MEX =o __ ~_. I ^INt. ^S •~~~r* *tJ N? ■ li. ^^^ % T*wv 1 =c: { % i-flfc* >- 1 e>^" ' r" ' - ^MM'NIVER^ ^WEUNIVERV^. fflPi/ "A'fFI fr i#- WCflfj. '/.maii jAMMJJ jaw Delineation of Univerfal Law: BEING AN ABSTRACT O F An E S S A T Towards DEDUCING the ELEMENTS O F UNIVERSAL LAW, FROM The Firft Principles of Knowledge, AND The Nature of Things; I N A Methodical and Connected SERIES. In Five Books. I. Of Law IN GENERAL. II. Of PRIVATE Law. III. Of CRIMINAL Law. IV. Ofthe Laws of MAGISTRACY. V. Ofthe LAW of NATIONS. By FETTI PLACE BELLERS, Efq ; The THIRD EDITION. LONDON: Printed by J. Hughs, For R. and J. Dodsl e y, in Pail-Mall. MDCCLIV. Stack Annex • s - f ADVERTISEMENT, */ HE Author had been engaged in the great Work, of <*■ which this is an Abftradt, twenty Tears. His Dejign was to conneB the feparate Syjlems of Lawyers and Philofophers, by deducing an intire Body of Laws from Principles of Truth and Knowledge ; without leaving PraSlice wholly out of Sight, nor yet carrying it down to the minuter Reafonings of the Bar, Bench, and Senate, &c. of particular States : But he did not live to finifh it. Several Tutors in the Univerfties, and Per- fons eminent in the Law, have dejired this Abftradl might be made public ; efleeming it an excellent Plan for LeBures, and an ufeful Guide both for Students and Proficients in this Science. The curious Reader may meet with further Satisfaclion in the. Author s Preface. 2015 [vii] THE PREFACE. HOUGH both Plato, among the Greeks, and Cicero, among the Ro- wans, not to mention others, had long before made fome very jull Attempts towards fhewing the Rife ot Laws from the Reafon and Nature of Things ; yet, that accurate Surveyor of the Advances and Extent of Human Knowledge, our own Lord Bacon, truly obferves*, that thofe who had, till his Time, treated of Laws, doing it either as Philofophers, had not carried their fine Contemplations near enough to Ufe and Practice ; or as Lawyers only, had not fufficiently freed thcm- felves from the Fetters of pofitive Inftitutions. And notwithstanding divers Works of great Weight and Learning have fince appeared, fuch as thofe of Grotius, Selden, Cumberland, Puffendorf, and Dcmat ; yet they have, each of them, their own particular Points fo much in view, that the fame Obfervation remains, in great meafure, true to this Day. To fupply this Defect, as far as the Author's Abilities will permit, his Defign is, according to his Title, to deduce the Elements of an intire Body of Laws from the higheft Principles of Truth and Knowledge: Without dropping the Inquiry fo fhort as to leave Practice wholly out of Sight ; nor yet carrying it down to thole minuter Reafonings and Circumftances which are neceffary for the Bar, the Bench, or the Senate, in the actual Adminiftration of Jultice and Government, in any par- ticular State. The Ufe of fuch an Undertaking, if it fhould be but tolerably well executed, is too obvious to need much Explanation. Such Readers as have no Inclination to meddle with the Intricacies of actual Law, but would, however, be glad ot a rational View of Human Society, in all its * dJvaticemeiit "/Learning, Book VIII. chap. 3. viii PREFACE. its Parts, will here find it in a much more extenfivc Manner, than is to be feen in any one Writer-, and in a more concife, as well as more connected one, than it can be found in, among many: As will, 'tis apprehended, be obvious even to Perfons fiightly verfed in thefe Subjects, if the Plan of it, here offered, be con- fidered with a little Attention. The beginning Student, before he plunges into the irregular Mazes of pofitive Inftitution, may be previoufiy, and at once, furnifhed, in due Order and Connection, with the Reafons on which an intire Body of Laws depend in general. A Clue, which is not a little neceffary to all thofe, who are obliged to travel thro' fuch wide and intricate Labyrinths, as the particular Laws of all long civilized Nations ever have, and always muft fwell to. Gentlemen, whofe Condition of Life and Fortunes call them early to a Share in the Legiflature of their Country, to whom a juft Syftem of fuch general Truths is more neceffary than the Subtleties of Practice, may be thereby prepared to judge, much more readily, concerning thofe various and oppofite Reafonings which are ufually offered in fuch Debates, as attend the carrying all particular Laws, from Theory, into Inftitution and Ac!:. And though the great Matters of Jurifprudence fhould, therein, meet with no new Truths, yet 'tis pofiible that the Manner in which the Author deduces the old ones from their firft Principles, and the Order in which he difpofes them when fo deduced, may not be unpleafing. For he flatters himfelf, they will make fome Allowance for an Undertaking, which is, in great meafure, the firft of the Kind ; eipecially if they confidet how difficult it is to make one and the fame Performance uleful to fuch, as the Writer may be capable of inftmcting ; and, at the fame time, not difagreeable to thofe, who are able to inftrucr. him. Besides which merely civil Purpofes, as the firft Book, on which the reft are built, fhews how evidently the Doctrines of Natural Religion, Private Morality^ and Public Law, are derived from the fame Sources, and tend directly to the fame great Purpofes ; that Part of it in particular, may not be ufelefs : efpecially at a Time when divers Sorts of Enthufiafm feem to make fome fuch Confiderations neceffary. Though 'tis pofiible fome of his Readers may look on fuch Difcourfes, as Part of the firft Book will confift of, as Things too remote for an Introduction to the Elements of Law. But, befides obferving that thofe will be very fhort, he who aims at offer- ing an intire Body of Doctrine to the Public, ought to confider himfelf as fpeaking to the moft inquifitive and extenfive Capacities, who will not be fully fatisfied with any thing lefs than the higheft Reafonings, which the Subject they are confidering feems to admit of. Or, PREFACE. i x Or, if Precedent be neceffary in the Cafe, he is therein juflificd by the Man- ner in which that great Lawyer, Cicero hirnfelf, enters on the Confideration of this Subject. Though, if the Reader fhould compare the two Difcourfes, 'tis hoped he will find that the accumulated Thought of fo many Ages has enabled the Author, to carry thofe Views fomething farther than that learned Rowan had an Opportunity of doing ; or than fome others, fince his Time, have done. Care is taken to render the Style plain and concife, without aiming at Orna- ment. Language, when applied to thefe graver Purpofes, feeming to be moft properly dreffed in that fimple Neatnefs which becomes a prudent Matron, when fhe is employed in domeftic Affairs at Home. Many Terms of Art are thrown into Circumlocutions •, that is, partly into their Definitions ; left the technical Meaning they have acquired, in the particular Laws to which they belong, fhould not be, precifely, that in which they mud be ufed, in fuch a general Difcourfe as the prefent. In which, however, 'twas hardly poffible to avoid fome little Novelty of E x preffion ; though that will nowhere be introduced without fufficient Explanation Of which Sort are, the Laws of Private Civil Dominion and Subjection ; for what the Civilians call Private Law, and which, according to Engliflj Phrafeology, we may call the Laws of Private Liberty, Power, and Properly ; The Laws of Public Subje£lion ; for what they call Criminal Law, and we Pleas of the Crown : The Laws of Fecial Magiflracy ; for a Part of Public Law, for which neither our own, nor the Roman Writers furnifh us with any diftinct Term •, for I need not ob- ferve, that Jus Feciale is, with them, what we call the Law of Nations itfelf ; and not that Part of their Civil Laws which vefted the Officers who made Leagues, &c. with the Office and Power of fo doing. o" And though thefe, and divers others, may at firft View feem a little unufual; yet it is hoped, that, on a fecond Reading, they will appear to arife naturally, and without any Affectation, from the Caft and Turn of the whole Difcourfe : and to be, therefore, the propereft Exprefiions in the feveral Places where they are ufed. Though, not only with refpect to Language, but to more material Points, one great Ufe of publifhing fo large a View of the Undertaking, as the prefent, was to have the Opportunity of giving the Work itfelf, before it goes to the Prefs, fuch Improvements as might be fuggefled by the Judicious, to which the Writer will lend a ready Attention : For, how bold foever the Attempt may feem, he is far from thinking hirnfelf too knowing to be informed, or his Performance too per- fect to be corrected. Its Margins will not be loaden with Quotations, which, in a Difcourfe that profeffedly appeals to the Nature of Things for its Authority, would be foreign to a the x PREFACE. the Purpofe ; except here and there, perhaps, to free a feemingly uncommon Senti- ment, from the Imputation of being altogether a Novelty. Nor, in the oppofite Extreme, will he run into formal Difputes ; except on fome very remarkable Occafions. His Bufinefs is not to pull down, but to build up, a Syftem of Truths, on thefe Subjects, in as concife a Manner as their Extent and his Abilities will permit ; without going out of his Way to combat celebrated Names, or received Opinions. For otherwife, what between Quotation and Refutation, each Part of this Dif- courfe might be readily iwelled beyond that Bulk which is defigned for the Whole ; and that with much greater Eafe to the Performer. Where he might alfo obferve, that it will be more for the Student's Advantage to find the Author's Reading and Judgment, if he has any,, in the Texture of that Whole, than in fuch fplendid Patches, which might cover, but would not cure, Flaws in the main Sublfance itfelf. But to make ample Amends for thofe Omiflions, if they are to be thought fuch in a Body of Elements only, References will be made, in every Part, to fuch Books, or Pares of Books, as are celebrated for handling thofe Subjects more at large ; fo as to make the Whole a methodical Index to fuch Writers thereon as have fallen under the Author's View : By which the Reader may, at his Pleafure, readily fall into a larger Thread of Reafoning, on its feveral Heads, than by the Nature and Defign of the Work itfelf, is, at firft, intended to be laid before him : The principal Purpofe of it being, to make him, in fome Degree, Matter of the Out-lines, before he meddles with thofe minuter Particulars of Law, and Govern- ment : as the mod certain Method of becoming afterwards a juft Matter of thofe alfo. For the reft, the following View of the Whole will be his beft Expofitor : with Refpect to which, in particular, he begs the Reader's Patience while he ob- ferves, that the little Introductions that ftand therein at the Head of each Book, and of the Parts into which thofe Books are divided, are not to be confidered as the Difcourfes which will appear in thofe Places of the Work itfelf, but as little Abstracts of them, occafionally drawn up, for the better connecting the Parts of this View. It is alfo to be oblerved, that the feveral Sections under thofe Parts have, in the Book itfelf, their particular Introductions, and are alfo farther fubdivided, ac- cording as they are more or lefs full of Matter ; which thofe who are already well acquainted with Laws will eafily fee, is very variou3. Those leffer Introductions and Subdivifions are t however, here omitted, becaufe inferting them would have rendered the View too unequal and bulky, for one of its principal Purpofes j which,, without incumbering them with too minute a De- tail PREFACE. xi tail of Particulars, was to give the Learned in thole Subjects an Opportunity of judging, whether the Author's Plan might be capable of bearing, with fumcient Order and Clearnefs, that extenfive Weight of Reafoning which he has attempted to lay on it ; to which if it fhould appear not unequal in general, there would be the lefs Reaibn to fufpect his Performance in particular Parts, wherein it mult be cm' to lucceed : Or though he fhould fail in fome of them, as 'tis not to be expected bul he may, yet fuch a Work might not want its Merit upon the Whole. Faultless Performances, even on the flighted Subjects, are not very common -, much lefs is it to be expected, that one Man's Life and Underftanding fhould reach Perfection on Subjects, whofe Extent and Difficulty have employed the ablelt Meads of fo many Ages, and fo many Nations. However, as lie has really applied a great Part of Twenty Years, to fuch Studies and Collections as might enable him to finifh it, with fome Benefit to his Readers, and fome Reputation to himfelf, he doubts not but they will excufe him, if he flatters himfelf, that neither of his Aims will be wholly fruftrated, in its Pub- lication. Works of this Kind often fall to the Share of the more fpeculative and indolent Tempers ; bccaule greater Capacity and Application always have called, and always will call, thofe of more Ability farther into the Scenes of active Life, than lea' e them Leifure to undertake what they had been, otherwife, the molt capable of per- forming; and of which, therefore, when performed, they mu ft be, in general, the ableit, if not the only, Judges. And as the World is, already, but too full of ufelefs Books, the Author thinks it an advantageous Circumftance, both for his Readers at large, and himfelf, that his Caufe muft be tried before that higheft Judicature : Where, as the Sentence is final, fo 'tis lure not to be pronounced without due Confide ration. a 2 CONTENTS. [ *a ] CONTENTS. BOOK I. Elements of Law, in general ; being a Difcourfe of the Origin, Ends, and Fitness of all Laws p. i In Thirteen PARTS. I. II. III. IV. V. VI. VII. OF Man, and the vifibk Syjiem of Things, abfolutely confidered Of the Being of one firfi and univerfal Caufe of all Things Of the Nature of the firfi univerfal Caufe, as difc over able by various Mediums Of the defigned Ends of Man's Exiftence, as thence difcoverable Of the Laws prefcribed to Man, for thofe Ends, in general Of the Phyfical Laws of the Human Nature ; and their Fitnefs Of the Moral Laws of the Human Nature, and their Fitnefs, in general VIII. Of the Laws of Sole Morality, as derived from the Nature of Man IX. Of the Laws of Social Morality, or Human Society, in general Fitnefs X. Of the Laws of Private Human Society, as derived from Man's Nature XI. Of tbtkLaws o/Publick, or Civil Society, as thence derived; and their Fitnefs XII. Of the Laws of National Society, as thence derived ; and their Fitnefs 12 XIII. Of the Future Exiftence of Man ; as one of the Laws of his Nature 13 7 8 and their 9 10 BOOK II. Elements of the Laws of Private Civil Dominion and Sub- jeclion, o?