requires a close attention, and even recommends to women an acquaintance with some of the common forms and maxims of law. Greek, Roman, and French history, with the best travels, will be valuable, and keep them from seeking pernicious fictions. Books also of eloquence and poetry may be read with selection, taking care to avoid any that relate to love; music and painting may be taught with the same precaution. The Italian and Spanish languages are of no use but to enlarge their knowledge of dangerous books; Latin is better as the language of the church; but this he would recommend only for girls of good sense and discreet conduct, who will make no display of the acquisition.

SECT. II.

ON POLITICAL PHILOSOPHY.

_Puffendorf--Spinosa--Harrington’s Oceana--Locke on Government-- Political Economy._

|Puffendorf’s theory of politics.|

66. In the seventh book of Puffendorf’s great work, he comes to political philosophy, towards which he had been gradually tending for some time; primary societies, or those of families, leading the way to the consideration of civil government. Grotius derives the origin of this from the natural sociableness of mankind. But this, as Puffendorf remarks, may be satisfied by the primary societies. The real cause was experience of the injuries which one man can inflict on another.[931] And, after a prolix disquisition, he concludes that civil society must have been constituted, first, by a covenant of a number of men, each with each, to form a commonwealth, and to be bound by the majority, in which primary covenant they must be unanimous, that is, every dissentient would retain his natural liberty; next, by a resolution or decree of the majority, that certain rulers shall govern the rest; and, lastly, by a second covenant between these rulers and the rest, one promising to take care of the public weal, and the other to obey lawful commands.[932] This covenant, as he attempts to show, exists even in a democracy, though it is less evident than in other forms. Hobbes had admitted the first of these covenants, but denied the second; Barbeyrac, the able commentator on Puffendorf, has done exactly the reverse. A state once formed may be conceived to exist as one person, with a single will, represented by that of the sovereign, wherever the sovereignty may be placed. This sovereignty is founded on the covenants, and is not conferred, except indirectly like every other human power, by God. Puffendorf here combats the opposite opinion, which churchmen were as prone to hold, it seems, in Germany as in England.[933]

[931] L. vii., c. 1.

[932] C. 2.

[933] C. 3.

67. The legislative, punitive, and judiciary powers, those of making war and peace, of appointing magistrates, and levying taxes, are so closely connected that no one can be denied to the sovereign. As to his right in ecclesiastical matters, Puffendorf leaves it for others to determine.[934] He seems in this part of the work too favourable to unlimited monarchy, declaring himself against a mixed government. The sovereign power must be irresponsible, and cannot be bound by the law itself has given. He even denies that all government is intended for the good of the governed--a position strangely inconsistent with his theory of a covenant--but if it were, this end, the public good, may be more probably discerned by the prince than by the people.[935] Yet he admits that the exorbitancies of a prince should be restrained by certain fundamental laws, and holds, that having accepted such, and ratified them by oath, he is not at liberty to break them; arguing, with some apparent inconsistency, against those who maintain such limitations to be inconsistent with monarchy, and even recommending the institution of councils, without whose consent certain acts of the sovereign shall not be valid. This can only be reconciled with his former declaration against a mixed sovereignty, by the distinction familiar to our own constitutional lawyers, between the joint acts of A and B, and the acts of A with B’s consent. But this is a little too technical and unreal for philosophical politics.[936] Governments not reducible to one of the three simple forms he calls irregular; such as the Roman republic or German empire. But there may be systems of states, or aggregate communities, either subject to one king by different titles, or united by federation. He inclines to deny that the majority can bind the minority in the latter case, and seems to take it for granted that some of the confederates can quit the league at pleasure.[937]

[934] C. 4.

[935] C. 6.

[936] C. 6.

[937] C. 5.

68. Sovereignty over persons cannot be acquired, strictly speaking, by seizure or occupation, as in the case of lands, and requires, even after conquest, their consent to obey; which will be given, in order to secure themselves from the other rights of war. It is a problem whether, after an unjust conquest, the forced consent of the people can give a lawful title to sovereignty. Puffendorf distinguishes between a monarchy and a republic thus unjustly subdued. In the former case, so long as the lawful heirs exist or preserve their claim, the duty of restitution continues. But in the latter, as the people may live as happily under a monarchy as under a republic, he thinks that an usurper has only to treat them well, without scruple as to his title. If he oppresses them, no course of years will make his title lawful, or bind them in conscience to obey, length of possession being only length of injury. If a sovereign has been justly divested of his power, the community becomes immediately free; but if by unjust rebellion, his right continues till by silence he has appeared to abandon it.[938]

[938] C. 7.

69. Every one will agree that a lawful ruler must not be opposed within the limits of his authority. But let us put the case that he should command what is unlawful, or maltreat his subjects. Whatever Hobbes may say, a subject may be injured by his sovereign. But we should bear minor injuries patiently, and in the worst cases avoid personal resistance. Those are not to be listened to who assert that a king, degenerating into a tyrant, may be resisted and punished by his people. He admits only a right of self-defence, if he manifestly becomes a public enemy: in all this he seems to go quite as far as Grotius himself. The next question is as to the right of invaders and usurpers to obedience. This, it will be observed, he had already in some measure discussed; but Puffendorf is neither strict in method, nor free from repetitions. He labours much about the rights of the lawful prince insisting upon them, where the subjects have promised allegiance to the usurper. This, he thinks, must be deemed temporary, until the legitimate sovereign has recovered his dominions. But what may be done towards this end by such as have sworn fidelity to the actual ruler, he does not intimate. It is one of the nicest problems in political casuistry.[939]

[939] C. 8.

70. Civil laws are such as emanate from the supreme power, with respect to things left indifferent by the laws of God and nature. What chiefly belongs to them is the form and method of acquiring rights or obtaining redress for wrongs. If we give the law of nature all that belongs to it, and take away from the civilians what they have hitherto engrossed and promiscuously treated of, we shall bring the civil law to a much narrower compass; not to say that at present whenever the civil law is deficient we must have recourse to the law of nature, and that therefore in all commonwealths the natural laws supply the defects of the civil.[940] He argues against Hobbes’s tenet that the civil law cannot be contrary to the law of nature; and that what shall be deemed theft, murder, or adultery, depends on the former. The subject is bound generally not to obey the unjust commands of his sovereign; but in the case of war he thinks it, on the whole, safest, considering the usual difficulties of such questions, that the subject should serve, and throw the responsibility before God or the prince.[941] In this problem of casuistry, common usage is wholly against theory.

[940] L. viii., c. 1.

[941] L. viii., c. 1.