~ Private Law p. 15 In Thirteen PARTS. I. Of Private Civil Dominion and Subjeclion, and its Laws x in general II. Of the Dominion Men have over their own Perfons ; and its Laws III. Of the Dominion Men may acquire over other Perfons ; and its Laws J 9 20 20 IV. Of CONTENTS, xiii IV. Of the Dominion they may acquire over Things, which is Property, in ge- neral 2 : V. Of Property in Confumable Things, in particular ; and its Laws 23 VI. Of Original Property in Inconfumable Things, and its Laws, in general 23 VII. Of Partial Property in Inconfumable Things, as thence derived ; and its Laws 24 VIII. Of Limited Property, or Eftates therein, as thence derived ; and its Laws 25 IX. Of Conditional Property in fitch Things, as thence derived ; and its Laws 27 X. Of Property t Truft, to other Pcrfons Ufes, as thence derived ; and its Laws 28 XI. Of Joint Property in fitch Things, as thence, alfo, derived; and its Laves 29 XII. Of Property in Things of an Incorporeal Nature ; and its Laws 30 XIII. Of the Laws, and Rights peculiar to Perfons under fome private Incapacity 31 BOOK III. Eletnents of the Laws of Publick. Civil Subjection, or Criminal Laws p. 33 In Six PARTS. I. Of Publick Civil Subjetlion, and its Laws, in general 36 II. Of Laws that, to prevent Crimes, regulate Religion 37 III. Of Laws that, to prevent Crimes, regulate Education 38 IV. Of Laws that hold Men to the Publick Duties, common to all States of private Life 38 V. Of Laws that hold Men to the Publick Duties of particular Profeflions, in private Life 4° VI. Of Laws that hold Men, directly, to their Duties toward Magiftracy U ' 'f 42 B O O K IV. Elements of the Laws of Publick Civil Dominion, being the Laws of Magistracy itfelf p. 45 In Eight PARTS. I. Of Publick Civil Dominion, and its Laws, in general 49 II. Of the Laws of judicial Magiftracy, or Internal Judicature 50 III. Of the Laws of Fecial Magiftracy, or External Judicature 51 IV. Of the Laics of Military Magiftracy, or the Publick Force 53 V. Of the Laws of Fifcal Magiftracy, or the Publick Property 54 VI. Of the Laws of LegiQative Magiftracy, or the Means cf making Publick Rules 56 VII. Of the Laws of Subordinate Societies, as a compound Kind of Magiftracy §y VIII. Of the Laws of Supreme Magiftracy j in which all the reft muft be urn ted J 13 C .. XIV CONTENTS, BOOK V. Elements of the Laws of National Society CQurJe, or the Law of Nations and Jnter- p. 61 In Eleven PARTS. I. Of National Society, and its Laws, in general 66 II. Of the Laws of Society between Nations in a State of Neutrality 6y III. Of the Rules of Atlions preparatory to exprefs Peace between Nations 68 IV. Of the Laws of Private National Society, by exprefs Treaty 68 V. Of the Laws of Publick National Society, by exprefs Treaty 6% VI. Of the Laws of Judicature between Nations, without War yo VII. Of War between Nations, and its Laws, in general yi VIII. Of the Laws of the leaft folemn War, or Reprifals y i IX. Of the Laws of folemn War, in its tempered State yi X. Of the Laws of War, in its moft unlimited State yi XI. Of the Rules of thofe Comfatls that accompany, fufpend, or clofe, the State of War yi BOOK BOOK I. ELEMENTS O F LAW, in General; BEING A DISCOURSE OF THE ORIGIN, ENDS, and FITNESS of all Laws. [ « ] INTRODUCTION. S all Juft Laws are Rules of Action, prefcribed to intelligent Agents, by fit Perfons, under fit Penal- il^iPii tlcs > as ^ Means, for obtaining fome fit End; our Inquiry into their Reafons muft begin, from an Ex- amination of the Fitnefs of the Ends aimed at by them. For though the Legislator may be fit to prefcribe Rules of Action ; though the Penalty may be fit to produce a Compliance with the Rule ; and the Rule, when complied with, may be fit to produce the End ; yet if that End itfelf be not fit to be ob- tained, the Law fails in its principal Point. Whence it follows, that 'till the Ends at which Man mould aim, in general, be known, we cannot judge of the Fitnefs of any particular Law that may be prefcribed to him ; for, not- withftanding the feeming Fitnefs of any particular End, it may, 'till Man's general End be known, be inconfiftent therewith. Noft can that general End be difcovered without a thorough Confideration of the Human Nature, in all the Circumftances of its Exiftence ; as far as they are difcoverable to us by Reafon only. B For, i INTRODUCTION. For, as we are about to deduce the Fitnefs of Laws from the general Nature of Things, we are not to ufe other Me- diums of Argument, than thofe which rife from that general Nature : And, in order to make our intended Difcovery there- by, we will confider Man, the Caufes of his Exiftence, his dis- coverable Ends, and the Laws of his Nature, under the fol- lowing Heads, in the feveral fubfequent PARTS of this BOOK. I. Of Mankind, and the vifible Syftem of Things, of which they are a Part, ablblutely confidered. II. Of the Being of fome one Firft -and Univerfal Caufe of all that Syftem, as it follows from the Nature and Structure thereof. III. Of the Nature of that Firft Univerfal Caufe, as it follows from the Nature of the Things produced. [V. Of the defigned Ends of Man, as they follow from the Nature of that Caufe, &c. in general. V. Of the Laws prefcribed to Man, by that Caufe, for obtaining thofe Ends; and their Fitnefs in s:eneral. VI. Of the Phyfical Laws of the Human Exiftence, and Nature ; and their Fitnefs for thofe Ends. VII. Of the Moral Laws of the Human Nature ; and their Fitnefs in general* VIII. Of the Laws of Sole Morality ; and their Fitnefs. IX. Of the Laws of Social Morality, or Human Society ; and their Fit- nefs in general. X. Of the Laws of Private Society ; and their Fitnefs. XI. Of the Laws of Public, or Civil Society ; and their Fitnefs in general, XII. Of the Laws of National Society ; and their Fitnefs. XIII. Of the future Immortal Exiftence of Man, as it neceflarily follows from all the preceding Thread of Reafoning; and as its Moral Nature and Laws are thereby, in Part, difcoverable. PART Book L ELEMENTS of LAW in General. PART L Of Man and the Visible System of Things of which he a Part, abfolutely considered. is The preceding Titles, of the feveral Parts of this firft Book, having acquainted the Reader with its wide Extent ; he will not think it improper that, in this iirfl Part of it, we bring him to a Point of View, whence, as from an Eminence, he may take a diltant, general Survey of that vail Object, into whofe Caufes and Effects he is to enquire more minutely, in the following Parts : Which however will be drawn into the Compafs of very few Pages, under the following SECTIONS. C. Of Human Under/landing, not only as it is Part of our Subject, but efpecially, as it is the Inftrument with which the whole Inquiry muft be made. II. Of Human Knowledge, both Phyfical and Moral, as it is the Refult of that Under' ftanding, in general. III. Of Mankind, with the reft of the Inhabitants, and Furniture of this Globe of Earth. IV. Of this Globe of Earth, and the reft of the folar Syftem, of which it is a Part. V. Of the reft of the vifible Univerfe, of which that folar Syftem is a Part. PART II. Of the Being of fome One, Firft, and Universal Caufe of all Things. The preceding View having juftly and neceffarily put the Mind on an Inquiry into that Series of Caufes and Effects, on which this prodigious Syftem of Things is dependent, we come in this Part to trace, in a fhort manner, the great Out- lines of that Series, Step by Step, till they refult in a full Proof of the Being of fome one Univerfal Caufe. Where however the Reader is not to fuppofe, that in this Part, and the next immediately following, any thing fo abfurd is thought of, as fwelling this Intro- duction to Elements of Law, with a whole Syftem of Phylicks : But ftating the Cardinal Points of that Syftem in fuch a concife, and in fome degree, new Manner, as will conclude fully to our Purpofe ; referring the Reader to Places where thofe Particulars may be feen at large, which will be here treated in general Terms only, in the following o B 2 SECTIONS. 4 ELEMENTS of LAW in General. Book I. SECTIONS. I. Of the Generation, Birth, Growth, Life and Death of the various Inhabitants of this Earth, both vegetable and animal, as they depend on their feveral methanick Structures, in particular, and the apparent Qualities of what we call Body or Matter, in general. II. Of the Structure, Motion, &c. of our Globe of Earth, as it depends on the Nature of Matter internally, and its Place in the folar Syjlem externally. III. Of the Strutlure of that whole folar Syjlem, as it depends on certain univerfal Qua- lities internally, and on its Situation in, and being a Part of the vifible Univerfe externally. IV. Of the Structure and Nature of the vifible Univerfe, as it evidently infers both the being of infinitely more than its vifible Parts, and the Exijlence of fome one Uni- verfal and Infinite Caufe. PART III. Of the Nature of the Firjl and Univerfal Cause. The Being of fuch a Caufe thus prov'd, not from metaphyfical Speculations, out Proofs of the cleareft and ftrongeft Kind that the human Mind is capable of, we come in another Thread of Reafoning, to inquire into and prove the Nature of that Caufe, as it follows, with equal Cogency, from various Mediums of Argument, in the following SECTIONS. I. Of the infinite phyfical Power (if we may be allow 'd that Exprcffwn) of the Firjl Univerfal Caufe, les it follows from an evidently indefinite, if not actually infinite, phyfical Univerfe. II. Of the intelligent Nature of that Caafe ; as it follows from the mechanick Structure of that Univerfe. III. Of the moral Nature of that Caufe, as it follows a priori, from his intelligent Na- ture ; and a poftenori, from the moral Nature of the •Jhings produced. IV. Of divers other particular Attributes of the Firjl Caufe, as they follow from, and de- pend, as to our Knowledge of them, on the former. V. Of the Ends for which fuch an infinite, moral Agent mujt aCl in general, as tpey follow i. A priori, from his demonftrated moral Nature. 2. And are confirmed by the moral Ends dif cover able in his Works, in the fubfequent Difcourfes. N. B. Where we talk of any thing, as a necefTary Confequence of the Divine Na- ture, the Reader is not to underftand a phyfical, but moral Neceffity ; as it arifes from the voluntary, tho' infallible Rectitude of that Nature. Book I. ELEMENTS of LAW in General. 5 PART IV. Of the Dejigned Ends of Human Exiftence. The Ends of Divine Action thus difcovered, in general Terms; this Part is de- figned for an Inquiry into the Ends of Man's Exiftence more particularly : which will be done in the following SECTIONS. I. Of the metaphorical, or indiftincl Manner in which divers Writers talk concerning the Summum Bonum ; and the Manner in which this Inquiry muft be made. 11. Of the Ends of Human Exiftence in general, as they follow 1. From the beneficent andjuft Nature of the Fir ft Caufe. 2. From his Power and Wtfdom, capable of executing all that his moral Nature ditlates. III. Of the Ends of Malts prefent Life, as they follow 1 . From the Syftem of Things of which he is a Pari. 2. From the Powers and Faculties given him to obtain thofe Ends,- in Conformity to that Syftem. VI. Of the Future, and neceffarily immortal Exiftence of Man, or the Human Mind ; as it follows 1 . From the moral Nature and Power of the Firft Caufe. 2 . And is confirmed by the Circumftances of our prefent Life in the fol- lowing Parts. V. Of the Means given to Man for obtaining thofe Ends, in getter al Terms . PART V. Of the Laws, prefcrihed to Mankind, by the First Cause. Having, thus, traced Mankind up to their Origin, and, thence, difcovered the Ends of their Exiftence, with a general Sketch of the Means given for obtaining thofe Ends, we now evidently fee human Creatures, in the Eight of Agents, acting under an infinitely powerful and wife Creator, to Purpofes vaftly fuperior to, and more extenfive than, thofe narrow Views, which their Senfes feem at hrft to fuggeft. To which Deductions, however, tho' made, in a greater or lefs Degree, by the Body of Mankind in all Ages, many Objections have been ftarted, by Names of fome Note in the Philofophical World : chiefly drawn from the moral Nature of Things, as not anfwering to thofe Conclufions. But a little farther Reflection will alio fhew us, that Omnipotent Creator, in the Light of a moft perfectly beneficent, and juft Legiftator. In which we come, directly, 6 ELEMENTS of LAW in General, Book I. directly, to the principal Purpofe of tliis firft Book •, that is, to examine the Fitncfs of all Laws, by the Fitnefs of the Ends to which they are directed. Where, while we place alljr.it human Laws, on the folideft Foundations on which they can (land, the Purpofes of Infinite Wifdom 2nd Goodnefs, we fhall, at the fame time, put the finifhing Hand to demonftrating the Truths hitherto laid down ; by fhewing, that both the phyfical, and moral Syftem of Things are perfectly right .id fit, for the Purpofes defign'd ; and therefore, neceflarily, the Work of fuch a Caufe, as we have before attributed them to. And here, as a Thread of Reafoning that is, in part, new, will be offered ; fo it will be done with' that Modefty, which becomes a Man very fenfible of the fcanty Reach of human Knowledge, in general; and the yet narrower Compafs of his own, in particular. Tho' not without a firm Perfuafion, that Time will carry Difcourfes of this Kind to much greater Perfection, efpecially as to the minuter Circumftances, than can be here attempted, where we have Room for the Out' lines of thole Reafonings only : which will be confidered in general, in the i'ubfequent SECTIONS. 1. Of the Nature and Idea of a Law, in general. II. Of the falfe, or imperfetl Views of the Laws of the human Nature, given by divers Writers, in Difcourfes on, what they call, the Laws of Nature. III. Of thofe Circumftances of human Exiftence, and Knowledge, which point out to Man, his fever al Ends of Aclion, under various Penalties ; and that they are, in the proper eft Senfe, the Laws of his Nature. IV '. Of a phyfical Law, its Nature, Idea, and Fitnefs in general. V. Of a moral Law, its Nature, Idea, and Fitnefs in general. VI. Of the Neceffity for, and Fitnefs of, a proper Mixture of both thefe; for con- ducing Man to his dejign'd Ends, in general. PART VI. Of the Physical L^w of the Human Nature, and their Fitnefs. The Laws under which Man acts, in general, thus confidered, we come to a more particular Examination of the Phyfical Part of them ; which, (tho' they are, ,to Mankind, in a Sort, unconditional and abfolute) will, on a juft Inquiry, be found to be fo many moral Acts of the Firft Caufe, for the fitteft Purpofes. In the fecond Part of this Book, the admirable Structure of Things was confi- dered, as they prov'd the exquifite Intelligence only, of the Architect: but here, viewed in another Manner, they will fhew us, that fine Artift, in the Light of a molt perfect moral Agent ; in exact Conformity to what was, antecedently, proved from his Intelligence alone : which will be the Bufinefs of the following SECTIONS. Book I. ELEMENTS of LAW in General. 7 SECTIONS. 1. Of the Fitnefs of the Structure of the human Mind, and Underftanding, fo far as it Exifts and Ails by Laws wholly independent of human Will and A".' ion ; and of the Degrees of Neceffity under which Man ails, in that refpeil. II. Of the Fitnefs of the eftabl/fbed phyfical Laws of what we call, Body or Matter, in- general, for the moral Purpofes to which they are de/Jgn'd ; and the Degrees of Neceffity under which Man ails in thofe refpeils, as well in the Strut! ure of his own Body, as that of other Things. III. Of the moral Fitnefs of fever al of the mofl confiderable phyfical Circumflances under which Man Exifts and Acls ;. in the Points of his Generation, Birth, Life,, Health, Sicknels, and Death. IV. Of the Fitnefs of the phyfical Strutlure, of this Globe of Earth ; of the folar Syftem ; and the vifible Univerfe ; for the moral Purpofes to which they are evir- dently de/ign'd, PART VII. Of the Moral l^aws of the Human Nature,, and their Fitnefs, in general. The Fitnefs of that abfohte Government which is exercis'd over Man, by the phyfical Nature ot Things, as they are in reality fo many direct Laws, or Acts, of the Firft Caufe, thus explain'd ^ we proceed to examine, thofe moral Rules of Action, to which he is fubjected, by the Mediation of his own Underftanding and Will.. Where 'tis to be obferv'd, that as the former were the Inftances of thofe Kinds, and Degrees of Neceffity under which Men act ; thefe are the Points in which they are, in various Ways and Degrees, free Agents, to the Purpofes of their own Happinefs ; in Conformity to the abloiute Nature of Things, or that of other free Agents: which. we fhall confider, in general, in the following SECTIONS. I. Of the. Inflames, and Degrees, in which Mankind are fubjeil to the Conferences of their ownAclions, in general : which Ccnfequences are infliiled, either immediately^ by the phyfical Nature of "Thing:,, or mediately, by the Intervention c/moral Agents . II. Of that Degree of Liberty, and Power, which the phyfical Nature of Things gives, or leaves to Man : in tvhich Inftances, thofe phyfical Laws become fo many moral. Rules of Ailion to Mankind ; under their various Penalties. III. Of the Reafons for y and Fitnefs of, fubjctling Mankind to the Confeqnenees of their ozvn Actions ; in conformity to an eftablifhed Order of Things : without the Inter- vention of other free, or moral Agents. TV. Of the Reafons for, and Fitnefs of, jidjeiling Mankind to the Ail-ion,, and Interven- tion, of thofe moral Agents, which are their Fellow Cieatutes> in general. PART 8 ELEMENTS of LAW in General. Book I. PART VIII. Of the Laws of Sole Morality, and their Fitnefs. After the foregoing Inquiry concerning the Fitnefs, and Ufe, of thofe Circum- flances of Man's Exiftence, which fubjecl: him to the Confequences of his own Agency, in general : we proceed to a more particular Examination of that Part or them, whereby each Individual is dependent on his own Actions, in particu- lar ; in the following SECTIONS. 'I. Of the fever dl Points, and Degrees, in which the Individuals of the human Species are dependent on their own immediate Anions. •II. Of the Government, and Improvement, of the Underftanding ; as it is made necef- fary to Man, and depends on bis own Aclion ; under various Penalties. III. Of the Government, and Care, of the Body ; as each Individual /lands thereto oblig'd : and the Penalties attending its Negletl, or Abufe. IV. Of the Ufe, Bounds, and Fitnefs, of the Paflions, for both thofe Purposes : and the Penalties attendant on their Mifufe. V. Of the due Provifion of external Means, for all thofe Purpofes : as each Individual flands thereto obliged, under other Penalties. IV. Of the particular Reafon for, and moral Fitnefs of, this Part of the Laws under which the Individuals of Mankind are, in great meafure, dependent on their own ARions, conjider'd as the Appointment of the Firft Caufe,/i>r the Purpofes of Man's prefent and future Exifienee. PART IX. Of the Laws of Social Morality, or Human Society, in general \ and their Fitnefs. Having feen how the Nature of Things compel the Individuals of Humankind to a Care of themfelves folely confidered •, we proceed to examine how they ftand oblig'd to a fecial Life with each other ; partly under the fame, and partly under another Set of Penalties ; which will be confidered, in genera], in the fubfequent SECTIONS. i. Of the feveral Circumjlances and Wants of Mankind, which, as fo many Laws, make a foci a) Life neceffary to Man; under their various Penalties. II. Of the Kinds and Degrees of Similitude which run through the whole Species, and hold them to the general Law of Society ; and of the Kinds and Degrees of Dif- fimilitude, Book I. ELEMENTS of LAW in General. 9 fimilitude, which fit the Individuals, refpetlively, for fujlaining the different Of- fices of it. III. Of the fever al Degrees, and Kinds, of Society, to which Men ftand oblig'd thereby, both private and publick ; under their various Penalties. IV. Of the Ufe and Fitnefs of the focial Paffions, for thcfe Purpofcs ; and the Penalties that attend their Mifufe or Abufe, in general. V. Of the moral Fitnefs and Ufe of thefe Circumjlances of the human Nature in general ; which fubjecl Mankind to, and make them dependent on, each ethers Atlions mutually, in various Ways ; confidered as the Dejign, or Appointment of the Firft Caufe. PART X. Of the Laws of private Society, and their Fit?tefs. From confidering the Laws of human Society, in general, we proceed to ftate and examine, more particularly, that private Society, which the Individuals of Man- kind are, by the Nature of Things, obliged to cultivate with each other ; under the Direction of the private Underttanding, and the Guard of the private Force or Powers of thofe Individuals reflectively ; where their feveral Wills are fo many private human Laws, to the Obfervance of which Men ftand oblig'd, under the Rewards and Penalties of private Friendpip and Refentmtnt, of various Sorts ; lb far as thofe are permitted, by that publick Society, and thofe publick Laws, which will be confidered in the next Part of this Book. And here it may not be amifs to obferve, that this private focial Life, feems to be that, which fome Writers, emphatically, call the State rf Nature : And from whence, as if it were the only State natural to Man, they attempt to deduce that imperfect, and in divers Points erroneous, Body of Rules, which they call, the Laws of Nature. Which Error, and its Confequences, will be refuted by the whole Thread of this firft Book, as it will thereby appear, that the Laws of the human Nature cannot be> juftly, ftated, but from the zvhole Progrefs of that Nature ; and not from any particu- lar State, or Part of it. But to return to our prefent Point, this private Society and its Laws, which are, indeed in part, the moft immediate Objects of publick Society^ will be here confidered in the following SECTIONS. I. Of the feveral Circumjlances which, as fo many Laws, compel Men to a private focial Life with each other; under their various Rewards, and Penalties, general. II. Of the Difference of the Sexes, with the Connubial Society therecn founded, and its Laws -, under divers Penalties. III. Of the Parental Society, as it arifes from the Connubial, and its Laws; under their particular Penalties. C IV. Of i o ELEMENTS of LAW in General. Book L IV. Of tie Ilcnlc Society, between Mtifter and Servant % as it is founded on different Tal ody and Mind, internally ; and other Circumjlances ; externally with its arifing Laws, under various Penalties. V. Of that univerfal private Society to which all Men are held, as Inhabitants and Cul- tivators of the Earth ; as well for raifing as enjoying the Neceffartes of Life ; with its Laws, as they are the Foundations of Property, in general, and all Kinds of private Commerce in particular, under a Variety of Penalties. VI. Of divers of the more indeterminate Parts or Offices of private Society, for the occo.fional Purpofes of human Life ; where of general Beneficence, and parti- cular Friendftips ; with their Neceffity, and Laws j under their feveral Pe- nalties. VII. Of the Means by which the Individuals of the whole Species are diftindtly deter- mined to thefe private facial Acls, towards each other, in particular ; for which they are form'd in general. Where, of Signs, or Language, and Veracity therein,, in general, with Promifes and Contracts, &c. in particular; and their various Laws. VIII. Of the Precedence and Order of the Obligations arifing from thefe different Offices of private Life, where, by accident, they come in Competition with each other i and the Penalties attending on Breaches of that Order. IX. Of the Fitnefs of the focial Paffions, both concupifcible and irafcible, as they are partly the Spurs to, and partly the Guards and Inf or cement of, private Society, in. all its Parts ; with their Ufe and Bounds, under various private Penalties, that attend their Defeels, Perverfion, or Excefs. X. Of the moral Fitnefs of all thefe Parts of private Society in particular ; conjidered as the Infiitution and appointment of the Firft Caufe ; for the prefent* as well as future Purpofes of human Exigence. PART XI. Of the Laws of Publick or Civil Society, and their Fitnefs . FrtoM the Defect, or Excefs, which attends the unlimited Ufe of Mens private Underftandings, Powers, and Paftions, in the Exercife of that private Society, which we come laft from confidering •, Mankind are invited by many Benefits, on one hand, and compell'd by many Penalties, on the other, that is, by fo many Laws of their Nature, to fubmit to the Guide of a publick Under/landing ; and feek the Protection of a common Force, in many Points, that are the common Concern of all : "Which is act- ing in that Publick or Civil Society, which we come now to confider. With refpect to which 'tis alio to be obferved,, that the fame Nature of Things, that induces them to do fo ingeneral, under one Set of Penalties, does not forfake them there ; but obl'iges them to the Obfervation of a great Variety of Rules, m fo doing ; under another Series of Conveniencies and Inconveniencies, which follow in various Kinds and Degrees, according as thofe Societies, and the human Laws that regulate them, are more or lefs conlorm'd to the Nature of the Things they regulate ; Book I. ELEMENTS of LAW in General. h •regulate ; the doing of which, in every Point, is the great Bufinefs of Lcgillation, as we fhall fee in every Part of human Laws, when we come to confuler them. Tho' at the fame time, it may be afierted, as an univerfal Truth, that the worft Syftem of Civil Society that ever was inif.itur.ed, was attended with fewer Evils, than the intire Difufe of it would have been. So exactly do the Divine Laws of Man's Na- ture exert themfelves, in Proportion to his Complyance with, or Deviation from, them : The Examination of all which, in general Terms only, will be the Bufinefs of the following SECTIONS. I. Of thofe Circumftances of human Life, -which, as fa many Laws, make it necqjliry to Mankind to ufe the Direction of a Publick Underllanding, and feek the Pro- tection, or fubmit to the Controul of a common Force, in general. II. Of the Right thence arifing, to Mankind on one hand, and the Obligation they are under, on the other, to act in fuch Society ; antecedent to any particular Compact ; in anfwer to thofe, who found all Civil Society, on human Com- pact only. III. Of Publick Human, or Civil, Laws, under immediate Human Penalties, as thence refilling ; their Nature, Objebls, Parts, Kinds, and Fitncfs, in general IV. Of thofe Parts of Private human Society, in which Mens Private Dominion over their own Perfons, the Perfons or Actions of others, and over other Things, is to be defended by publick Civil Laws ; though under no other Penalties than thofe of private Reparation to the Perfons injured: Whence arife what 1, therefore, call the Laws of Private Civil Dominion and Subjection : ufually called Private Law, though improperly, becanfe all Civil Laws are publick ; which Parts of Law, their Kinds, Reafons, andFitnefs will be conf.-dered In General, in this Setlion ; In Particular in Book II. V. Of thofe Parts of Human Life and Action, which ought -to be directly regulated by, or fubject. to, the publick Underftanding ; under publick Penalties on the Offender, becaufe thofe Offences affect the whole Society : Whence arife what I, therefore, cdSthc Laws of Publick Civil Subjection; ufually called Criminal Law: of which, its Objects, Kinds, Reafons, and Fitnefs, In General, in this Section ; „ In Particular, in Book III. VI. Of thofe Rules, which are neceffary to conflitute the Being, and direct the Action, of that publick Underllanding and common Force, which muft give Birth to* and execute, the two preceding Bodies of Law : Whence arife what I, there- fore, call the Laws of Publick Civil Dominion* or Magistracy, in all its Parts both Subordinate, and Supreme : Of which, their Objects, Kinds, Reafons, and Fitnefs, In General, in this Section ; In Particular, in Book IV. VII. Of the moral Fitnefs of this Part of the Order of things (which fubject s Men, in this manner, mutually to each others Actions in Civil Society ;) confidered as the Appointment and Infiitiition of the Firft Laufe; for the Purpofes of Man's pre- fent and future Exiflence. C 2 PART 12 ELEMENTS of LAW in General. Book I. PART XII. Of the Laws of National Society, and their Fitnefs. Among the Circumftances, and Nature, of Things, which give Being to Civil So- ciety, we have before obferved, that no one publick human Underflanding, or com- mon Force, can exert itfelf beyond certain Bounds, without various Imperfections and Inconveniencies •, which, as lb many Laws, oblige Mankind to refolve themfelves into many fuch Societies. While, on the other hand, the Nature of human Life on this Earth, makes a Communication between thofe Societies, or their Members, in fome Cafes unavoid- able ; in many, very neceflary ; and in moll, very convenient : Which mutual Inter- courfe, however, cannot, any more than that between Individuals of the fame Socie- ty, be maintained, as it ought, without its particular Rules ; whence arife, what I therefore call, the Laws o/ National Society ; ufually call'd the Law ^/"Nations -, whofe Nature, Objects, Parts, and Fitnefs, will be confidered More Particularly, in Book V. More Generally, in the following SECTIONS. I. Of thofe Circumftances, in the Nature of Things, winch fet Bounds to all particular Civil Societies, on which the Being of many fuch depend ; with the Penalties that attend on their extending themfelves beyond proper Limits. II. Of thofe Circumftances of human Life which hold all fuch Societies, or their Members, to a mutual Intercourfe with each other, in a greater or lefs degree, under various Penalties ; with their arifing Rules and Duties ; which are the Laws of Peace between them. III. Of thofe Fails and Circumftances, which compel fuch Societies to hold each other, or, their conftituent Members, to thofe Laws and Duties of Peace, by direcl Force and Compulfion : with the Rules by which that muft be done ; which are the- Laws of War between them. IV. Of tie Fitnefs of this Part of the Nature and Circumftances of human Life (which fubjeel different Multitudes of Mankind to the Guide of different publick Under- ftandings, and at the fame time hold them to their mutual Duties by the Laws we come from examining j confider'd as an Appointment of the Firft Caufe, for its ge- neral and particular Purpofes. PART "Boor I. ELEMENTS of LAW in General. 13 PART XIII. Of tlie Future and Immortal Exiftence of Man^ or the Human Mind, with its arifing Laws, Having, thus, gone through, and examined the Nature, and Laws of human Exiltence ; lb far as we perceive it by actual Fail and Experience : We come now to advance our Inquiries concerning it, into that Futurily r for which we have, ante- cedently, fhewn that Man mull: be defign'd, by the Firjl Caufe. Where we have three Parts to execute : The firft of which is, to carry the Ar- gument for Man's future Exiftence, which was drawn a priori, from the abftratl Idea of the hirft Caufe, into a full Demonftration of the Certainty of that Exiltence, as one of the Laws of his Nature in general, by Proofs a pqfleriori from the Nature of his prefent Exiftence. The next is, to examine how far another Thread of Rea- foning will carry us, clearly, as to the Nature and Laws, of that future Exiftence, in particular. And laflly, we are to confider, what Effect that Difcovery has, or ought to have, on Man's prefent Life and Actions, according as thofe two Parts of his Exiftence ftand related to each other. Here, indeed, aclual Senfation and Experience do, in part, forfake us ; but as fure, and perhaps a more accurate Guide, will take their Places. For as thofe abftratl Reafonings of the Geometers, concerning Things which fall not under the Senfes, (fuch as the demonftrated Properties of a true Circle, or a true Cone, nei- ther of which were, perhaps, ever feen) are more clear and exact, than any Men- juration or Operation, that can be afiually and mechanically performed about thofe Figures : So, tho' the Conclufions to be drawn in this Part, are not the Confe- quences of any particular Facts, Senfations, or Experience, they are, however, the Refult of all the Fa&s, all the Senfations, and all the Experience, that ever were, or ever will be. That is, they are nothing lefs than the full Refult of the whole Nature of Things, collectively conficler'd in one Body : And will therefore appear to have an Evidence, as infinite, as that Nature, in its Extent ; as unfurmountable, in its Force ; as uniform and invariable, in its Tenor ; and 3S lafting, in its Duration. But as this is, in fome Sort, afferting before Proof, it had, perhaps, been better faid, after we had gone through, with allow'd Succefs, what will be the Bufincfs of che following SECTIONS. I. Of the Coincidence and common Tendency of all the preceding Reafonings, as they do, when taken together, amount to full Demonftration, and a future immortal Exiftence is one of the Laws of the human Nature. II. That fuch future Exiftence muft be the Refult of a certain eftablifhed Order of Things, independent of human Attion ; as to its abfolute Nature, in gene; al^ jujl as the abfolute phyfical Laws of Alan's Exiftence here are fo. III. 14 ELEMENTS of LAW in General. Book L III. Of the Impoffdnlily of difcovering what, we (for want of a better Term) muft call the Phylical Mode and Laws of that Existence, in general; though, with par- ticular negative Proof, that it cannot lye, locally, in any of the Scenes of this vifible Univerfe, as they are fuch. IV. Of fame Parts of the moral, or relative Nature and Circumftances of that future Exijlence, as they follow tnoft evidently, from various Mediums of Argument. V. Of the Reafons for, and Fitnefs of, divers of the Qircumflances of human Life and Exijlence here, which could not be fo fully fhewn, till our Reafonings were brought to this Point -, but which will, now, appear in fuch a Manner, as to throw new Light and Evidence on the whole Doclrine. VI. Of the Confequences of thefe Difcoveries, with refpetl to the prefent Part of human Life ; and the Laws of Aft ion thence arifing. Where we Jball find Man- kind flanding, diretlly, in thofe Relations (with refpetl to that Being, which we have, hitherto, call'd, the Firft Caufe) that are ufually underftood to arife between a rational Creature and his GOD; according to the more general Acceptation of that Term. "VII. Of the Neceffity for, and Fitnefs of, this Part of the Order of Things; which, with refpetl to Mankind, taken in general, difcovers the Nature and Laws of their Exijlence ; to Individuals in various Degrees, according as their Under/landings are more or lefs apply d to thofe Purpofes ;■ and to the whole Species, by the tra- ditional and accumulated Reafonings of the fucceffive Generations, which conftfl of thofe Individuals : whence that Law of their Nature arifes, which relates to thofe Difcoveries, under various Penalties. VIII. Of that Body of Doclrine, in Theory ; and Duties in Pratlice, which is, therefore, caWd Natural Religion ; as it is the full and evident Refult of all the pre- ceding Thread of Reafonings \ and contains the whole Code of Laws under which Man ath^ both to the Purpofes of his ■prefent and future Exijlence ;'fo far as they are difcoverable by Reafon only. With a fhort Sketch of which, this Book muft necefiarily be clofed ; as it is that Body of Doclrine, to which only, as common to all Mankind, we can properly refer, in Points where Religion is to be confidered, in thofe fubfequent Elements ofUniverfal Law, which are defigned to relate, equally, to all Nations. BOOK BOOK II. ELEMENTS O F T H E LAWS O F PRIVATE CIVIL DOMINION AND SUBJECTION; Commonly called PRIVATE LAW. Q^ Alte vero, &, ut oportet, a capite, frater, repetis quod qu/;v exprefs Contrails ; fuch as Partnerfhips in Ailion, and Services for a Term of Time, to general, or particular Purpofes ; with their confequent Rights and Obli- gations as inforced by Laws. Where, of perpetual Servitude, commencing by Vitlory in War, Purchafe, or Contrail. VI. Of perfonal Relations of a more tranfient Nature, that are terminated in fome par- ticular Ailion ; fuch as thofe arifing from exprefs Contrails for doing a fingle Ail, or particular Piece of Work ; with their arifing Conferences and Laws. VII. Of private perfonal Relations, arifing from tacit Contrails ; fuch as thofe between Perfons exercifmg any particular Trade or Profeffon, and the Perfons that en them, without exprefs Contrail ; their reciprocal Duties and Lai-:. VIII. Of perfonal Relations, arifing without Ccntracl, by certain voluntary Anions J for the Benefit of others, without their Rcquefls ; wiii- their emir^ing Rights and Obligations. jy. B. Voluntary Actions to the Detriment of others, of all Sorts, have their Places under the Article of H'rongs, to all the