71. Punishment may be defined an evil inflicted by authority upon view of antecedent transgression.[942] Hence, exclusion, on political grounds, from public office, or separation of the sick for the sake of the healthy, is not punishment. It does not belong to distributive justice, nor is the magistrate bound to apportion it to the malignity of the offence, though this is usual. Superior authority is necessary to punishment; and he differs from Grotius by denying that we have a right to avenge the injuries of those who have no claim upon us. Punishment ought never to be inflicted without the prospect of some advantage from it; either the correction of the offender, or the prevention of his repeating the offence. But example he seems not to think a direct end of punishment, though it should be regarded in its infliction. It is not necessary that all offences which the law denounces should be actually punished, though some jurists have questioned the right of pardon. Punishments ought to be measured according to the object of the crime, the injury to the commonwealth, and the malice of the delinquent. Hence, offences against God should be deemed most criminal, and next, such as disturb the state; then whatever affect life, the peace or honour of families, private property or reputation, following the scale of the Decalogue. But though all crimes do not require equal severity, an exact proportion of penalties is not required. Most of this chapter exhibits the vacillating, indistinct, and almost self-contradictory resolutions of difficulties so frequent in Puffendorf. He concludes by establishing a great truth, that no man can be justly punished for the offence of another; nor even a community for the acts of their forefathers, notwithstanding their fictitious immortality.[943]

[942] C. 3.

[943] C. 3.

72. After some chapters on the law of nations, Puffendorf concludes with discussing the cessation of subjection. This may ordinarily be by voluntarily removing to another state with permission of the sovereign. And if no law or custom interferes, the subject has a right to do this at his discretion. The state has not a right to expel citizens without some offence. It loses all authority over a banished man. He concludes by considering the rare case of so great a diminution of the people, as to raise a doubt of their political identity.[944]

[944] C. 11. 12.

|Politics of Spinosa.|

73. The political portion of this large work, is not, as will appear, very fertile in original or sagacious reflection. A greater degree of both, though by no means accompanied with a sound theory, distinguishes the Political Treatise of Spinosa, one which must not be confounded with the Theologico-political Treatise, a very different work. In this he undertakes to show how a state under a regal or aristocratic government ought to be constituted so as to secure the tranquility and freedom of the citizens. Whether Spinosa borrowed his theory on the origin of government from Hobbes, is perhaps hard to determine: he seems acquainted with the treatise, De Cive; but the philosophical system of both was such as, in minds habituated like theirs to close reasoning, could not lead to any other result. Political theory, as Spinosa justly observes, is to be founded on our experience of human kind as it is, and on no visionary notions of an Utopia or golden age; and hence politicians of practical knowledge have written better on these subjects than philosophers. We must treat of men as liable to passions, prone more to revenge than to pity, eager to rule and to compel others to act like themselves, more pleased with having done harm to others than with procuring their own good. Hence, no state wherein the public affairs are entrusted to anyone’s good faith can be secure of their due administration; but means should be devised that neither reason nor passion should induce those who govern, to obstruct the public weal; it being indifferent by what motive men act if they can be brought to act for the common good.

74. Natural law is the same as natural power; it is that which the laws of nature, that is the order of the world, give to each individual. Nothing is forbidden by this law, except what no one desires, or what no one can perform. Thus, no one is bound to keep the faith he has plighted any longer than he will, and than he judges it useful to himself; for he has not lost the power of breaking it, and power is right in natural law. But he may easily perceive that the power of one man in a state of nature is limited by that of all the rest, and in effect is reduced to nothing; all men being naturally enemies to each other; while, on the other hand, by uniting their force, and establishing bounds by common consent to the natural powers of each, it becomes really more effective than while it was unlimited. This is the principle of civil government; and now the distinctions of just and unjust, right and wrong, begin to appear.

75. The right of the supreme magistrate is nothing but the collective rights of the citizens; that is, their powers. Neither he nor they in their natural state can do wrong; but after the institution of government, each citizen may do wrong by disobeying the magistrate; that, in fact, being the test of wrong. He has not to inquire whether the commands of the supreme power are just or unjust, pious or impious; that is, as to action, for the state has no jurisdiction over his judgment.

76. Two independent states are naturally enemies, and may make war on each other whenever they please. If they make peace or alliance, it is no longer binding than the cause, that is, hope or fear in the contracting parties, shall endure. All this is founded on the universal law of nature, the desire of preserving ourselves; which, whether men are conscious of it or no, animates all their actions. Spinosa in this, as in his other writings, is more fearless than Hobbes, and though he sometimes may throw a light veil over his abjuration of moral and religious principle, it is frequently placed in a more prominent view than his English precursor in the same system had deemed it secure to advance. Yet so slight is often the connection between theoretical tenets and human practice, that Spinosa bore the character of a virtuous and benevolent man. We do not know, indeed, how far he was placed in circumstances to put his fidelity to the test. In this treatise of politics, especially in the broad assertion that good faith is only to be preserved so long as it is advantageous, he leaves Machiavel and Hobbes at some distance, and may be reckoned the most phlegmatically impudent of the whole school.

77. The contract or fundamental laws, he proceeds, according to which the multitude transfers its right to a king or a senate, may unquestionably be broken, when it is advantageous to the whole to do so. But Spinosa denies to private citizens the right of judging concerning the public good in such a point, reserving, apparently, to the supreme magistrate an ultimate power of breaking the conditions upon which he was chosen. Notwithstanding this dangerous admission, he strongly protests against intrusting absolute power to any one man; and observes, in answer to the common argument of the stability of despotism, as in the instance of the Turkish monarchy, that if barbarism, slavery, and desolation are to be called peace, nothing can be more wretched than peace itself. Nor is this sole power of one man a thing so possible as we imagine; the kings who seem most despotic trusting the public safety and their own to counsellors and favourites, often the worst and weakest in the state.

|His theory of a monarchy.|

78. He next proceeds to his scheme of a well regulated monarchy, which is in some measure original and ingenious. The people are to be divided into families, by which he seems to mean something like the φρατριαι [phratriai] of Attica. From each of these, counsellors, fifty years of age, are to be chosen by the king, succeeding in a rotation quinquennial, or less, so as to form a numerous senate. This assembly is to be consulted upon all public affairs, and the king is to be guided by its unanimous opinion. In case, however, of disagreement, the different propositions being laid before the king, he may choose that of the minority, provided at least one hundred counsellors have recommended it. The less remarkable provisions of this ideal polity it would be waste of time to mention; except that he advises that all the citizens should be armed as a militia, and that the principal towns should be fortified, and, consequently, as it seems, in their power. A monarchy thus constituted would probably not degenerate into the despotic form. Spinosa appeals to the ancient government of Aragon, as a proof of the possibility of carrying his theory into execution.

79. From this imaginary monarchy he comes to an aristocratical republic. In this he seems to have taken Venice, the idol of theoretical politicians, as his primary model, but with such deviations as affect the whole scheme of government. He objects to the supremacy of an elective doge, justly observing that the precautions adopted in the election of that magistrate show the danger of the office itself, which was rather retained in the aristocratical polity as an ancient institution than from any persuasion of its usefulness. But the most remarkable discrepancy between the aristocracy of Spinosa and that of Venice is that his great council, which ought, as he strongly urges, not to consist of less than 5,000, the greatness of its number being the only safeguard against the close oligarchy of a few families, is not to be hereditary, but its vacancies to be filled up by self-election. In this election, indeed, he considers the essence of aristocracy to consist, being, as is implied in its meaning, a government by the best, who can only be pronounced such by the choice of many. It is singular that he never adverts to popular representation, of which he must have known examples. Democracy, on the contrary, he defines to be a government where political power falls to men by chance of birth, or by some means which has rendered them citizens, and who can claim it as their right without regard to the choice of others. And a democracy, according to Spinosa, may exist, if the law should limit this privilege of power to the seniors in age, or to the elder branches of families, or to those who pay a certain amount in taxation; although the numbers enjoying it should be a smaller portion of the community than in an aristocracy of the form he has recommended. His treatise breaks off near the beginning of the chapters intended to delineate the best model of democracy, which he declares to be one wherein all persons, in their own power, and not infamous by crime, should have a share in the public government. I do not know that it can be inferred from the writings of Spinosa, nor is his authority, perhaps, sufficient to render the question of any interest, to which of the three plans devised by him, as the best in their respective forms, he would have ascribed the preference.

|Amelot de la Houssaye.|

80. The condition of France under Louis XIV. was not very tempting to speculators on political theory. Whatever short remarks may be found in those excellent writers on other subjects who distinguish this period, we can select no one book that falls readily into this class. For Telemaque we must find another place. It is scarcely worth while to mention the political discourses on Tacitus, by Amelot de la Houssaye. These are a tedious and pedantic running commentary on Tacitus, affecting to deduce general principles, but much unlike the short and poignant observations of Machiavel and Bacon. A whole volume on the reign alone of Tiberius, and printed at Paris, is not likely to repay a reader’s trouble; at least, I have found nothing in it above the common level. I have no acquaintance with the other political writings of Amelot de la Houssaye, one of those who thought they could make great discoveries by analysing the constitution of Venice and other states.

|Harrington’s Oceana.|

81. England, thrown at the commencement of this period upon the resources of her own invention to replace an ancient monarchy by something new, and rich at that time in reflecting as well as learned men, with an unshackled press, and a growing disdain of authority as opposed to argument, was the natural soil of political theory. The earliest fruit was Sir James Harrington’s Oceana, published in 1656. This once famous book is a political allegory, partly suggested, perhaps, by the Dodona’s Grove of Howell, or by Barclay’s Argenis, and a few other fictions of the preceding age. His Oceana represents England, the history of which is shadowed out with fictitious names. But this is preliminary to the great object, the scheme of a new commonwealth, which, under the auspices of Olphaus Megaletor, the lord Archon, meaning, of course, Cromwell, not as he was, but as he ought to have been, the author feigns to have been established. The various laws and constitutions of this polity occupy the whole work.

82. The leading principle of Harrington is that power depends on property; denying the common saying, that knowledge or prudence is power. But this property must be in land, “because, as to property producing empire, it is required that it should have some certain root or foot-hold, which, except in land, it cannot have, being otherwise, as it were, upon the wing. Nevertheless, in such cities as subsist mostly by trade, and have little or no land, as Holland and Genoa, the balance of treasure may be equal to that of land.”[945] The law fixing the balance of lands is called by him agrarian, and without an agrarian law, he holds that no government, whether monarchical, aristocratic, or popular, has any long duration; this is rather paradoxical; but his distribution of lands varies according to the form of the commonwealth. In one best constituted the possession of lands is limited to £2,000 a year; which, of course, in his time, was a much greater estate than at present.

[945] P. 38, edit. 1771.

83. Harrington’s general scheme of a good government is one “established upon an equal agrarian arising into the superstructure, or three orders, the senate debating and proposing, the people resolving, and the magistracy executing by an equal rotation through the suffrage of the people given by the ballot.” His more particular form of polity, devised for his Oceana, it would be tedious to give in detail: the result is a moderate aristocracy; property, though under the control of his agrarian, which prevents its excess, having so great a share in the elections that it must predominate. But it is an aristocracy of what we should call the middle ranks, and might not be unfit for a small state. In general, it may be said of Harrington, that he is prolix, dull, pedantic, yet seldom profound; but sometimes redeems himself by just observations. Like most theoretical politicians of that age he had an excessive admiration for the republic of Venice.[946] His other political writings are in the same spirit as the Oceana, but still less interesting.

[946] “If I be worthy to give advice to a man that would study politics, let him understand Venice; he that understands Venice right, shall go nearest to judge, notwithstanding the difference that is in every policy, right of any government in the world.” Harrington’s Works, p. 292.

|Patriarcha of Filmer.|

84. The manly republicanism of Harrington, though sometimes visionary and, perhaps, impracticable, shines by comparison with a very opposite theory, which, having been countenanced in the early part of the century by our clergy, revived with additional favour after the Restoration. This was maintained in the Patriarcha of Sir Robert Filmer, written, as it appears, in the reign of Charles I., but not published till 1680, at a time when very high notions of royal prerogative were as well received by one faction as they were indignantly rejected by another. The object, as the author declares, was to prove that the first kings were fathers of families; that it is unnatural for the people to govern or to choose governors; that positive laws do not infringe the natural and fatherly power of kings. He refers the tenet of natural liberty and the popular origin of government to the schoolmen, allowing that all papists and the reformed divines have imbibed it, but denying that it is found in the fathers. He seems, indeed, to claim the credit of an original hypothesis; those who have vindicated the rights of kings in most points not having thought of this, but with one consent admitted the natural liberty and equality of mankind. It is certain, nevertheless, that the patriarchal theory of government as the basis of actual right was laid down as explicitly as by himself in what is called Bishop Overall’s Convocation Book, at the beginning of the reign of James I. But this book had not been published when Filmer wrote. His arguments are singularly insufficient; he quotes nothing but a few irrelevant texts from Genesis; he seems not to have known at all the strength, whatever it may be, of his own case, and it is hardly possible to find a more trifling and feeble work. It had, however, the advantage of opportunity to be received by a party with approbation.