preceding, or fubfequeut Rights, &c. IX. Of the Derivation, or Transfers, of any of thefe Relations, or their reft Rights and Obligations, from the Perfons originally concerned, to others; with their feveral Modes, Confequents and Laws. Where, of Fidejuffors ; Bondfmeu i Affigns ; Executors •, and Heirs, (s'c. 22 ELEMENTS of Private LAW, Book II. PART IV. Of the private civil Dominion or Right which Persons may acquire in Things ; and its Laws, in general; ufually called the Laws of Private Property, Those private relative Rights that Mankind may acquire in each others Pcrfons or Anions, which include no diftinct Idea of Property, with their arifing Laws, thus examined •, we come now to inquire into the Powers they may gain over the various Things neceffary for human Life, called Property in them ; which, being a Right to the fole Command and Ufe of any Thing, arifes from the Impoffibility there is that any one Thing fhould ferve two Perfons, to all its pofiible Purpofes, at one and the fame Time : And gives, therefore, Birth to a very large, but very neceffary, Body of Laws, for determining who mould have that Command over them. For, as all Things neceffary for Life are capable of being wafted or worded, faved or improved ; if the Confequence of* fuch wafting or worfting, on one hand, and fuch Saving and Improvement, on the other, did not, by the Laws of Property, light on the Perfons who were the refpective Caufes of them, the whole Burden of human Life would fall on the few Frugal andlnduftrious ; 'till Pro- fufion and Idlenefs had reduced the World to a Defart : So weak are the level- ing Schemes of warm Heads, and fo vain the Chimasra of enjoying all Things in common. Some of thefe Laws, while wrapt up in Terms of Art, and confufedly difpofed, feem, in many Parts, a little intricate, particularly to Beginners -, but may, however, by Diflinction and Order, be rendered plain enough to the Attentive ■, efpecially if, like the Geometers, we begin with the fimpleft, and advance gradually to the mofl compound Parts of this Doctrine •, which will be begun, in general, in the fol- lowing SECTIONS. I. Of the Neceffity of Property, to human Life ; the Things in which it may be, and the Perfons that may have it ; with the Means of acquiring it originally, in general. II. Of the Proprietor's Rights in his Proprium, which, in general, are thofe of Retain- ing, Ufing, and Difpofing. III. Of the Proprietor's Right of Difpofing, more particularly. Where of Lending, Letting to Hire, Exchanging, Selling, Giving, and Tranfmitting by Defcent; with their Correlatives, Borrowing, Hiring, Exchanging, Buying, Receiving, and Succeeding by Defcent ; and the Laws thence arifing. IV. Of Wrongs done to the Proprietor's Rights, whether of Retaining, Enjoying, or Difpofing ; with their Confequences, in a new Sett of Rights, Obligations, and T /vms. Book II. ELEMENTS of Private LAW. 23 PART V. Of the Laws of Property in Things of a Consumable or Moveable Nature, in Particular. The Neceffity and Nature of Property thus explain'd, in general; we proceed, according to the propos'd Method, to confider the fimpleft Kind of it ; which is in thofe Things that perijh in the ufing •, or are of fo moveable a Nature, that they may be as effectually fecreted or loft, as if they were actually perifhed : and are there- fore fubjeft, in many refpefts, to the fame Laws with Things actually perifhable ; of all which in the fubfequent. SECTIONS. I. Of the feveral Kinds of confumable or moveable Things, in which Property may be acquired. II. Of the Acquifition of Property therein ■, whether intire or partial; fole or joint : with their fever at Laws, where of Pledges and Depofitums. III. Of the Proprietor's Rights therein, whether of retaining, ufing, or difpo/ing; ttjf/A their Laws. IV. Of the various Wrongs to fitch Rights therein ; and their Conferences, in the new Rights and Obligations thence emerging. V. Of thofe Laws and Appointments, by which a certain Degree of civil Permanency and Duration may be given, to fitch t otherivife, periihable Things ; and their confequent Rights, &c. in general. PART VI. Of the Laws of Property in Things of an Inconsumable Nature, in general; being the Doclrine of Original Property in them. Property in its mod general Nature, and the fimpleft Kind of it, in moveable or consumable Things, thus examined ; we come to thofe of a more permanent and com- pound Sort i where, 'tis to be obferved in general, that Portions of the Earth we inhabit, are of fo compound a Nature in themfelves, by the Variety or their Produces, or Ufes, and at the fame time fo durable, that it is the various Keitrictions, Limi- tations, or Conditions, under which Mankind have diftributed thofe Portions out to each other, according to their feveral Wants and Defigns, which give Rife to the more intricate Parts of this Doctrine : And, in order, therefore, to deliver and examine it with the greater Clearnels, we will Win with the Idea of intire and unlimited Property in them, called by the ° Latins, 24 ELEMENTS of Private LAW. Book II. Latin;, Plenum Dominium, and may, not insignificantly, be "called Original Property, in Englifo : The Confideration of which, in general, will lead us diftinttly into all its Confequences, as will appear in the following SECTIONS. I. Of Original Property in Portions of the Earth ; the Perfons and Means by which it really was, or by which, for DiJlinSfion's Sake, we may fuppofe it was ac- quired. II. Of the Original Proprietor's Rights in fuch a Proprium, which, in general, are retaining and ufing it to all its poffible Purpofes, or difpofing of it intirely, or partially, and that with various Limitations or Conditions. III. Of the Original Proprietor's Right of difpofing Part of the Ufes to which a Por~ lion of the Earth is ferviceable, and retaining the 'Thing, with its other Ufes, to himfelf: whence have arifen various Kinds cf partial Property, and as many Sets of reciprocal Rights and Obligations. IV. Of the Proprietor's Right of fetting fome limited Duration to the Difpofitions he makes of his Property: whence have arifen all limited Eftates for Lives, Tears, &c. with another Kind of reciprocal Rights and Obligations. V. Of the Proprietor's Right of making any, or all the precedent Difpofitions of his Property, either abfolutely, or on certain flipulated Conditions ; and thofe either tranfient, or permanent, between himfelf and the derivative Proprietor : whence have arifen a great Variety ^/"conditional Property, and as many va- rious Kinds of reciprocal Duties and Obligations. VI. Of the fitlitious Power of feparating all the poffible Ufes of a Thing, from the Right of retaining it ; and vejling them in different Perfons : whence has arifen Pro- perty in Truft, to other People's Ufes ; whether particular Ufes, or Ufes at large ; and a confequent Set of Rights and Powers, both in the Perfon re- taining, called a Truftee, and in the Perfon ufing, who may, by Analogy, be called an Ufee. VII. Of the Original Proprietor's Right of difpofing, or tranfmitting any intire Pro- prium jointly, to 7nore Perfons than one ; whence has arifen Joint Property, with its feveral Rights, and Laws. PART VII. Of the Laws of partial Property, as they arife from a Dijlribution of the different Products, and Uses, of the fame Portio?i of the Earth to different Perfons. Though no one Portion of the Earth can ferve two Perfons, at the fame Time, to all its poffible Ufes, whether of enjoying, or difpofing ; yet may the various Products and Ufes of which 'tis, at the fame time, capable, be diftributed to dif- ferent Book II. ELEMENTS of Private LAW. 25 ferent Perfons : as the Herbage to one, the Trees, &cc. to another, the Minerals to a third, and To on : where their feparate Interefts, in Things lo naturally united by their Origin, neceffarily produc a Variety of Laws, for regulating their, mutual Rights therein ; which, notwithftandmg all fuch Precautions, lo conllantly clalh, as to render ibme of thefe Kituls of Property very incommodious to the Poffeflbrs, and detrimental to the whole Society, by preventing Improvements, &c. but of that tran- siently. This kind of Property, and its Laws, will be examined in the following SECTIONS. I. Of thefe Kinds of partial concurrent Property, with the different Relations, Rights and Wrongs which they give rife to, in general. II. Of Property in the vegetable Producls of other Mai's Soil, of freer al Kinds, the mutual Rights of the Owner of the Soil, and the Perfcns to whom fuch Producls belong, and the Wrongs to them. III. Of Rights to the taking wild Animals in other Mens Soil, by Hunting, Fifh- ing, or Fowling, fcfc. with their arifing Wrongs. IV. Of Property in, or Rights to, the Foffil, or Mineral Produblions of another Soil. V. Of Rights to Ways, Watering, &c. in other Men's Lands. VI. Of Rights to ufe other Men's Building for the Support or Foundation of our own, fuch as Property in the upper Stories of Buildings, ufual in fame Towns, and our own Inns of Courts. VII. Of Property of thefe Kinds, as they may be vefied in fame Man's Perfon, or c.p- pendent tofome other Portion of the Earth : with their Rights and Laws. PART VIII. Of the Laws of Limited Property, as they arife from Limi- tations fet to the Duration and Extent of the Proprietor s Right ; Being, according to the English Laws, The DoSfrine of E S T A T E S. Besides the foregoing Kinds of concomitant Property, which the various Pro- duels and Ufes of any Portion of the Earth gives Birth to, the indefinite, if not infinite, Duration of thole Portions gives the Original Proprietor an Opportunity of difpofing of his Right in them for various limited Times, or Terms ; and that, eitheryJ;;?//y to one Perfon for his Life, or for a Number of Years ; or fubfequently to one Perfon for his Life, and to another for Life or Years, &c. afterwards. In which Cafes, the original Proprietor retains to himfelf, or his Reprefenta- tives, his Right, in Things fo difpofed of, for all the Refidue of that indefinite E Dura- 2 6 ELEMENTS of Private LAW. Book II. Duration of which they are capable j which remaining Right, the Englifo Law, in fome Cafes, calls a Reverfwn ; becaufe at the Expiration of fuch lin^ited Terms, his entire Right reverts or returns to him. Now, this manner of limiting Property gives Birth to many neceffary Rules, not only of publick Law ; for determining, how far Men ihall have Power to tranfmit fuch Limitations to Pofferity ; but alio of private, to adjuil the refpeftive Rights and Interefts of the original, and the derivative Proprietors, in thofe Limitations which are permitted. Among which Rules lye fome of the more intricate Qiieftions of either Law , though the Difficulties often arife, rather from the Significations of the Words, in which fuch Limitations are attempted to be expreffed, than from the Things them- felves; which are generally pretty plain, where that Signification is once agreed on ; but of that tranfiently. This Doctrine of Eftates will be examined in the fol- lowing SECTIONS. I. Of the various Kinds of Limitation that may be fet > either to the Duration of a Proprietor's Right in his Proprium, or to his Power of difpofing of it ; with their Caufesy and Conferences, in general. II. Of Property limited by the Quantity of Profits reaped ; fuch as Alignments of Lands, &c. for the Payment of tertian Sum, Isle. III. Of Properly limited by divers Portions of natural Time; as Days, Months, Years ; with the refpeftive Rights of the original and derivative Proprietor, where, of Pro- perty at mere Will or Sufferance. IV. Of Property limited by the Duration of particular Perfons Lives ; arifing either from the Aft of the Parties, where of ordinary Property for a Life, or Lives ; or from the Appointment of fome Law, where of Tenant in Dower, and by Cour- tefy ; with the refpeftive Rights and Powers of both the Proprietors ; and the Wrongs to thofe Rights, &rc. V. Of Property limited by the Duration of one Man, and the Dependents of his Body, by one particular Woman, whether Male only, or at large ; with the refpeftive Rights of the original, and derivative Proprietors in the frft or fecond I?iftance,&cc. where of Fee Tail Special, Tenant after Poffibility of IiTue extinct, &c. VI. Of Property limited by the Life of one Man, and the IJfue of his Body in general, whether Male only, or at large •, where of Fee Tail General, csfc. VII. Of Property limited by various other Contingencies, that are out of the Power of the Proprietors ; for if they are in the Proprietor's Power y they become properly Con- ditions, and belong to the fubfequent Part of this Book. VIII. Of Property limited by fubftituting divers of the preceding Limitations, to take Place, one after the other, with their Effefts : where of executory Devifes, con- tingent Remainders and Perpetuities. IX. Of Book II. ELEMENTS of Private LAW. 27 IX. Of Property, at targe, to a Man and all his Confa.iguinity, called, in Englifh, his Heirs, and his Property a Fee Simple ; which, tho' it vejls the Derivative, with all the Rights and Powers of the original Proprietor, is yet, both in Terms and in EffeiJ, a eivil Limitation ; fince, in cafe of Death without /llicnation of Kindred, the Proprium, according to the Laws of mojt Nations, returns to fome real, or fuppofed, original Proprietor, and is' called in Englifh an Ef- cheat. PART IX. Of the Laws of Conditional Property, as derived from cer- tain Conditions annexed to the Proprietor s Right. Under which are contained, The Laws of Feudal Property, and EngliJJj Tenures. Again, the Proprietor who difpofes of his Proprium, in any of the partial, limited, or entire Manners which we come from examining, may do it, either ab- folutcly, or on. certain ftipulated Conditions ; and thofe, either tranfient, and end- ing in a fingle Act, as Lands to a Man on the Provifo that fuch, or fuch, an Ad be done ; or permanent, which go along with, and accompany thofe Difpo- fitions through all the Time of their Duration, or through certain Parts of it, as Lands to a Man fur Years or Life, &c. on Condition that he does certain annual or occafional Services, or pays certain Sums of Money, &c. annually. These durable Conditions may, again, be fimple, as thofe above-mentioned, or accompanied with certain perfonal Refpedts, of Honour, or Fidelity, or both, which the derivative Proprietor and his Reprefentatives, are to perform to the Perfon of the original Proprietor, and his Reprefentatives, who, in that Cafe, is called a Valvafor or Lord; which Lord, likewife, owes Protection to the derivative Proprietor, who is called a Vaffal or Tenant, and the Thing fo held, a Feud, in Scotland a Feu ; but has not, in the Englijb Law, any Name that diftinguifheth it from things held by the fimple Conditions, of mere Rents or Services. This Kind of Feudal Property, introduced by the Longobards, Saxons, &c. has fpread, more or lefs, all over Europe, and, from the vaft Variety of its attendant Rights and Services, many of them local and peculiar, gives Birth to a long De- tail of Laws, of which, the Rules of our own Tenures are evidently a Part ; but, in confidering them, I fhall content myfelf with fuch general Views, as may ferve to lay before my Readers, the Purpofes to which they were originally defigned, their moft fundamental Maxims, with their Benefits or Disadvantages to Civil Society in general. Conditional Property will be therefore confidered in the following SECTIONS. {. Of the feveral Kinds of Conditions on which Men may difpofc of their Property, whether tranfient, or permanent; with their U/es, Fitnefs^ and F.ffetls, in ge- neral. E 2 11 Of 28 ELEMENTS of Private LAW. Book II. II. Of Property on thofe tranfient Conditions, which, in a fingle Atl, antecedently give Birth ; or fv.bfequently, put a Period, to the Proprietors Right. III. Of Property held on the frmplcfl Kinds of permanent Conditions ; fuch as ordinary Ser- vices, or Rents, whether natural, and in Kind; or artificial, in Sums of Money : With the mutual Rights and Powers of the Landlord and Tenant. IV. Of Property held by Feudal Duties and Services, in general ; the Things or Prc- priums that are ufually fo held, from particular Portions of Land, up to Sovereign Principalities themfelves : With the mofi remarkable Rights and Services attendant on them. V. Of the Feudal Services or Tenures, mofi frequent in England, in particular ; with their larger Compofttions, into Manors, and Honours, and their attendant Courts and Regalities : Under which, formerly, lay Part of the fubordinate Government of England, both Civil and Military. VI. Of the original Derivation of thofe Tenures, from the Crown, or King, as Lord Paramount ; his consequent Rights and Powers ; with the Courts of the Conftable, or Earl Marfhal, and that of Wards and Liveries thereon attendant : Which in- volved feme of the Civil, and the great eft Part of the old Military Government of the Kingdom. P A R T X. Of the Laws of Property in Trust, to other Perfons Uses. Nor are we yet at the End of human Invention, for giving Permanency to their Property, and letting Bounds to the Difpofitions they make of it. The Idea of a Proprietor's Right to retain his Proprium, without ufing it, has given rife to the fictitious Separation of thofe Rights, by giving the Right of Retaining, to one Per- fon ; and the Right of Ufing, to others : Where the former is called a Truftee, and the latter may therefore be called an Ufee. The firft Intent of this Difpofition was, doubtlefs, to make the Truftee, called in Latin, Fiduciarius, abfolute Maffer of the Thing ; under no other Reftraints than thofe of his, private, Honour and Prudence : But fuch Confidences were fo frequent- ly abufed, as foon induced the Creators of them, to add fome fpecial Limits thereto; on which the Magiftrate interpofing, to fettle the refpeetive Rights of the Truftee and Ufee, the Reafonings thereon grew, at laft, to one of the moft lubtile Parts of Law. For this metaphyseal Doctrine of Property, (as I think it maybe called) when followed, as it may be, and was, thro' moft of the different Kinds of Propriums hitherto mentioned, in all their attendant Conveyances, Suits, Pleadings, isc. produced fo much double Proceedings, fo many Circuities of Action, and fo much Intricacy in them all, as made a further Set of Regulations requifite, efpe- cially in our Laws. The NecelTky for which, the Reader will perceive, by the fecond Section of this Head •, where this Doctrine is purfued, in its unlimited State, through fome remarkable Parts of Property, and by which he will the bet- ter Book II. ELEMENTS of Private LAW. 29 ter understand the Limits actually let to it, both by the Reman Laws, and our own. This Doctrine of Trufts and Ufes will be Hated in the following SECTIONS. I. Of Property in Trujl, its original Dcfign, various Kinds and Purpofes, in general. II. Of Property in Trujl, to private Ufes, confidered, in its unlimited Confequences, through divers remarkable Heads of La w. III. Of Property in Trujl, to private Ufes, as it Jlands regulated by the Roman Law.