|Sydney’s Discourses on Government.|

85. Algernon Sydney was the first who devoted his time to a refutation of this patriarchal theory, propounded as it was, not as a plausible hypothesis to explain the origin of civil communities, but as a paramount title, by virtue of which all actual sovereigns, who were not manifest usurpers, were to reign with an unmitigated despotism. Sydney’s Discourses on Government, not published till 1698, are a diffuse reply to Filmer. They contain, indeed, many chapters full of historical learning and judicious reflection; yet the constant anxiety to refute that which needs no refutation renders them a little tedious. Sydney does not condemn a limited monarchy like the English, but his partiality is for a form of republic which would be deemed too aristocratical for our popular theories.

|Locke on Government.|

86. Locke, immediately after the revolution, attacked the Patriarcha with more brevity, and laid down his own celebrated theory of government. The fundamental principle of Filmer is, that paternal authority is naturally absolute. Adam received it from God, exercised it over his own children, and transmitted it to the eldest born for ever. This assumption Locke combats rather too diffusely, according to our notions. Filmer had not only to show this absolute monarchy of a lineal ancestor, but his power of transmitting it in course of primogeniture. Locke denies that there is any natural right of this kind, maintaining the equality of children. The incapacity of Filmer renders his discomfiture not difficult. Locke, as will be seen, acknowledges a certain _de facto_ authority in fathers of families, and, possibly, he might have found, as, indeed, he seems to admit, considerable traces of a regard to primogeniture in the early ages of the world. It is the question of natural right with which he is here concerned; and, as no proof of this had been offered, he had nothing to answer.

87. In the second part of Locke’s Treatise on Civil Government, he proceeds to lay down what he holds to be the true principles upon which society is founded. A state of nature is a state of perfect freedom and equality; but within the bounds of the law of nature, which obliges every one, and renders a state of liberty no state of licence. And the execution of this law, in such a state, is put into everyone’s hands, so that he may punish transgressors against it, not merely by way of reparation for his own wrongs, but for those of others. “Every offence that can be committed in the state of nature may, in the state of nature, be punished equally, and as far forth, as it may in a commonwealth.” And not only independent communities, but all men, as he thinks, till they voluntarily enter into some society, are in a state of nature.[947]

[947] L. ii., c. 2.

88. Whoever declares by word or action a settled design against another’s life, puts himself in a state of war against him, and exposes his own life to be taken away, either by the other party, or by anyone who shall espouse his cause. And he who endeavours to obtain absolute power over another, may be construed to have a design on his life, or at least to take away his property. Where laws prevail, they must determine the punishment of those who injure others; but if the law is silenced, it is hard to think but that the appeal to Heaven returns, and the aggressor may be treated as one in a state of war.[948]

[948] C. 3.

89. Natural liberty is freedom from any superior power except the law of nature. Civil liberty is freedom from the dominion of any authority except that which a legislature, established by consent of the commonwealth, shall confirm. No man, according to Locke, can by his own consent enslave himself, or give power to another to take away his life. For slavery, in a strict sense, is but a continuance of the state of war between a conqueror and his captive.[949]

[949] C. 4.

90. The excellent chapter on property which follows would be sufficient, if all Locke’s other writings had perished, to leave him a high name in philosophy. Nothing can be more luminous than his deduction of the natural right of property from labour, not merely in gathering the fruits of the earth, or catching wild animals, but in the cultivation of land, for which occupancy is but the preliminary, and gives as it were an inchoate title. “As much land as a man tills, plants, improves, cultivates, and can use the product of, so much is his property. He by his labour does, as it were, inclose it from the common.” Whatever is beyond the scanty limits of individual or family labour, has been appropriated under the authority of civil society. But labour is the primary basis of natural right. Nor can it be thought unreasonable that labour should confer an exclusive right, when it is remembered how much of everything’s value depends upon labour alone. “Whatever bread is more worth than acorns, wine than water, and cloth or silk than leaves, skins, or moss, that is wholly owing to labour and industry.” The superiority in good sense and satisfactory elucidation of his principle, which Locke has manifested in this important chapter over Grotius and Puffendorf, will strike those who consult those writers, or look at the brief sketch of their theories in the foregoing pages. It is no less contrasted with the puerile rant of Rousseau against all territorial property. That property owes its origin to occupancy accompanied with labour, is now generally admitted; the care of cattle being of course to be considered as one species of labour, and requiring at least a temporary ownership of the soil.[950]

[950] C. 5.

91. Locke, after acutely remarking that the common arguments for the power of a father over his children would extend equally to the mother, so that it should be called parental power, reverts to the train of reasoning in the first book of this treatise against the regal authority of fathers. What they possess is not derived from generation, but from the care they necessarily take of the infant child, and during his minority; the power then terminates, though reverence, support, and even compliance are still due. Children are also held in subordination to their parents by the institutions of property, which commonly make them dependent both as to maintenance and succession. But Locke, which is worthy to be remarked, inclines to derive the origin of civil government from the patriarchal authority; one not strictly coercive, yet voluntarily conceded by habit and family consent. “Thus the natural fathers of families, by an insensible change, became the politic monarchs of them too; and as they chanced to live long, and leave worthy and able heirs for several successions or otherwise, so they laid the foundations of hereditary or elective kingdoms.”[951]

[951] C. 6.

92. The necessity that man should not live alone, produced the primary society of husband and wife, parent and children, to which that of master and servant was early added; whether of freemen engaging their service for hire, or of slaves taken in just war, who are by the right of nature subject to the absolute dominion of the captor. Such a family may sometimes resemble a little commonwealth by its numbers, but is essentially distinct from one, because its chief has no imperial power of life and death except over his slaves, nature having given him none over his children, though all men have a right to punish breaches of the law of nature in others according to the offence. But this natural power they quit and resign into the hands of the community, when civil society is instituted; and it is in this union of the several rights of its members that the legislative right of the commonwealth consists, whether this be done by general consent at the first formation of government, or by the adhesion which any individual may give to one already established. By either of these ways men pass from a state of nature to one of political society, the magistrate having now that power to redress injuries, which had previously been each man’s right. Hence, absolute monarchy, in Locke’s opinion, is no form of civil government; for there being no common authority to appeal to, the sovereign is still in a state of nature with regard to his subjects.[952]

93. A community is formed by the unanimous consent of any body of men; but when thus become one body, the determination of the majority must bind the rest, else it would not be one. Unanimity, after a community is once formed, can no longer be required; but this consent of men to form a civil society is that which alone did or could give beginning to any lawful government in the world. It is idle to object that we have no records of such an event; for few commonwealths preserve the tradition of their own infancy; and whatever we do know of the origin of particular states gives indications of this mode of union. Yet he again inclines to deduce the usual origin of civil societies from imitation of patriarchal authority, which having been recognised by each family in the arbitration of disputes and even punishment of offences, was transferred with more readiness to some one person, as the father and representative head of the infant community. He even admits that this authority might tacitly devolve upon the eldest son. Thus the first governments were monarchies, and those with no express limitations of power, till exposure of its abuse gave occasion to social laws, or to co-ordinate authority. In all this he follows Hooker, from the first book of whose Ecclesiastical Polity he quotes largely in his notes.[953]

[952] C. 7.

[953] C. 8.

94. A difficulty commonly raised against the theory of compact is, that all men being born under some government, they cannot be at liberty to erect a new one, or even to make choice whether they will obey or no. This objection Locke does not meet, like Hooker and the jurists, by supposing the agreement of a distant ancestor to oblige all his posterity. But explicitly acknowledging that nothing can bind freemen to obey any government save their own consent, he rests the evidence of a tacit consent, on the enjoyment of land, or even on mere residence within the dominions of the community; every man being at liberty to relinquish his possessions, or change his residence, and either incorporate himself with another commonwealth, or, if he can find an opportunity, set up for himself in some unoccupied part of the world. But nothing can make a man irrevocably a member of one society, except his own voluntary declaration; such perhaps as the oath of allegiance, which Locke does not mention, ought to be reckoned.[954]

[954] C. 8.

95. The majority having, in the first constitution of a state, the whole power, may retain it themselves, or delegate it to one or more persons.[955] And the supreme power is, in other words, the legislature sacred and unalterable in the hands where the community have once placed it, without which no law can exist, and in which all obedience terminates. Yet this legislative authority itself is not absolute or arbitrary over the lives and fortunes of its subjects. It is the joint power of individuals surrendered to the state; but no man has power over his own life or his neighbour’s property. The laws enacted by the legislature must be conformable to the will of God, or natural justice. Nor can it take any part of the subject’s property without his own consent, or that of the majority. “For if any one shall claim a power to lay and levy taxes on the people by his own authority, and without such consent of the people, he thereby invades the fundamental law of property, and subverts the end of government. For what property have I in that which another may by right take, when he pleases, to himself?” Lastly, the legislative power is inalienable; being but delegated from the people, it cannot be transferred to others.[956] This is the part of Locke’s treatise which has been open to most objection, and which in some measure seems to charge with usurpation all the established governments of Europe. It has been a theory fertile of great revolutions, and perhaps pregnant with more. In some part of this chapter also, though by no means in the most practical corollaries, the language of Hooker has led onward his more hardy disciple.

[955] C. 10.

[956] C. 11.

96. Though the legislative power is alone supreme in the constitution, it is yet subject to the people themselves, who may alter it whenever they find that it acts against the trust reposed in it; all power given in trust for a particular end being evidently forfeited when that end is manifestly disregarded or obstructed. But while the government subsists the legislature is alone sovereign, though it may be the usage to call a single executive magistrate sovereign, if he has also a share in legislation. Where this is not the case, the appellation is plainly improper. Locke has in this chapter a remarkable passage, one perhaps of the first declarations in favour of a change in the electoral system of England. “To what gross absurdities the following of custom, when reason has left it, may lead, we may be satisfied when we see the bare name of a town, of which there remains not so much as the ruins, where scarce so much housing as a sheep-cot, or more inhabitants than a shepherd is to be found, send as many representatives to the grand assembly of law-makers as a whole county, numerous in people and powerful in riches. This strangers stand amazed at, and every one must confess needs a remedy, though most think it hard to find one, because the constitution of the legislative being the original and supreme act of the society, antecedent to all positive laws in it, and depending wholly on the people, no inferior power can alter it.” But Locke is less timid about a remedy, and suggests that the executive magistrate might regulate the number of representatives, not according to old custom but reason, which is not setting up a new legislature, but restoring an old one. “Whatsoever, shall be done manifestly for the good of the people and the establishing the government on its true foundation, is, and always will be, just prerogative;”[957] a maxim of too dangerous latitude for a constitutional monarchy.

[957] C. 13.

97. Prerogative he defines to be “a power of acting according to discretion for the public good without the prescription of the law, and sometimes even against it.” This however is not by any means a good definition in the eyes of a lawyer; and the word, being merely technical, ought not to have been employed in so partial if not so incorrect a sense. Nor is it very precise to say, that in England the prerogative was always largest in the hands of our wisest and best princes, not only because the fact is otherwise, but because he confounds the legal prerogative with its actual exercise. This chapter is the most loosely reasoned of any in the treatise.[958]

[958] C. 14.

98. Conquest, in an unjust war, can give no right at all, unless robbers and pirates may acquire a right. Nor is anyone bound by promises which unjust force extorts from him. If we are not strong enough to resist, we have no remedy save patience; but our children may appeal to Heaven, and repeat their appeals till they recover their ancestral rights, which was to be governed by such a legislation as themselves approve. He that appeals to Heaven must be sure that he has right on his side, and right too that is worth the trouble and cost of his appeal, as he will answer at a tribunal that cannot be deceived. Even just conquest gives no further right than to reparation of injury; and the posterity of the vanquished, he seems to hold, can forfeit nothing by their parent’s offence, so that they have always a right to throw off the yoke. The title of prescription, which has commonly been admitted to silence the complaints, if not to heal the wounds, of the injured, finds no favour with Locke.[959] And hence, it seems that no state composed, as most have been, out of the spoils of conquest, can exercise a legitimate authority over the latest posterity of those it has incorporated. Wales, for instance, has an eternal right to shake off the yoke of England; for what Locke says of consent to laws by representatives, is of little weight when these must be out-numbered in the general legislature of both countries; and indeed the first question for the Cambro-Britons would be to determine whether they would form part of such a common legislation.

[959] C. 16.