-. IV. Of Property in Trujl, to private Ufes, as it Jlands regulated by /foEngifh Laws ; efpecially the Statute for converting Ufes into Poffeffion. V, Of Property in Trujl, to publick Ufes, which cannot be conveniently converted into Poffejfon, becaufe they belong to an uncertain Multitude, fucb as fome of the Perfons mentioned in the lajl Part of this Book, and where the Truflee, thtf other-wife a private Man, becomes a fort of publick Magiftrate for the Dijlri- bution of the arifing Profits, &c. among that Multitude : Such as our Trustees /cr divers charitable Ufes, &c. PART XI. Of the Laws of Joint Property, as they arife from the fame individual Thing's being the Property of different Perfons. But notwithstanding all thefe preceding Cautions, which Men have taken to hold their private Rights and Properties, in Things, feparately from each other •, to avoid the various Inconveniencies that attend Community therein: Yet divers Circumstances of private civil Life throw them again into a Community ; fuch as voluntary Gifts, Purchafes, Defcents in Law, &c. and that thro' molt, or all, the preceding Kinds of Property ; which gives Birth to another Head of Laws, either for adjufting the Manner in which they (hall enjoy fuch Things, jointly ; or for dividing them into fe- parate Propriums, where fuch Separation is practicable. And here it may not be amifs to obferve, That thefe Kinds of Property are very diffe- rent from that, which in the feventh Part preceding, we have called Partial Property^ which confifts of really feparate Propriums, in the different Products ot the lame Por- tion of Earth; whereas thefe arile from one and the fame individual Prop rium's be- longing to different Perfons, jointly ; the Nature and Laws of which will be confidered in the fuofequent SECTIONS. i I. Of the fever al Fatls or Accidents, which give rife to Joint-Property, and t : c fever a I Things in which it may be, with their Conferences, and arifing Rights, in general, where of Joint-Enjoyment, Joint Conveyance, Partitions, &c. in general. II. Of 50 ELEMENTS ov Private LAW. Book II. II. Of Joint-Property in intire Portions of Earth, or their partial Products; its arifing Rights and Laws. III. Of Joint-Property in the limited Propriums before-mentioned, or Efiates for Terms; its arifing Rights and Laws. IV. Of Joint-Property in the conditional Propriums before-mentioned, its arifing Rights and Laws. V. Of Joint- Property in Trufts andUfes; its arifing Rights and Laws. VI. Of Joint-Property in Things of an incorporeal Nature; its arifing Rights and Laws. VII. Of thofe two Kinds of Joint -Property, which the Englifh Law, in particular, diftinguifheth by the Names of, Joint-Tenancy and Tenancy in common ; their different Rights and Laws. PART XII. Of the Laws of Property in Things of an Incorporeal, as well as an Inconsumable Nature. Hitherto we have, principally, confidered the private Dominion that may be acquired over corporeal Things, which have a phyfical Exigence ; whether they are the confumable and moveable Products of the Earth ; or thole permanent Portions of ir, whence, as from fo many Funds, fuch confumable Things are derived. But befides thefe, the durable Nature of human Life and Obligations, ("either in private Individuals, and their Reprefentatives, or in civil Society) gives rife to various Sorts of permanent Obligations and Rights ; from whence, as from fo many inconsumable Sources, human Subfiftence is deriv'd, in a Manner fomething analogous to that deriv'd from Lands : Such as Stipulations for the Payment of annual Sums, for Years or Life, tiff. Rights to the exclufive Exercife of feveral Trades and Arts, 6ff, and fuch are the Refidue of an original Proprietor's Right, during the Time that a particular Eftate is granted out of his durable Proprium, called, in the Englijh Law, a Reverfion : ?uch alfo are the conditional Refervations ot Rents and Services, whether Simple or Feudal, on which Men convey their Eftates : Which laft Sorts we have already confidered in part; but, as in many Refpefts they lie under the Rules pe- culiar to Things of an incorporeal Nature, it will not be amifs to review them here, in that Light. I am fenfible that divers of thefe Things are, by fome Civilians, thrown into the Doctrine of Obligations at large ; as they arife from private Contracts : But, as I am writing in Englifh, and perhaps to EngliJImien only, I fhall herein conform to the Style •of our own Laws, which, for many Ages, have treated many of them in a Manner Similar, in divers refpefts, to Eftates in Land : And as this Manner of ftating them is, in itfelf, the moft diftinct, fo it will be my Authority for ranging fome others under the'fame Head ; which, if it would not have feemed too great a Novelty, I might have ftyl'd the Laws of durable Propriums, that have only a moral or civil Exiflence y in Con- tradistinction to Lands, which have a phyfical one. Of all which in thefe SECTION S. Book II. ELEMENTS op Privatf, LAW. 31 SECTIONS. I. Of the fever al Kinds of incorporeal Things, in which Property may be; their com- mon Agreement among themfehes, and their common Difference from thofe of a cor- poreal Nature, in the Manner of their Exijlence, and Acouifition, tkc. in general. II. Of Property arifing from mere pcrfonal Contracts, of a permanent Nature, for various -Terms, as Tears, Lives, csV. where of Annuities, Pensions, Offices, of Profit about private Perfons, &cc. III. Of Property arifing from perfonal Jtls or Contrails of a durable Kind, but locally charged on Lands -, where of Rent-Charges, Corrodies, &c. IV. Of Property in Rights to the fole Exercife of certain Trades, Arts, or Inventions, for various Terms : which, taking rife from publick Laivs, are fo many Funds whence human Subjiflence is derived. V. Of Property in civil Offices of Profit, which, by the Laws of various Countries, may be held for Terms, fome of them hereditary, and transferable by private Contrail : where, while publick Laws hold the Officer to his Duty, under divers Penalties, the Laws of private Property defend him in *he Enjoyment of the Pro- fits ; which, in that Cafe > become a kind- of private Property, with a publick Charge annex' d. VI. Of Property in publick Debts ; which, with their affigtfd Securities for Payment of Interejl, become, till they are difharged, fo many Funds of confumable Property ; whether exifling in the form of pint Stocks, cr Separate Annuities, (£c. VII. Of the Property an original Proprietor has in the Refidue of a definite or indefinite Term, during the Time that afhorter Term is granted out of it ; whether attended with conditional Rents, or Services, or not, called a Reverfion. YIIJ. Of that incorporeal Ki'.'d of Prcpriitms which conjifis in Rights to Redrcfs of Wrongs, ejpecially to fome Kinds of durable Property, which (as Things of civil Exiflence, that may be retained, us'd, transferred, cr extinguiflfd by Laws, peculiar to themfehes) are a kind of Property, in the general Senfe in which we have hitherto us'd the Word, for the Confideration thereof, this feems the proper Place ; tho' the Forms and Methods of obtaining that Redrefs belong to the Laws le, the Objects of thefe Laws are very differently placed, indifferent Syftems of Law, fome of them being handled in the Doctrine of Perfons, before Pro- perty has been confider'd, tho' they include that Idea very dillincliy ; others of them being referred, in a very cohfufed manner, to the Duty of fome Magiflracy, to which indeed they all in part belong, as they may come judicially before them : But, as they do, when juftly confidered, belong to this Body of private Law, and as the Neceffity and Fitnefs for them all follow, evidently, from nearly the fame Principles, I have ventured at the Novelty of collecting, and placing them together, under this common Title, of the Laws and Rights of private Incapacity. Where, however, the Reader is defired to attend to the Limitation of private In- capacity ; Cmce publick Incapacities (except in the Cafe oi Aliens before fpoken to) are, in themfelves, fo many penal Sentences of the Law itfelf •, and have, therefore, their Places in the criminal Part of it •, of which Kind are many of our own, and fome of the Roman, Diminutions Capitis : But of that tranfiently •, it is thofe private Incapa- cities, only, that will be confidered in the following SECTIONS. I. Of the feveral Kinds of thefe private Incapacities; the Reafons for, and Ways of, providing agaihjl them, in general. II. Of the State of Infancy, with the Lofs of Parents ; or with fufpecled or unnatural Parents, in thofe that have Property ; its Rights and Laws. IVhere of Orphans or Minors, and their Guardians. III. Of the State of Idiocy, in thofe that have Property. Where of fuch and their Guardians. IV. Of the State c/Lunacy, in thofe that have Property, its Rights and Laws. Wlyere o/Lunaticks, and their Guardians. V. Of the State of Infancy and Poverty, without Parents, or, with fuch as are them- felves incapable; its Rights and Laws. Where of expofed and Foundling Chil- dren, and their Care, in various Ways. VI. Of the State of Poverty in Adults, with Sicknefs, decrepit old Age, and Lunacy. Where of Hofpitals, Alms-houfes, and Bethlehems. VII. Of the State of Poverty in valid Adults, but without prefent Opportunities of fub- Jifting, though willing, and induflrious ; its Rights and Laws. Where of Work- houfes, &c. Note, ldlenefs, and Vagrancy in this State, with Bridewells, &c. are the Objects of criminal Laws : And. though, for Conveniency, their Pro- vifion may be, locally, the fame, yet 'tis under very different Rules ; and fhould be, if poffible, in different Places alfo •, becaufe bad Examples are more apt to fpread than good ones, efpecially among that Rank of Men. BOOK III. ELEMENTS O F T H E LAWS O F PUBLICK CIVIL SUBJECTION, Ufually called CRIMINAL LAIV. Omnia fare, non omnia, refequi •, parvis peccatis, veniam ; magnis., feveritatem comma- dare : nee pcend femper, fed fepius pcenitentid content us effe. Tacit, vit. Agricol. [ 35 ] INTRODUCTION. I "^ H E former Book having confidered the Nature of, and Reafons for, thofe Laws by which Men are immediately maintained and fupported in the Exercife and Enjoyment ot their private Rights, and focial Life ; we come, in the prefent, to examine the Expediency of thofe publick Rejiraints under which they are ufually laid, as fo many fit Mediums for the fuller, or eafier, obtaining the former Ends ; for fuch, on a juft Examination, they will all be found : Tho' there is this Difference between them, that thofe were a Body of Rules, to the Obfervance and Support of which the •whole Society is tied, for the Sake of each Individual imme- diately, and the Publick more remotely ; whereas thefe are a Set of Laws, to which each particular Perfon is obliged, for the Benefit of the Community, primarily ; and his own, but in the fecond Place ; but forming, both together, that Reci- procation of Duties, on which all focial Happinefs in Civil So- ciety muft depend. Some of the Rules of this Head are, indeed, fuch as require the Legislator's exact Attention, left, inftead of preventing, they mould occafion Mifchief; but, when wifely inftituted, F 2 they 36 ELEMENTS of Criminal LAW. Book III. they are of great Ufe, for private as well as publick Good ; contributing in the higheft Degree to make the Society quiet, and flourifJhing, internally ; powerful, and therefore peaceful, externally ; and durable, in all thofe Refpects. All which will be considered in the feveral fubfequent PARTS of this BOOK. I. Of Publick Civil Subjection, as it arifes from the feveral Duties that the individual Members of Civil Society owe to the Publick, and its Laws in general. II. Of the Laws that are defigned to prevent the Breach of all Publick Duties in general, by Publick Regulations of Religion. III. Of the Laws that are defigned to prevent the Breach of all Publick Duties in general, by Publick Regulations of Education. IV. Of the Laws that declare, and punifh the Breach of, thofe Duties that Men, in all States of Private Life, owe, indire&Jy, to the Publick. V. Of the Laws that declare, and punifh the Breach of, thofe Duties which Men, in the particular Profcffions of Private Life, owe, indirecJly, to the Publick. VI. Of the Laws which punifh the Breach of thofe Duties, that all the f.tbordinate Members of Civil Society owe, direBly, to the publick Government, or Magijlracy itfclf. PART I. Of Public Civil Subjection, and its Laws, in geiieraL Before we enter on a fpecifick Examination of thefe Laws, and their Objects, in particular, it will be very proper to confider the Duties on which they are founded, with their Nature and feveral Kinds, csV. in general ; which will be done in the following SECTIONS. I. Of 'the 'Duties which the feveral Members of 'Civil Society owe to the Publick, as the Foundation of 'thefe Laws, in general. II. Of the feveral publick Inconvenieiicies, Damages, and Crimes, that arife from the Breach of thofe Duties. III. Of Book III. ELEMENTS of Criminal LAW. 37 III. Of the feveral Kinds of publick Prevention, Reftraint, Correction and Punifh- ment, their Degrees and Fitnefs, as Remedies, in genera/. IV. Of the Idea of Diltributive Juftice, as Jlated by fome Writers ; and, whether there is, or can be, any other Moral Relation or Proportion betzveen Crimes, and the. r Punifhments, than thofe of repairing Damages, amending the Offender in prefenl, and pirventing the like for the future ? V. Of the Nature and life of Remiffions, or Sufpertfions of Puni/hment, and abfolutc Pardons, with their proper Objecls, and Laivs in general. PART II. Of the Laws that are defign'd to prevent the Breach of aH Publick Duties in general, by Publick Regulations of Religion. This general View having (hewn us, that the Prevention of Evils is among the molt eligible Means of Civil Government; and as, of all Preventions, thole are the moft effectual, that, by reaching the Heart or Underftanding, take away the Will to offend, Religion mult, in various Lights, be the Object of the publick Un- derftanding. For, as its jult Inculcation may be one of the firmeft Bonds of Society, fo, both its unregulated Influence, and injudicious Regulation, often have been, and always muft he, productive of fome of the moft fatal Difturbances to civil Peace ; which pofliblcj or rather certain Effects of it, in all thofe Ways, give it jultly the firft Place in this Plead of Laws ; where it will be confidered in the following SECTIONS. I. Of Religion, and Mankind, as they are, by the Nature- of their Being, Worfhipers of fome God; whence arifes the Neceffity of fome Regulation thereof , with what that ought to be in general. II. Of Laws that eftabli/h the publick Teaching of the Dotlrines of feme Religion in Theory only, and their Neceffity ; to prevent the infinite various Illufions ofprivat • Opinions, and their evil Ojnfequences : And how far Men may be compelled to a due Examination, only, of that Ihecry. III. Of Laws that eftablifh publick Acts, and Ceremonies of Worfhip, in Ccn r crmity to fuch pullick Theories ; and how far Mn may be compell'd to a Participation therein. IV. Of Laws that tolerate the publick teaching of private Opinions, or Syftans of Re- ligion \ their Mature and bounds. V. Of Laws that tolerate the publick Exercife of A€ts and Ceremonies of ll'orffip, ac- cording to fuch private Opinions ; their Nature and Bounds. P A R T 38 ELEMENTS of Criminal LAW. Book III. PART III. Of the Laws that