99. Usurpation, which is a kind of domestic conquest, gives no more right to obedience than unjust war; it is necessary that the people should both be at liberty to consent, and have actually consented to allow and confirm a power which the constitution of their commonwealth does not recognise.[960] But tyranny may exist without usurpation, whenever the power reposed in anyone’s hands for the people’s benefit is abused to their impoverishment or slavery. Force may never be opposed but to unjust and unlawful force; in any other case, it is condemned before God and man. The king’s person is in some countries sacred by law; but this, as Locke thinks, does not extend to the case where, by putting himself in a state of war with his people, he dissolves the government.[961] A prince dissolves the government by ruling against law, by hindering the regular assembly of the legislature, by changing the form of election, or by rendering the people subject to a foreign power. He dissolves it also by neglecting or abandoning it, so that the laws cannot be put into execution. The government is also dissolved by breach of trust in either the legislature or the prince; by the former when it usurps an arbitrary power over the lives, liberties, and fortunes of the subject; by the latter, when he endeavours to corrupt the representatives or to influence the choice of the electors. If it be objected that no government will be able long to subsist, if the people may set up a new legislature whenever they take offence at the old one, he replies that mankind are too slow and averse to quit their old institutions for this danger to be apprehended. Much will be endured from rulers without mutiny or murmur. Nor is anything more likely to restrain governments than this doctrine of the right of resistance. It is as reasonable to tell men they should not defend themselves against robbers, because it may occasion disorder, as to use the same argument for passive obedience to illegal dominion. And he observes, after quoting some other writers, that Hooker alone might be enough to satisfy those who rely on him for their ecclesiastical polity.[962]

[960] C. 17.

[961] C. 18.

[962] C. 19.

|Observations on this Treatise.|

100. Such is, in substance, the celebrated treatise of Locke on civil government, which, with the favour of political circumstances, and the authority of his name, became the creed of a numerous party at home; while silently spreading the fibres from its root over Europe and America, it prepared the way for theories of political society, hardly bolder in their announcement, but expressed with more passionate ardour, from which the great revolutions of the last and present age have sprung. But as we do not launch our bark upon a stormy sea, we shall merely observe that neither the Revolution of 1688, nor the administration of William III., could have borne the test by which Locke has tried the legitimacy of government. There was certainly no appeal to the people in the former, nor would it have been convenient for the latter to have had the maxim established, that an attempt to corrupt the legislature entails a forfeiture of the entrusted power. Whether the opinion of Locke, that mankind are slow to political change, be conformable to an enlarged experience, must be judged by everyone according to his reading and observation; it is, at least, very different from that which Hooker, to whom he defers so greatly in most of his doctrine, has uttered in the very first sentence of his Ecclesiastical Polity. For my own part, I must confess, that in these latter chapters of Locke on Government I see, what sometimes appears in his other writings, that the influence of temporary circumstances on a mind a little too susceptible of passion and resentment, had prevented that calm and patient examination of all the bearings of this extensive subject which true philosophy requires.

101. But whatever may be our judgment of this work, it is equally true that it opened a new era of political opinion in Europe. The earlier writings on the side of popular sovereignty, whether those of Buchanan and Languet, of the Jesuits, or of the English republicans, had been either too closely dependent on temporary circumstances, or too much bound up with odious and unsuccessful factions, to sink very deep into the hearts of mankind. Their adversaries, with the countenance of every government on their side, kept possession of the field; and neither jurist, nor theologian, nor philosopher on the Continent, while they generally followed their predecessors in deriving the origin of civil society from compact, ventured to meet the delicate problem of resistance to tyranny, or of the right to reform a constitution, except in the most cautious and indefinite language. We have seen this already in Grotius and Puffendorf. But the success of the English Revolution; the necessity which the powers allied against France found of maintaining the title of William; the peculiar interest of Holland and Hanover, states at that time very strong in the literary world, in our new scheme of government, gave a weight and authority to principles which, without some such application, it might still have been thought seditious to propound. Locke too, long an exile in Holland, was intimate with Le Clerc, who exerted a considerable influence over the protestant part of Europe. Barbeyrac, some time afterwards, trod nearly in the same steps, and without going all the lengths of Locke, did not fail to take a very different tone from the two older writers, upon whom he has commented.

|Avis aux Refugiéz, perhaps by Bayle.

102. It was very natural that the French protestants, among whom traditions of a turn of thinking not the most favourable to kings may have been preserved, should, in the hour of severe persecution, mutiny in words and writings against the despotism that oppressed them. Such, it appears, had been the language of those exiles, as it is of all exiles, when an anonymous tract, entitled Avis aux Refugiéz, was published with the date of Amsterdam in 1690. This, under pretext of giving advice, in the event of their being permitted to return home, that they should get rid of their spirit of satire, and of their republican theories, is a bitter and able attack on those who had taken refuge in Holland. It asserts the principle of passive obedience, extolling also the king of France and his government, and censuring the English Revolution. Public rumour ascribed this to Bayle; it has usually passed for his, and is even inserted in the collection of his miscellaneous works. Some, however, have ascribed it to Pelisson, and others to Larroque; one already, and the other soon after, proselytes to the church of Rome. Basnage thought it written by the latter, and published by Bayle, to whom he ascribed the preface. This is, apparently, in a totally opposite strain, but not without strong suspicion of irony or ill faith. The style and manner throughout appear to suggest Bayle; and though the supposition is very discreditable to his memory, the weight of presumption seems much to incline that way.

|Political economists.|

103. The separation of political economy from the general science, which regards the well-being of communities, was not so strictly made by the earlier philosophers as in modern times. It does not follow that national wealth engaged none of their attention. Few, on the contrary, of those who have taken comprehensive views, could have failed to regard it. In Bodin, Botero, Bacon, Hobbes, Puffendorf, Locke, we have already seen proofs of this. These may be said to have discussed the subject, not systematically, nor always with thorough knowledge, but with acuteness and in a philosophical tone. Others there were of a more limited range, whose habits of life and experience led them to particular departments of economical inquiry, especially as to commerce, the precious metals, and the laws affecting them. The Italians led the way; Serra has been mentioned in our last volume, and a few more might find a place in this. De Witt’s Interest of Holland can hardly be reckoned among economical writings; and it is said by Morhof, that the Dutch were not fond of promulgating their commercial knowledge;[963] little, at least, was contributed from that country, even at a later period, towards the theory of becoming rich. But England now took a large share in this new literature. Free, inquisitive, thriving rapidly in commerce, so that her progress even in the nineteenth century has hardly been in a greater ratio than before, and after the middle of the seventeenth, if we may trust the statements of contemporaries, she produced some writers who, though few of them merit the name of philosophers, may not yet here be overlooked, on account of their influence, their reputation, or their position as links in the chain of science.

[963] Polyhistor, part iii., lib. iii., § 3.

|Mun on Foreign Trade.|

|Child on Trade.|

104. The first of these was Thomas Mun, an intelligent merchant in the earlier part of the century, whose posthumous treatise, England’s Treasure by Foreign Trade, was published in 1664, but seems to have been written soon after the accession of Charles I.[964] Mun is generally reckoned the founder of what has been called the mercantile system. His main position is that “the ordinary means to increase our wealth and treasure is by foreign trade, wherein we must ever observe this rule to sell more to strangers yearly than we consume of theirs in value.”[965] We must therefore sell as cheap as possible; it was by underselling the Venetians of late years, that we had exported a great deal of cloth to Turkey.[966] It is singular that Mun should not have perceived the difficulty of selling very cheap the productions of a country’s labour, whose gold and silver were in great abundance. He was, however, too good a merchant not to acknowledge the inefficacy and impolicy of restraining by law the exportation of coin, which is often a means of increasing our treasure in the long run; advising instead a due regard to the balance of trade, or general surplus of exported goods, by which we shall infallibly obtain a stock of gold and silver. These notions have long since been covered with ridicule; and it is plain that, in a merely economical view, they must always be delusive. Mun, however, looked to the accumulation of a portion of this imported treasure by the state; a resource in critical emergencies which we have now learned to despise, since others have been at hand, but which, in reality, had made a great difference in the events of war, and changed the balance of power between many commonwealths. Mun was followed, about 1670, by Sir Josiah Child, in a discourse on Trade, written on the same principles of the mercantile system, but more copious and varied. The chief aim of Child is to effect a reduction of the legal interest of money, from six to four per cent., drawing an erroneous inference from the increase of wealth which had followed similar enactments.

[964] Mr. Maculloch says (Introductory Discourse to Smith’s Wealth of Nations), it had most probably been written about 1635 or 1640. I remarked some things which serve to carry it up a little higher.

[965] P. 11 (edit. 1664).

[966] P. 18.

|Locke on the Coin.|

105. Among the many difficulties with which the government of William III. had to contend, one of the most embarrassing was the scarcity of the precious metals and depreciated condition of the coin. This opened the whole field of controversy in that province of political economy; and the bold spirit of inquiry, unshackled by prejudice in favour of ancient custom, which, in all respects, was characteristic of that age, began to work by reasonings on general theorems, instead of collecting insulated and inconclusive details. Locke stood forward on this, as on so many subjects, with his masculine sense and habitual closeness of thinking. His “Considerations of the Consequences of lowering Interest, and raising the Value of Money” were published in 1691. Two further treatises are in answer to the pamphlets of Lowndes. These economical writings of Locke are not in all points conformable to the modern principles of the science. He seems to incline rather too much towards the mercantile theory, and to lay too much stress on the possession of the precious metals. From his excellent sense, however, as well as from some expressions, I should conceive that he only considers them, as they doubtless are, a portion of the exchangeable wealth of the nation, and by their inconsumable nature, as well as by the constancy of the demand for them, one of the most important. “Riches do not consist,” he says, “in having more gold and silver, but in having more in proportion than the rest of the world or than our neighbours, whereby we are enabled to procure to ourselves a greater plenty of the conveniences of life.”

106. Locke had the sagacity to perceive the impossibility of regulating the interest of money by law. It was an empirical proposition at that time, as we have just seen in Sir Josiah Child, to render loans more easy to the borrower by reducing the legal rate to four per cent. The whole drift of his reasoning is against any limitation, though, from fear of appearing too paradoxical, he does not arrive at that inference. For the reasons he gives in favour of a legal limit of interest, namely, that courts of law may have some rule where nothing is stipulated in the contract, and that a few money-lenders in the metropolis may not have the monopoly of all loans in England, are, especially the first, so trifling, that he could not have relied upon them; and, indeed, he admits that, in other circumstances, there would be no danger from the second. But his prudence having restrained him from speaking out, a famous writer, almost a century afterwards, came forward to assert a paradox, which he loved the better for seeming such, and, finally, to convince the thinking part of mankind.

107. Laws fixing the value of silver Locke perceived to be nugatory, and is averse to prohibit its exportation. The value of money, he maintains, does not depend on the rate of interest, but on its plenty relatively to commodities. Hence, the rate of interest, he thinks, but, perhaps, erroneously, does not govern the price of land; arguing from the higher rate of land relatively to money, that is, the worse interest it gave, in the reigns of Elizabeth and James, than in his own time. But one of Locke’s positions, if generally received, would alone have sufficed to lower the value of land. “It is in vain,” he says, “in a country whose great fund is land, to hope to lay the public charges of the government on anything else; there, at last, it will terminate.” The legislature soon proceeded to act on this mistaken theory in the annual land tax; an impost of tremendous severity at that time, the gross unfairness, however, of which has been compensated in later times by the taxes on personal succession.

108. In such a monetary crisis as that of his time, Locke was naturally obliged to consider the usual resource of raising the denomination of the coin. This, he truly says, would be to rob all creditors of such a proportion of their debts. It is probable that his influence, which was very considerable, may have put a stop to the scheme. He contends in his Further Considerations, in answer to a tract by Lowndes, that clipped money should go only by weight. This seems to have been agreed by both parties; but Lowndes thought the loss should be defrayed by a tax; Locke that it should fall on the holders. Honourably for the government, the former opinion prevailed.

|Statistical tracts.|

109. The Italians were the first who laid anything like a foundation for statistics or political arithmetic; that which is to the political economist what general history is to the philosopher. But their numerical reckonings of population, houses, value of lands or stock, and the like, though very curious, and sometimes taken from public documents, were not always more than conjectural, nor are they so full and minute as the spirit of calculation demands. England here again took the lead, in Graunt’s Observations on the Bills of Mortality, 1661, in Petty’s Political Arithmetic (posthumous in 1691), and other treatises of the same ingenious and philosophical person, and, we may add, in the Observations of Gregory King on the Natural and Political State of England; for, though these were not published till near the end of the eighteenth century, the manuscripts had fallen into the hands of Dr. Charles Davenant, who has made extracts from them in his own valuable contributions to political arithmetic. King seems to have possessed a sagacity which has sometimes brought his conjectures nearer to the mark than, from the imperfection of his data, it was reasonable to expect. Yet he supposes that the population of England, which he estimated, perhaps rightly, at five millions and a half, would not reach the double of that number before A.D. 2300. Sir William Petty, with a mind capable of just and novel theories, was struck by the necessary consequences of an uniformly progressive population. Though the rate of movement seemed to him, as in truth it was, much slower than we have latterly found it, he clearly saw that its continuance would, in an ascertainable length of time, overload the world. “And then, according to the prediction of the Scriptures, there must be wars and great slaughter.” He conceived that, in the ordinary course of things, the population of a country would be doubled in two hundred years; but the whole conditions of the problem were far less understood than at present. Davenant’s Essay on Ways and Means, 1693, gained him a high reputation which he endeavoured to augment by many subsequent works, some falling within the seventeenth century. He was a man of more enlarged reading than his predecessors, with the exception of Petty, and of close attention to the statistical documents which were now more copiously published than before; but he seldom launches into any extensive theory, confining himself rather to the accumulation of facts and to the immediate inferences, generally for temporary purposes, which they supplied.