are defigned to prevent the Breach of all Publick Duties in general, by the Publick Regulation of Education. Mens Minds, thus armed againd Dclufions, by the Care of the publick Under- ftanding, and inJlrutJed in Doclrines, that mud teach them, that one of their princi- pal Duties, in this Life, is to perform all the Offices of it, in due Submiffion, either active or paffive, to the Laws of the Society of which they are Members. The next Means of preventing Evils are the Rules which the Legiflator provides, at Ieaft, where he docs not prefenbe, for educating the growing Generations, in proper Habits of Mind and Body, whether Intellectual, Moral, or Technical ; for on thofe de- pend, in every Way, their future Ufefulnefs, to themfelves, each other, and the Pub- lick : Which will therefore be confidered in the following SECTIONS. I. Of Education in general, and the Laws that merely provide publick Means for it, in every Way, without lnjuntlions for ufing them. II. Of Laws that regard or regulate Education in the Mechanick Arts of raifing, or fa- bricating the various NeceJJaries of Life. Where of Apprenticefhips. III. Of Laws that regulate or regard Education for the Mercantile Purpofes of exporting and importing, or Domejlick Dealing in thofe Commodities. IV. Of Laws that direel the forming of Mm for the publick Praclice of the more liberal Profejions, efpecially Medicine, Law, and Divinity. V. Of Laws that regulate Diverfions, both private and publick, of all Sorts ; which, as they tend evidently to induce various Habits, both good and bad, of Body and Mind, are manifeftly Objetls of the publick Under/landing. Where of Games of all Kinds, publick Spectacles, Plays, fcfr. VI. Of Laws that regulate the uncommifTion'd AfTembly of Multitudes, which, though fafely fuffered, among a well-difciplin'd People, to many innocent Purpofes, cannot lie, wholly, beyond the Eye, and Hand of legal Controid, without great Danger both to private Perfons, and the Publick. PART IV. Of the Laws that declare ', and puniJJj the Breach of, thofe Duties which Men, in all States of Private Life, owe, indireclly, to the Publick. Nor is it fufficientto form Men, antecedently, by Religion and Education, to the Duties of civil Life, in order wholly to prevent Mifdoing : The publick Undcrftand- Book III. ELEMENTS of Criminal LAW. jq ing mud accompany them on, thro' the of the VUV a ( 'ffi Parts of it, retraining, bypqfitvve Punifhments, as they o cafu fe, many Of- fences that the former Precautions could not prevent-, which is the only Medium of governing approved of by fome Realbners, though, ic feems, a little incautiouQy ; fince, without fome Degree of thole previous Preventions, the! tent Remedies would, in many Cafes, be ineffectual, and in fome, the Occafions tor them become fo numerous, and univerfal, as to render their Reftraint, by immediate l'unilhment, impracticable ; but of that tranfiently. As to thefe Laws which look both Ways, and punifh the Paft in regard to the 1 u- ture, we will firft examine that Part of them, which, without any diretl regard to the Magiftracy, reftrain Mens Actions, in private [octal Life: And though many of them, when confidered in their Jingle Inilances, feem to affect the whole Body but lightly ; they are yet of fuch a Nature as, it practifed by Numbers, would be highly detrimen- tal, if not entirely deitructive to it. For which Reafon, they are punifhed varioufly, rather in proportion to the Obfti- nacy of particular Offenders, or the popular Inclination of Multitudes to the like Of- fences; than to the individual Offences confidered in themfelves •, and are, for the fame Reafon, often ranged, in Difcourfes, according to the feveral Kinds and Degrees of afTigned Punifhment ; which may be very convenient for Practice, but the Order of Things whence they arife, as ftated in this Book, feems fitter to give the Student methodical and juft Ideas of them : For which he is alio prepar'd by the mere Mints of them let fall in general Terms only, in the feveral Parts of the precedino- Book to which they relate. And, as thefe Laws either regard Men in all Conditions of Life, or are peculiar to them under fome certain Characters, or ProfeJ/icns, I fhall referve thefe laft tor the fub- fequent Part, and confider thole more general Duties and Reftraints only, in the fol- lowing SECTIONS. I. Of the feveral Kinds of thefe indirect Duties and Injuries to Society, with the Rea- fons for their Reftraint in general. II. Of Laws that regulate Mens Government of their own Perfons, in various Ways as the Society is interefted therein : Where of Idlenefs and Vagrancy in the Poor ■ and divers Kinds of Debauchery, and Sell- Murder, in both Poor and Rich, (sc. III. Of Laws that reftrain Men as they are Contractors, by refcinding, or even punifh- ing fuch as are contrary to publick Good : Where, of various Combinations, Ufury, and Wagers, together with criminal Breaches of'fruft, m Affirmance of fome Contrails. IV. Of Laws that appoint certain particular Signs, Words, and Inftruments, for contr ailing or conveying ; where the Prevention of infinite Uncertainty, and Dif- putes, is the Good aimed at ; and the mere Nullity of the Ail is the Punifhment of Nonconformity. V. Of 40 ELEMENTS of Criminal LAW. Book III. V. Of Laws that govern Men as Proprietors, as the Publick is interejled in the Ufes, or Dij'pofitions, they make of their Property : Where 0/Profunon, and fumptuary Laivs, due Provifwns for Children, Perpetuities, and Mortmain, &c. VI. Of Laivs which, over- and- above private Compenfaticn, affign further PunifJjments for Injuries, of divers Sorts, to other Mens Lives, and Perfons, as the Publick is interejled in their Welfare : Where of Threats, Afiaults, Maims, Rapes, Mur- ders, &c. in that Light. VII. Of Laws that, befides Reftitution, inflict publick Punifhments for various Injuries ts other Mens Property : Where of Theft, Robbery, Forcible Entry, &c. PART V. Of the Laws that declare, and punijh the Breach of, thofe Duties which Men, in Particular Professions of Pri- vate Life, owe, indireEily^ to the Publick, The immediately preceding Fart of this Book having given us fome Idea of the Private Duties, which Individuals, in all States of Life, owe to the whole Society, and the Laws that criminally punifli the various Breaches of them ; our next Bufinefs is to confider thofe which arile from certain particular Characters or Profefilons, which pri- vate Men put on, and the Laws which reguluce and govern them therein, refpective- l y- For every Man, who afiumes a Character to himfelf in civil Society, from the meanefl, as that of a common Labourer, or Servant, for Example, to the mod confi- derable of private ProfeiTions, fuch as Merchants, Phyficians, Advocates ; in a word, Perfons of all particular Employments, owe, in that Refpect particularly, certain Du- ties to the Society of which they are Members, as they receive Protection from it, un- der thofe particular Characters. This Point, though it is true in all Cafes, is moft evident in fuch Profefilons and Myfteries, as are accompanied with exclufive Rights to the Exercife of them ; which, as we have feen, in the Part which treats of Mens Education for them, is, by modern Ufage, the Cafe of almoft all Trades, &c. fince it would be the highefi. Abfurdity to fuppole, that the Publick Underftanding fhould veft certain Perfons, only, with Rights to praciife certain Profeflions, and yet leave them, therein, to their own Wills, in- tirely without Controul; becaufe fo doing, would be to expofe Men mutually to each GXher's Craft and Frauds, without Remedy. For the fame Education, and conflant Practice, that qualifies them to perform thofe Things better than others, does, at the fame time, make them more capable of Deceit, &c. therein : which is, in general, the Foundation whereon the Laws of this Clafs ftand : Tho' it mull: be own'd, that they are fome of thofe, which, if notwell con- trived, (to a certain Degree at leaft) do more Hurt than having none at all, in thofe Points, would ; which is by no means the Cafe of the Laws of Private Property and Contrails, or thofe of Publick Magiflrccy, of which the word, that ever were formed, are mnch better than none. Where, Book III. ELEMENTS of Criminal LAW. 41 Where, neverthelefs, it may be obferved, that, as the very Feing of Civil So- ciety is owing to the Laws Iaft-mention'd, id its Well-beings and flourifhing State, are much owing to thofc or this Head, when well contriv'd and duly executed ; which will be examin'd in the following SECTIONS, I. Of the Nature and Reafons for thofe Laws which govern Men under particular Characters and Proreffions of Private Life, with their Objeiis in general. II. Of the Laws that govern the Loweft Order of People, as mere Labourers, or Servants at large, &c. III. Of the Laws which regulate the Raifers, Preparers of, or Dealers in, the mofi immediate Necefiaries of Life -, fuch as Corn, Bread, Fleflj, &c. who in very populous States and great Towns efpecially, are, if unregulated, capable of impofing on their Fcllow-Subjecls in many IVays. IVhere of Weights, Meafurcs, Prices, Markets, Isle. IV. Of Laws that regulate the Numbers, or JVays of working in various other Mecha- nick Arts and Trades, whofe Wares are thereby capable of being reduced to any Standard of Goodnefs, or proper Degrees of Plenty and Cheapnefs. Where of pub - lick Premiums and Difcouragements, according as thofe Arts are more or lefs v.feful, or wanted. V. Of Laws that govern Domeftick Dealers in grofs of all Kinds. Where of Fairs, Staples, Coin, Monopolies, &V. VI. O/ Laws that regulate the Mercantile Employments of carrying out Domeftick, or bringing in Foreign Commodities, of all Kinds ; which, of all the Laws of this Head, is a Part of Policy of the greatejl Concern and life to each Society, as their Riches at Home, and confequently their Strength and Power Abroad, are thereon mojl immediately dependent. Where of other publick Premiums, Dif- couragements, or Prohibitions. VII. Of Laws that relate to the Government and Behaviour of thofe that pratlife the more liberal and learned Arts, fuch as Law, Medicine, &c. VIII. Of Laws which regard thofe who voluntary offer themfelves as private Inftru&ors of the People, in any way whatever. Where of the Liberty of the Prefs in ge- neral, and voluntary Tutors or School-mafters, &c. as they are a fort of Pro- fcffions, in particular. PART 4 2 ELEMENTS of Criminal LAW Book III. PART VI. Of the Laws that punifi the Breach of thofe Publics Duties,. which all the Subordinate Members of Civil Society owe,. direEily^ to the Government, or Magistracy itfelf. The Laws which govern Mens Actions, as they are indirefily related to the whole Society, thus confidered ; we come next to examine the Rules by which they are direclly fubjected to the Magiftrate himfelf, confidered as fuch ; which are a Set of Duties effential to the very Exigence of all Government, being, in Uriel Term?, the Correlatives to it. These Laws take their Rife, indeed, reflectively from the feveral Laws of civil Dominion, as delivered in the fubfequent Book •, and therefore, tho' they are plac'd here, that this Code of criminal Laws might be intire and full, yet, as their Reafons cannot be thoroughly underftood, till the Laws and Nature of Magiftracy are known, the Student muft fufpend his Application to them, till he is, in ibme Degree at lead, acquainted with thofe Sources whence they flow ; where they are reflectively hinted ar, in their Places, as thofe of the precedent Parts are in the Rook ol private Liberties and Rights. But the fuller Examination of each of them is referr'd hither,, both as it is their proper Place, and as we thereby avoid wandering from the principal Bufinefs of the other two Books ; which, in each of them refpectively, is to deliver, affirmatively, what Men may or ought to do, either as Subjecls, or fubordinats Magiflrates ; who, in that refpect, are Subjects ■, while the Confideration of the Laws, and Reafons, for punifli- in°- their doino- what they ought not, are referved to this Book : In the prefent Part of which we fhall examine the direct Offences to Magiftracy itfelf in the following SECTIONS. I. Of Subjection to Magiftracy, its Nature, Parts and Reafons ; with the Offences: thereto, in general, cither by Subjects or ful ordinate Magiflrates. II. Of Offences to judicial Magiftracy, or publick Juftice, either By private Pefois, Litigants, or their Representatives. Where of futi- lities for want of due Forms. Of rafh Litigation, Forgery, Perjury, Barratry, Concealment, or Compofition, of Crimes, &e. By fabordinaie judicial Magiftrates, or their minifterial Officers, &c. where. Of Delay, Denial, or Sale of Juftice, &c. Of Vfurpation of Power, or Jurifdtt'tion, &c. III. Of Book III. ELEMENTS op Criminal LAW. 43 III. Of Offences to Fecial Magiftracy, and tbofe either By Subjects ; where Of various Breaches of the Laws of Nations, as Subjecls ft and obliged to obferve them by the municipal Laws of each State, and as each State ftands, thereby, obliged to punifh or furrender fucb Offender ; By fubordinate Fecial Magistrates ; where Of Neglecl of the appointed Forms of Proceeding, or Negletls of Duty, fo far as exprefs Civil Laws declare the Duty of fucb Officers : together with undue Extent, or Ufurpatton of Power by them, &"C. IV, Of Offences to Military Magistracy, or the Laws of publick Force, cither By Subjects, who are not Military Perfons ; where Of Breaches of the publick Peace, and of Oppofition to the publick Force, of all kinds, &c. Or, By Military Perfons •, where Of Neglecl of Duty, in Military Per fens of all kinds ; of unwarrantable or ufurped Exercife of Power by fuch, &c. V. Of Offences to the Laws of Fifcal Magiftracy, or publick Property of all kinds ; and thofe either By Subjects ; In Mifufe of publick Things ; Neglecl, or Refufal to fay publick Dues, or Taxes ; undue taking, and converting publick Properly io private Ufes, &c. By Fifcal Officers •, where Of Neglecl of Duty, or undue Extent of Power, in the providing publick Things, or Property, &c. Of Mifapplication, Imbezzlement or Peculation of publick Things, when pro- vided, &c. VI. Of Offences to the Rules of Legiflative Magiftracy, either By Subjects ; where Of falfe or partial Information given to Legiflators, by Perfons examined before them, in order to the making or altering of Laws. Note, That other Of- fences to Legiflative Magiftracy, being to Laws in general, include the Subject of the whole Book. By fubordinate Legislatures ; where Of Neglecl of Duty ; Want of due Forms in Proceedings ; or undue Extent of Authority ; in Magiflrates vefted with fubordinate Legiflative Powers of any kind. VII. Of Offences common to all the preceding kinds of fubordinate Magiftracy ; which, In Subjects, are the Neglecl of that mere perfonal Reverence and Regard that is due to them. In Magistrates themfelves, are the actual Exercife of the feveral Offices to which they may happen to be appointed, without fuch /w7/V«/tfrQualifications as are required by Law. G 2 VIII. Of / 44- ELEMENTS of Criminal LAW. Book HI. VIII. Of Offences directly to fupreme Magiftracy itfelf, whether More general ; where Of tbofe general tranches of Civil Allegiance, which are neither direct Offences to any of the preceding Parts of Magiftracy ; nor direct Attacks on the Per- fonal Rights and Dues of the fupreme Magiftrate .* Such as entering into Fo- reign Service ; abetting or aiding foreign Enemies ; betraying doineftick Councils or Secrets, &c. where of the Crimina Ljefas Majettacis, or Trea- fons of this kind. More particular ; where Of Offences to the perfonal Rights and Dues of the fupreme Magiftracy^ where ever it is lodged: Such as Plots to diveft fupreme Magiftrales of their Offices, or Power, by Violence ; or direct Attempts againft their Lives, which, in the Cafe o/"Princes efpecially, differ but very little : "Together with Offences againft Perfons nearly related to them, as Wives, Children, Servants, &c. Where of the Crimina Laefre Majeftatis, or Treafons of this kind. BOOK BOOK IV. ELEMENTS O F T H E LAWS O F PUBLICK CIVIL DOMINION, O R MAGISTRACY, Ufually called the LAWS of GOVERNMENT. Sine Imperio, enim, nee domus ulla, nee civitas, nee gens, nee bominmn univerfum genus, Jiare, nee rerum natura omnis, nee ipje mundus, poteji. Cic. de Leg. Dial. 3. [ 47 ] INTRO DUCTION. TH E two preceding Books of this Work having ftated, examined and prov'd, what are thofe private Rights in which Men mould be maintained, on one hand, and what arc the publick Duties to which they ought to be compelled, on the other ; the Bufinefs of this Book is, to inquire into the Means by which, each of thofe may be, the moil effectually perform'd. With refpect to which it may be obferved, in general, that, as the preceding Laws were Rules which the publick Underftanding lays down, ad extra, for regulating the Actions of Subjecls, confider'd as fuch ; fo all tbofe of this Book are fo many Canons, which it forms, ad intra, for its own Con- duct, or that of its fubordinate Officers ; analogous, in fome Degree, to thofe internal and reflexed Ads of the Mind, where it obferves, judges of, and lays down Rules for exerting itfclf juftly in, its feveral Operations. And we will therefore, accordingly, make our Enquiry into the Nature and Reafons of thele Laws, in a manner fomething different from what is ufual, by coniidering the feveral Jimple Ends, Fun&ions, or A&s of Government, fepa- ratcly ; fo far as they may be fo fcparately exercifed ; and then examine 48 ELEMENTS of the LAWS of Magistracy. Book IV. examine their common Union in, and Dependence on, the publick Underjlciiiding, or fupreme Magi/?racj> itfelf ; which will, I apprehend, ftate and exhauft the whole Idea of Ma- giftracy very diftindtly ; and, at the fame time, afford us an Opportunity, of reducing the Laws, or Rulers thereto relat- ing, into a more orderly Syftem, than thofe in which they are frequently delivered : All which will be done in the feveral following P A R T S of. this BOOK. I. Of Publick Civil Dominion, its Nature, Objects and Parts, in ge- neral. II. Of the Laws of Judicial Magiftracy ; being thofe Rules of Publick Dominion, which govern internal Judicature. III. Of the Laws of Fecial Magiftracy, being thofe Rules of Publick Dominion, which govern external Judicature. IV. Of the Laws of Military Magiftracy ; being thofe Rules of Publick Dominion, which govern the Common Force. V. Of the Laws of Fifcal Magiftracy ; being thofe Rules of Publick Dominion, which govern the Publick Property. VI. Of the Laws of Legiflative Magiftracy ; being thofe Rules of Publick Dominion, which direct the making all Publick Rules of Aclion, or Laivs themfelves. VII. Of the Laws of fubordinate Societies, as they are a compound kind of fubordinate civil Magiftracy. VIII. Of the Laws of fupreme Magiftracy ; being thofe Rules of Publick Dominion, which conftitute the Being, and, in part, direcl the Aftion, of that publick Under/landing, which muft exercife civil Dominion in the highefi Inftance. PART Book IV. ELEMENTS of the LAWS op M a v. 49 PART I. Of Publick Civil Dominion, its Nature^ QbjeSis, Parts and Laws, IN GENERAL. Before we enter into the fpecifick Detail, of this cxtenfive and mod important Part of Civil Laws, it will be very proper to confider their Origin and Nature in general, a little more diftinctly than was done in the Firft Book [a] ; which will be perform'd in the following SECTIONS. I. Of the feveral Circumflances of human Nature and Exiftence, which give Rife to, and make Publick Civil Dominion or Magiftracy neceffary to Mankind. II. Of the primary Objects or Ends of Magiftracy in general. III. Of the Neceffity for examining and determining Controverfies which arife within Society ; whence Judicial Magiftracy. IV. Of the Necejfty of examining and judging concerning Wrongs from without, to the Society, or its Members ; whence Fecial Magiftracy. V. Of the Neceffity of a Force fufficient to execute the Refult of thofe Judgments ; whence Military Magiftracy. VI. Of the Neceffity for publick Things, or Property, for the performing thofe and other publick Purpofes ; whence Fiical Magiftracy. VII. Of the Neceffity for publick Jlanding Rules, as the common Meafure and Guide of Aclions, both private and publick ; whence Legiflative Magiftracy. VIII. Of the fecondary Ends of Magiftracy ; whence its Delegations and Subordina- tions : Where of the Diftribution of the Territory of a State into feparate Diftritfls and minor Parts, for the diftintler Exercife of all the fubordinate Offices of Go- vernment. IX. Of the neceffary Union of all theft Powers, in form one, fimple or compound, Un- derftanding and Will; whence Supreme Magiftracy. X. Of the feveral Characters or Ranks of Men ; which, as they are partly the Con- ferences of private Life, fo, they are partly the Foundation of publick Domi- nion : Where of that celebrated tyeftion, Whether Dominion be, originally, in the Body of the People, as fuch ? XI. Of the feveral Qualifications which fit Men for Magiftracy, and the various l!\>y; by which they may accpire, or be vefted with it, in gen. (a) Book I. Part XI. H PART 50 ELEMENTS of the LAWS of Magistracy. Book IV. PART II. Of the Laws of Judicial Magiftracy, being tliofe Rules of Publick Dominion, which govern Internal Judicature. From the preceding general View of the feveral Ends, or Means of Publick Domi- nion, 'tis evident, that we ought firft to confide? the Rules of Judicial Magiftracy ; which is that Part of them, that regulates the Method of examining the Agreement, or Difagreement, of all particular- Action's, with the general Rules, to which they ought to conform, fince it is from the Reiult of thole Examinations, that the Pub- lick Force muft always take its Directions. In the earlier Ages of the World, and the Infancy of Civil Societies, before di- ftititl Laws were formed, either by Precedent or exprefs Precept, 'tis apparent that this Ma nitrate was, in one and the fame tnftance, Legijlator and Judge ; having no other Rules but the Underftanding of a prudent, and the Confcience of an honeft Man : But thole, in their moft perfect Inftances, produced fo much Uncertainty and Confufion, as foon induced Mankind to refort to exprefs Lav:s for their Guide, even in the Methods of Judicial Proceedings themfelves, which, if left unregulated, would often produce Refolves little lefs erroneous, than the particular Actions con- ning, which they pretend to determine ■, and, in fome Cafes, be more hurtful, as they would add the Weight of publick Force, to private Wrong. And here I muft obferve, that tho' the Redrefs or Remedies for Injuries, of all ts, done to private Peribns, lie in this Magiftrate's Keeping, and are therefore a Part of Publick Dominion, yet, it is not unufual, to deliver the Doctrine of . ■■ous, or Remedies for fuch Wrongs, in the Inltitutes, and as a Part, of private Law j which, tho' it may be convenient to lead the Students of aStual Laws into the ready, and early, Practice of them, feems not fo agreeable to the Order of a rational and philofophical Inquiry into their Nature and Reafons, in general •, which has in- duced me to referve them to this Place, that the Kules of Judicial Magiftracy might appear in one Body, unbroken and intire. Tho', in a Head of Law not only of fuch Extent in itfelf, but fo varied by the different Inftitutions of different Nations, or of the fame People, to different Purpofes, the Reader, inftead of a Detail of all its minute Particulars, muft expect fuch a fum- nary View of its moft effential Parts, as is confiftent with the Purpofe of fo general a Difcourfe as the prefent. Which will be given in the following SECTIONS. I. Of judicial Magiftracy, its Ends, Objeils, Parts, Kinds and Laws, in general. II. Of the Perfons vefted with judicial Power, whether Jingle Perfons, or compound Bodies, and their minifterial Officers ; the Method by which they may le called to their Office, with their Power, as it is difcretionary and legiflative, in the Cafes of making Rules and Orders for judicial Proceedings, as well as ftrictly judicial. in. or - - ■ Book IV. ELEMENTS of the LAWS of Magistr kc\ . 51 III. Of the Nature, and effential Parts of folemn judi< ral, and «j ' by the Objects of Litig. Pleas. IV. Of the Paris and Order of folemn judicial Proceedings, as , Laws. V. Of the Parts and Order of folemn ju .to the I of England : ll'bere of the firfl: Matter of Suits, \ Appearances, ju- dicial Caution, Prifons, Picas, Iffues, Trials, Evidence, Judgments, 1 cutions, &c. &c. VI. Of fummary judicial Proceedings ; their Nature, neceffary Parts, and Objects. VII. Of the various Limitations of this Magiflrate's Office, internally, as to the Oljccts cj Litigation: Where of Judges, or Courts refrained to particular Kinds ol Pl< their Nature and Reafons. VIII. Of the various Kinds of Limitations of this Magiftrate's Office, externally, /?;;ort of delegated Societies lie in our way : But, as they bring, in Effect, a kind of compo. fubordinate Magiftr3cies, which, in very extenfive, or populous States, are of great, and even neceffary Ufe, we could not rife, by juft Degrees, to the full Idea of preme Power, till we had examined their Nature and Laws. Without which fubordinate Governments, the fupreme Magiftracy could not, fo well, attend to, or provide for, many of the minute Circumftances, to which fuch in- ferior Societies reach very effectually. Especially if that exorbitant Ufe of Power, which they are, from time to time, fubject to fall into, be kept under a proper Controul ; as is done, amongft ouri by the Court of King's- Bench, with refpecl to our Corporations, &c. by the i Council, with relpedt to our Plantations, &c. and by the King in Parliament, in reipect to them all. Wi t h regard to the Conjlitution of which Societies, and the Means i gg them, the fupreme Power cannot well be too exact or cautious; fincc, without fuch Care, they may be, in divers Inftances, not only fo many Seeds of Faclion ■, but 1 It i Sedition, and turbulent Revolutions : For, by their legislative, judicial, and other Powers, they hold large Numbers in immediate Union; and, by their frequent Affem- blies, give their particular Governors eafy, and frequent, Occafions for acting to Purpofes: But of that, at large, in another Place. Their Rcalons and l.i confidered in thefe I S E C T I O N I\ 5-8 ELEMENTS, of the LAWS of Magistracy. Book IV.. SECTIONS. I. Of fubordinate Societies, as a Species of compound fubordinate Civil Government: The Ends, or Objeils of their Power; with their Ccmftitution, and Laws, in gene- ral. Where of Bye Laws, in general. II. Of Societies for the Government of particular mecharrickr, or mercantile Trades ; that have, within them/elves, fame Sorts of Legiflative, Judicial, and Fifcal Ma- giftracy, for thofe Purpofes : Such as were the Colleges. cfArtizans, among the Romans ; and are our own Guilds and Companies. HI. Of Societies for the Purpofes of Learning and Knowledge in general, or particular, bavin* divers fucb-like Powers, within themfehes ; of which kind are our Col- leges, and Univerlities : Their Ufe, Nature, and Laws. Of Societies for Military Ends, whether by Land, or Sea ; of which Sort are an Army, or "a Fleet, govern' 'd by its General, or- Admiral, at the Head of thgk Council of Officers ; for regulating many Parts of Military Dilcipline, &;c.. in ge- neral; and all military Operations, in particular: which are too variable, and occasional, to fall under the exprels Rules of Civil Society. Where of Martial Law ; and Courts Martial, &c. V. Of Societies for the limited- local Government of particular Towns, having fome, fucb-like Powers in themfelves; fitch, as the Roman Municipia,.a»i our own Corporations : With their Ufes, Laws, and Limits. VI. Of Societies for Religious Purpofes, having certain Legiflative, Judicial, and other Powers, within themfelves, with refpeel to the Theory and Practice . of Religion : ■_ Their Conflitution, Ufe, Bounds, and Laws, in general. VII. Of fubordinate Civil Societies, with the iniire Exercife of all Parts of Civil Govern-, ment ; (except, perhaps, the. Fecial Powers of War and Peace) but in various Sorts, and L)egrees, of Subjection, to the fupreme, or fubordinate, Magiftracies of the dominant State, or Society : Such as were divers of the Roman Colonies, and. Provinces, and fuch are our own Plantations, Ireland, &c. BART VIII, Of the Laws of Supreme Magiflracy \ being thofe Rules which. co?tfttute, or regulate , that Pu buck Understanding, which muft exercife all Parts of PublkkDominio?i y in the highest Infkance, The feveral diftincl; Objefts, Ends, or Ads, of Magiftracy, with their arifing Laws, thus, fcparately, confidered ; we come to the highefi and mod arduous of all Civil Inquiries, which is that concerning Supreme Magiftracy itfelf; being that Body of Rules, by which the Perfon or Perfons, in. whom all the preceding Poweri.. Book IV. ELEMENTS of the LAWS of Macistp \cv, Powers muft be united, are called to the Office, and wfted with the Rights, cither of exercifing thole Powers, in the higheft Inftance, where they are not i '. • or •of delegating them, where fuch Delegations are lit, and n ceflary. But (as the Importance of this Charge has, not only, i the coo/eft 11 agitated the warmeft Spirits, of every Age and Nation, more than all tii or Law and Government) 'twill be fufficicnt to fl itetl e feveral molt ien. of fupreme Magiftracy ; with their refpective Reafons, A tages, in general Terms only: Leaving the reft to be determined by thole fuj Powers themlelves, as in Faff they exilt. Which Powers are, perhaps, the only Umpires that Mens PaJJions (both when in Power, and when out of it) have l io l In ■on their Underftandings, to let pure Reafon have its kill Weight, on cither the numerous Queftions that arife on this I lead of Lav. s : \\ here, alfo, we mul forget to obierve, that many of thefe Queftions are among thofe Points ol Law, which vary according to the Circumftances of the People to whom they relate ; : fore, determinable in probable and relative Terms only. And, here, 'tis to be, again, remember'd, that, though the InftitUtton ol • Supreme Power, is always the firfl Thing to be done, in the atlual Efta any one Civil Society •. yet, the Rules of its Eftablifhment, are, in Thei Point of Confideration : For, 'till we have diftinctly examined all the pieceding Ob- jects of Law, we can neither determine, what Powers the Suprem Magiftracy ought to be veiled with, m general; nor judge, comparatively, of the different Ad' arifing trom any propofed Form, in particular ; becaufe the Difference arifes, from their being more or lefs fitted to anfwer thole Purpofes : As the Reader will perceive by the Manner in which they will be •eonfidered and ■eompal Which Confideration and Companion is net a 'little neceffary, becaufe feom Power, where-ever 'tis lodged, there can lie no Appeat, by exprefs Law ■, tor, to w foever fuch Appeal fhould lie, there the Supreme Magiftracy would refide ; an on, to an abfurd and imprafticable Infinity : Which, however, has been attem: by fome refining Heads, 'till, in their Schemes, Government, like an unwieldy Ma- chine, is overloaden, and ufelefs, by the Multiplicity of its own Motions; but ol ths tranfiently in this Place. Thefe Laws of Supreme Magiftracy will be confidcrc the following SECTION -S. I. Of Supreme Magiftracy, its Ncceffity, effential Rights card Powers* and "-•■ :; Forms in general. JI. Of Supreme Magiftracy, lodgd in the Body of the People, which is called. Demo cracy ; whether ftrictly fuch, where the whole Body concurs m all grt of State, fuch as making La-ws, internally ; Peace or I Far, txternalfy ; and con- ferring Offices for either Purpefe • or improperly /?, where that Body exerts .• by Colleges of elected Representatives : With their neceffary Rights, andC.-r.c- niencies. J 2 HL ^f 60 ELEMENTS of the LAWS of Magistracy. Book IV. III. Of Supreme Magiftracy lodged in a Body of Hereditary Nobility, which is called an Ariftocracy •, its necejfary Rights, Conveniences ■, and Inconveniencies. IV. Of Supreme Magiftracy lodged in One Peribn, whether abflute, or with Controul; Elective, or Hereditary ; ufually called Monarchy •, its neceffary Rights, Advan- tages, and Difadv cut ages. V. Of divers of the mojl remarkable Mixtures, Compofitions, and Decompofitions, of tbofe three Jimpler Forms ■, with their Laws, Advantages, and Difadvantages : In a very com ife Manner. VI. Of that particular Mixture of them all, which formerly was, and which now fecms to be, the Conftitution of the Englifh Government : Its various Perfections and Ad- vantages : Together with a veryfhort Sketch of the Legislative and Executive Powers ; as thereon, feparately, dependent, &c. A general REMARK, concerning the Ufe and Nature of thefe Elements. And here, the Reader, if he recollects, will perceive that he has been led, from the fimplft Objects of Private Law, through a Series of intermediate Deductions, up to this moft compound Idea of Supreme Civil Power, as it ftands upon its general Reafons. This is, therefore, the Point from which the Student ought to fet out, in the direct Study of the aclualhaws of any Particular Society ; by ftating the Conftitution and Laws of its Supreme Power, and defcending thence, through all the Parts of its Subordinate Magiftracy, its Criminal Laws, and its Laws of Private Rights and Property, in an Order, almoft reversed to that which has been here obferv'd, where, I may venture to lay, he will find the great Out-lines of all Laws, whatever, which he may fill up with thole Particular to any one State, as they ftand, partly, on their general Reafons, and, partly, on Maxims peculiar to themfelves. And, from the fame Point, if he looks forward, into the general Doctrine of the Law of Nations, as there delivered, he will find the like Out-lines of that Particular So- ciety's Situation, with refpedt to all the States about it, which may, in like manner, be filled up, with all that is fingular to it, in thole refpecls, at any particular Time, &V. With an Example of which, in a very fhort Sketch of the Laws of England, as the moft general Plan of a little Institute thereof, this Book will be clofed ; according to what is propofed in Seftion the Vlth, foregoing. N. B. This Remark is placed here, both as it ferves to explain the Author's Idea, of the Ufe of fuch a general Difcourfe as the prefent ; and as it may help the Reader to account for what might, otherwife, feem peculiar ; either in the Order, in