SECT. III.

ON JURISPRUDENCE.

|Works of Leibnitz on Roman Law.|

110. In 1667, a short book was published at Frankfort, by a young man of twenty-two years, entitled Methodi Novæ discendæ docendæque Jurisprudentiæ. The science which of all had been deemed to require the most protracted labour, the ripest judgment, the most experienced discrimination, was, as it were, invaded by a boy, but by one who had the genius of an Alexander, and for whom the glories of an Alexander were reserved. This is the first production of Leibnitz; and it is probably in many points of view the most remarkable work that has prematurely united erudition and solidity. We admire in it the vast range of learning (for though he could not have read all the books he names, there is evidence of his acquaintance with a great number, and at least with a well-filled chart of literature), the originality of some ideas, the commanding and comprehensive views he embraces, the philosophical spirit, the compressed style in which it is written, the entire absence of juvenility, of ostentatious paradox,[967] of imagination, ardour, and enthusiasm, which, though Leibnitz did not always want them, would have been wholly misplaced on such a subject. Faults have been censured in this early performance, and the author declared himself afterwards dissatisfied with it.[968]

[967] I use the epithet ostentatious, because some of his original theories are a little paradoxical; thus, he has a singular notion that the right of bequeathing property by testament is derived from the immortality of the soul; the living heirs being as it were the attorneys of those we suppose to be dead. Quia mortui revera adhuc vivunt, ideo manent domini rerum, quos vero hæredes reliquerunt, concipiendi sunt ut procuratores in rem suam. In our own discussions on the law of entail, I am not aware that this argument has ever been explicitly urged, though the advocates of perpetual control seem to have none better.

[968] This tract, and all the other works of Leibnitz on jurisprudence, will be found in the fourth volume of his works by Dutens. An analysis by Bon, professor of law at Turin, is prefixed to the Methodi Novæ, and he has pointed out a few errors. Leibnitz says in a letter, about 1676, that his book was effusus potius quam scriptus, in itinere, sine libris, &c., and that it contained some things he no longer would have said, though there were others of which he did not repent. Lerminier, Hist. du Droit, p. 150.

111. Leibnitz was a passionate admirer of the Roman jurisprudence; he held the great lawyers of antiquity second only to the best geometers for strong and subtle and profound reasoning; not even acknowledging, to any considerable degree, the contradictions (antinomiæ juris), which had perplexed their disciples in later times, and on which many volumes had been written. But the arrangement of Justinian he entirely disapproved; and in another work, Corporis Juris reconcinnandi Ratio, published in 1668, he pointed out the necessity and what he deemed the best method of a new distribution. This appears to be not quite like what he had previously sketched, and which was rather a philosophical than a very convenient method;[969] in this new arrangement, he proposes to retain the texts of the Corpus Juris Civilis, but in a form rather like that of the Pandects than of the Institutes; to the latter of which, followed as it has been among us by Hale and Blackstone, he was very averse.

[969] In this Methodi Novæ he divides law, in the didactic part, according to the several sources of rights--namely, 1. Nature, which gives us right over res nullius, things where there is no prior property. 2. Succession. 3. Possession. 4. Contract. 5. Injury, which gives right to reparation.

112. There was only one man in the world who could have left so noble a science as philosophical jurisprudence for pursuits of a still more exalted nature, and for which he was still more fitted; and that man was Leibnitz himself. He passed onward to reap the golden harvests of other fields. Yet the study of law has owed much to him; he did much to unite it with moral philosophy on the one hand, and with history on the other; a great master of both, he exacted perhaps a more comprehensive course of legal studies than the capacity of ordinary lawyers could grasp. In England also, its conduciveness to professional excellence might be hard to prove. It is however certain that, in Germany at least, philology, history, and philosophy have more or less since the time of Leibnitz marched together under the robe of law. “He did but pass over that kingdom,” says Lerminier, and he has reformed and enlarged it.”[970]

[970] Biogr. Univ. Lerminier, Hist. du Droit, p. 142.

|Civil Jurists--Godefroy--Domat.|

|Noodt on Usury.|

113. James Godefroy was thirty years engaged on an edition of the Theodosian Code, published, several years after his death, in 1665. It is by far the best edition of that body of laws, and retains a standard value in the historical department of jurisprudence. Domat, a French lawyer, and one of the Port-Royal connection, in his Loix Civiles dans leur Ordre Naturel, the first of five volumes of which appeared in 1689, carried into effect the project of Leibnitz, by re-arranging the laws of Justinian, which, especially the Pandects, are well known to be confusedly distributed, in a more regular method, prefixing a book of his own on the nature and spirit of law in general. This appears to be an useful digest or abridgment, something like those made by Viner and earlier writers of our own texts, but perhaps with more compression and choice; two editions of an English translation were published. Domat’s Public Law, which might, perhaps, in our language, have been called constitutional, since we generally confine the epithet public to the law of nations, forms a second part of the same work, and contains a more extensive system wherein theological morality, ecclesiastical ordinances, and the fundamental laws of the French monarchy are reduced into method. Domat is much extolled by his countryman; but in philosophical jurisprudence, he seems to display little force or originality. Gravina, who obtained a high name in this literature at the beginning of the next century, was known merely as a professor at the close of this; but a Dutch jurist, Gerard Noodt, may deserve mention for his treatise on usury, in 1698, wherein he both endeavours to prove its natural and religious lawfulness, and traces its history through the Roman law. Several other works of Noodt on subjects of historical jurisprudence seem to fall within this century, though I do not find their exact dates of publication.

|Law of Nations.--Puffendorf.|

114. Grotius was the acknowledged master of all who studied the theory of international right. It was, perhaps, the design of Puffendorf, as we may conjecture by the title of his great work on the Law of Nature and Nations, to range over the latter field with as assiduous diligence as the former. But from the length of his prolix labour on natural law and the rights of sovereigns, he has not more than one twentieth of the whole volume to spare for international questions; and this is in great measure copied or abridged from Grotius. In some instances he disagrees with his master. Puffendorf singularly denies that compacts made during war are binding by the law of nature, but for weak and unintelligible reasons.[971] Treaties of peace extorted by unjust force, he denies with more reason to be binding; though Grotius had held the contrary.[972] The inferior writers on the law of nations, or those who, like Wicquefort in his Ambassador, confined themselves to merely conventional usages, it is needless to mention.

[971] B. viii., chap. 7.

[972] Chap. 8.