which the Subjects of it are difpofed ; or in the Terms, in which they are exprefTed. For, as all particular Bodies of Law have, both an Order, and a Language pe- culiar to themfelves, a Difcourfe concerning Subjects common to all, or moft, of them, could not, properly, agree, in thofe refpects, with any one of them in par- ticular. BOOK BOOK V. ELEMENTS OFT H E LAW k-7 O F NATIONAL SOCIETY, AND INTERCOURSE, Ufually called the LAW of NATIONS. -Inter quos, autem, ratio, inter ecfdem recta ratio communis eji : qu, iuterna/Iy, maintained, in one Society, by one common Force, under the Direction .of one common Understanding. And it appears, from what has been faid, both in the Firlc Book, and the latter Part of the preceding, that the whole Species cannot be included in any one fuch Society : Becaufc^ no one publick Understanding could perceive what was fit to be done ; nor no one common Force execute it, though per- ceived, beyond certain Limits ; which Limits^ though they have no precife Bounds, do yet fall vaftLy lhort of the Extent of the whole Earth. This Truth, every body perceives, when 'tis exprefled in other Terms ; for, when we talk of univerfal Monarchy , or tmiverfal Empire, People, the leaft acquainted with Civil Government, perceive the Inconvenience or being made a Province ; that . is, of having their Laws made by Pcrfons too- remote, and too little acquainted with their Circumstances to make them ?W; and to have them alfo, bad as they wot be 64 ELEMENTS of the LAW of Nations. Book V. be, yet more lamely executed, in fome Inftances ; or {trained to tyrannical Purpofes, in others ; and that without the Pof- fibility of any timely or fufficient Redrefs, becaufe of their Diftance from the common Center of Underftanding and Power. This was, what in the earlier Ages of the World, ren- dered thofe vaft Governments, called 'The Four Great Monar- chies , fo odious to Mankind ; and fucceiTively pulled them down : 'Tis thefe Circumftances, alfo, which have made the Idea of an Univerfal Monarch, though within the Limits of Europe itfelf, frightful to all her wifer States ; and has, juftly, given Birth to that Sort of national Policy, which is, now, fo well known, under the Style of maintaining the Ba- la?tce of Power. Nor is the oppofite Extreme, of confining themfelves to too fmall a Compafs, lefs incon' enient ; fmce, how well fo- ever fuch Reftraint may enable the Supreme Magiftracy to govern at Home, it renders thofe Societies incapable of De- fence Abroad-, and fo expofes them, perpetually, to the Danger of becoming Provinces to greater States ; or to fuf- fering more from them, than if they were fo. Which, notwithftanding their boafted Plans of Liberty, was the Cafe of the Commonwealths of Greece ; and of our own Country, formerly, under its Heptarchs : And is ftill the Cafe of the Helvetick Body, and fome of the petty States- of BookV. ELEMENTS of tiif. LAW of Nations. 65 of Italy : The firft being rather fafc in the Biirrcnncfs, than the Strength of their Mountains ; and the latter, whofe fertile Fields pay better for their Conqueft, arc perpetually fubjecl to the Attempts of their ftronger Neighbours ; while their mu- tual Jealoufies of each other, make them incapable of mutual Defence. Mankind being, therefore, thus neceffarily divided into many fuch feparate Societies, under thefe Laws of their Na- ture, in general ; but retaining ftill the Power of mutually helping, or hurting each other ; we come, in the frefent Book, to inquire into the Nature, and Reafons of thofe Rules, by which their focial Life is extended from Multitude to Mul- titude ; till, by that means, it reaches over all the habitable Earth ; and holds the whole Species to their mutual Du- ties. This Body of Laws the Romans called Jus Feciale y from an Order of Priefts or Heralds, who, as has been already obferved, were therein employed ; and is, by fome Moderns, called The Law of Nations ; by others, The Laws of Jf^ar and Peace : Though it feems moft properly ftyl'd Jus inter GenteSj and which I, therefore, call The Laws of JVational Society and I;nercourfe : having referved their Confideration for the Laft Part of this Work, becaufe they are not only, in part, ■ derived from the Laws of Civil Society itfelf, but arc K alio 66 ELEMENTS of the LAW of Nations. Book V. alfo of a fuperior and much more extenfive Nature : Which Laws we mall examine in the feveral fubfequent PARTS of this BOOK. I. Of National Intercourfe, or Society, and the Law of Nations, in genera/. II. Of the Laws of Society between Nations, in a State of Neutrality, that is, antecedent to exprefs Peace, or direct War, between them. III. Of the Laws or Rules of A5ls preparatory to exprefs peaceful Society between Nations. IV. Of the Laws of private National Society, by exprefs Treaty ; being the Rules of private Intercourfe between their Subjects. V. Of the Laws of publick National Society, by exprefs Treaty ; being the Rules of mutual Action between thofe Bodies themfelves. VI. Of the Laws of certain fecondary CompaBs, for maintaining Peace, and determining Controverfies between Nations, without War. VII. Of War between Nations, as the lajl Remedy for Wrongs ; and its Laws, in general. VIII. Of the Laws of the leaf folemn Sort of War ; ufually called Reprifah. IX. Of the Laws of folemn War, but in its tempered State. X. Of the Laws of folemn War, in its moft unlimited and rigorous State. XI. Of the Laws or P^ules of thofe acceffory Compacts, which ufually accom- pany, fufpend, or clofe the State of War. PARTI. Of National Intercourfe, or Society, and the Law of Nations, in general. In Conformity to the Method hitherto followed, before we enter on a particular Examination of this momentous Body of Laws, we will confider their Origin, Qbjetts^ and Nature, in general, in the following SECTIONS. I. Of the feveral Circumflanccs of human Exiflence ; which make it neceffary for Man- kind, to refolve themfelves into many different civil Societies, and the Faffs by which they are fo confiituted internally. n. of Book V. ELEMENTS or the LAW or Nations. II. Of the external Bounds of fitch States or Nations ji vers, Mountains, isc. or artificial, as , i •, s other- wife marked cut, together with their . Parts % in Marches. III. Of the Rights, and Obligations, neceffarify refulting from j Wrongs thereto, in general. IV. Of the feveral Remedies for fucb Wrongs ; whether by immediate Treaty le: the contending Parties ■, the Interpofition of natural Umpirage, a d Ji dj< ature • or direel holtile Jits, defenfive or offenfive, and Mens l<>ghi thereto, m general. V. Of the Duration, Interpretation, or Changeablenefs of thefe Obligations-, ar the Rules and Laws thereto relating, whether tacit, or expt ■ PART II. Of the Laws of Society between Nations, in a State of Neutrality ; that is, antecedent to exprefs Peace, or direSi War, between them. From the preceding general View of thefe Laws, it is obvious, that x\\tfirjl Ob- ject of our more diftip.ct Inquiry is, concerning that Intercourfe, Avhich generally 'has, and muft happen, between Nations, while they are in a State of Neutrality, antece- dent to exprefs Peace, or diredl Hoftilities : Which will therefore be conlidered in the following o SECTIONS. I. Of the State of Neutrality between Nations, as it arifes, internally, from their fe- parate Government; and, externally, from their natural Boundaries, different Languages, and remote Situations ; its Rights, and Laws, in general. II. Of private Perfons, either Jingle, or in fmall Numbers, entering the Dominions of other States, for mere Curiofity, or Pajfage ; with its Confequences. III. Of private Perfons ottering, in like manner, for Traffick, or Commerce, and its Confequences. IV. Of private Perfons driven by various Occidents into the Territories of other States ; fucb as ftraying, by Land; and Strefs of Weather, or Shipwreck, by Sea ; and its Confequences. V. Of publick Perfons, fuch as Meffengers, Heralds, Embaffadors, &c. fenl wit Permiffton, for various Purpofes, and their Rights. II here of Spies. K 2 VI. Of 68 ELEMENTS of the LAW of Nations. Book V. VI. Of Princes in Per/on entering, or driven by Accident, either folc, witb fmall Re- tinues, or Multitudes, arm d or unarm'' d, into the Dominions of other States ; and their Confequences. VII. Of the Rights of Nations to prohibit fuch Entries in general, or to repel, or pu- nijb them, in various Ways ; without any diftincl antecedent Prohibition. PART III. Of the Laws or Rules of Acts preparatory to express peaceful Society between Nations. By what has been faid in the preceding Part, it feems evident, that many of the Rights laid down by the Roman Lawyers, with refpedb to the Freedom of teas, Shores, Ports, Paffages, and Commerce, were in reality, but Claims, made by the Jlronger, on the weaker, as Occafions for Quarrel and Conqueft ; being in many Inftances, fo contrary to the Nature and Safety of Civil Society, that they are juftly difputable at lead, and therefore dangerous to thofe who practile them : which has introduc'd the Ufe of exprefs Contrails, for thofe Purpofes •, to which ultimate Regulations, however, certain immediate and preparatory Acl:s become neceflary ; the Rules and Laws of which we are now about to confider in the following SECTIONS. I. Of the Neceffity, and Nature of Acls preparatory to peaceful National Society, by exprefs Treaty, in general. II. Of Heralds, Envoys and Embafladors •, their Reception, Rights, and Privileges, when admitted, in general. III. Of Perfons not only impowered to treat of, but to conclude, fuch Contrails ; as CommifTaries, Plenipotentiaries, &c. their Rights and Powers. Where of Pre- liminaries. IV. Of Congrefles, or mutual Meetings, for fuch Purpofes ; whether by Princes in Perfon, or their authorifed Minifters ; with their Forms and Laws. V. Of Contrails between Nations, as the Refult of fuch Negcciations ; their Kinds, Forms, Force, and Interpretation in general. PART IV. Of the Laws of Private National Society, by express Treaty ; being the Rules of Private Inter courfe between their Subjects. Among the National Compacts, which we have above confider'd in general, we will firft examine thofe in particular, which relate to and regulate the private focial Life of the Individuals of different States •, as they are thofe for whofe fake the more publick ones are, principally, form'd j which will be done in the following SECTIONS. Book V. ELEMENTS of the LAW of N. 69 SECTIONS. I. Of Agreements or Treaties of Peace or Amity, in general Terms only ; their Forxi and Effeil, without feparate, and diflinil Stipulations, of any ,^ind. II. Of Contrails for private Commerce ; either at large, or to / Kinds, and Degrees. Where of Tariffs, Culloms, Contraband. &c. III. Of private Contrails between the Subjects of one State, and the Princes cr Cover- nors of another, for fuch-like Purpofes. IV. Of the Laws of Merchants ; as they fubfifi, on general Citflom, wider the Init- iation of fuch Treaties. Where of Fadories, Confuls, &c. PART V. Of the Laws of Pub lick Natitmal Society ', by express Treaty ; being the Rules of mutual Aclion between thofe Bodies themfelves. Besides which private Intercourfe, the public k facial Acts of whole Societies are mod neceffarily the Objects of fuch Agreements, and are indeed the mod confidcr- able Part of, what we may call, the written Law of Nations : Becaufe, like Con- tracts between private Perfons, or the Statute Laws of Civil Society, they give Birth to a great Variety of more important Duties and Obligations, than arifc either from the Nature of Things, or old Ufage : both which are bounded, diverfify'd, or inlarg'd, by them, in various ways : All which will be confidered in the follow- ing SECTIONS. I. Of National Contrails for publick focial Acts ; their Kinds, Force, Interpretation, and Duration, in general. II. Of Treaties for jlipulated mutual Affiflance, defenfive, or offenfive ; to a limited Degree, or with their whole Force ; their Kinds, Force and Laws. IIJ. Of Treaties of Subfidy, on various Conditions ; with their Nature and Ijiws. IV. Of Contrails of Loan j with their Nature and Lews. Where of National Pledges. V. Of National Contrails, for the Transfer of Property, or Dominion ; analogous to Conveyances between private Men ; their Nature and Laws. VI. Of National Contrails for permanent Union in fame of, or all, the Fur: Civil Government ; their Nature and Laws. PART \ 1 70 ELEMENTS of the LAW of Nations. Book V. PART VI. Of the Laws of certain Secondary Compacts for maintaining Peace, and determining Controversies, between Nations, without War ; BEING The Rules of National Judicature. Nor are all the tacit Rules of natural Reafon, or the exprefs Stipulations, which we have hitherto confidered, diffident to hold different Nations to their mutual Du- ties : For, as, in Civil Society, Laws are an uncertain or a dead Letter, without the Interpofition ofathe judicial Magiflrate, much more do they become fo, in the Cafe of whole Nations ; which renders a Refort to fome indifferent Interpreter, or Judge, frequently, neceffary between them. But here, 'tis alfo evident, that the mere Capacity of difcerning what is Right, and the Will to determine accordingly, are not the only Requifites to the Judges, in fuch Cafes : For, as the Strength of Nations, too frequently, emboldens them to do Wrong, fo, the Sentences of weak Judges would have but little Weight ; which, in the Cafe of National Difputes, has introdue'd various kinds of References, Appeals, &c. to whole Nations, or their prime Magijlrates, in order to adjuft them, without the lad Refort to Force. The feveral Kinds and Rules of which will be confidered in the following D SECTIONS. I. Of National Judicature, or Judgment between Nations ; its Natures, Kinds, and Laws, in general. ■II. Of Mediation between Nations, and the Right of indifferent States to interpofe, in fuch Difputes, voluntarily or unfought ; with its Reafons and Laws. III. Of Umpirage between Nations, by exprefs Contrail on both Sides - 3 its Nature and Laws. IV. Of fole, or mutual Stipulations, for the Guarantying, or Guardianfhip of particu- lar 'Treaties, or Peace, in general ; their Nature and Laws. V. Of the extenfive Scheme of Henry the IVth of France, for erecting a National Judicatory, or Tribunal, for all Europe. PART Book V. ELEMENTS of the LAW of Natio 71 PART VII. Of War between Nations, as the Lift Remedy for Wrongs ; and its LAWS, in general. But notwithstanding all this Thread of Caution?, for fettling the Rights of i rent Societies, or holding them to their mutual Duties s the Folly, Pri 01 Ambi- tion of particular Rulers, or theMadnefs of Multitudes, Ion,. 'peri te with Want, and fometimes drunk with Luxury, makes the laft Refort, to juibliek National Force, too f/equently neceffary ; for the repelling , of prefent; the Redrefs, ol paft ; or the Prevention, of future Injuries : Which will be coniidcred, in general, in th SECTIONS. I. 0/ //->£ Neceflity and Legality of War, according to the JeveralGrcumftances that jujlify it. Where of that difficult f^uejlion, concerning tic Prevention of tie too great Growth of National Power, by Force. II. Of the Perfons, or States, that may ufe this Means of Redrefs ; it Icing the diffe- rent Degrees of Sovereignty, or Subjection, that give, or takeaway, the Right to it. Which Queftion is to be underjlood of offenfive War only : Ftn , to the imme- diate repelling of inftant foreign Force, the privatejl Perfons have an abfolute Right ; tho' not to the Purfuit of it, by way of Ree , hen oice re/ ell d. III. Of the Means of War, or the various Sorts of lief Hi ty, he i r, and In ■. mints lawful. Where of Stratagems and Deceit, not contrary to particular Com- pact. Here, however, tve are not writing Tatties, or the Art ol War, moral Rules of v.fmgthat Art. IV. Of the Effects or Confequences of Vitlory, or being vanquijh'd, on the remt Perfons and Things : As to the Change cf Prop uijition of So\ ,u Power of Life and Death, &c. Where concerning the Exaction of Damages. V. Of Acts which put an End to J}\;>; by Treaty, or Surrender, &c. in gent PART VIII. Of the Laws of the ieajl fole?nn kind oi War, call'd Reprisals. After this o-eneral View of a Species oi Coercion, which is lb inconvenient to, and brings fo much Milery, even on thole, who, themielves, inflict it ; the W ill Good will always think, that the fimplejl and moft humane Method ol Redrefs, ought firft to be attempted ; and therefore firft confidered, in particular ; which will be done in the following SECTIONS. j2 ELEMENTS of the LAW of Nations. Book V. SECTIONS. I. Of the Nature of Reprifals, their Kinds, and Laws , in general. II. Of the fever al Offences or Wrongs, which give Right to Reprifals, and for which they may be adequate Remedies. III. Of the feveral Kinds and Manners of making Reprifals ; Whether on the guilty Perfons, where they can be found, only ; or on the Guilty and Innocent indiffe- rently. IV. Of the Effect of fuch Reprifals, in transferring of Property, giving Power of Life and Death, &c. P A R T IX. Of the Laws of solemn War, but in its temper'd State. But thofe gentler Methods failing, or being, from the Nature of the Offence, impraclicable with Succefs, the Injur'd are, fometimes, compell'd to let National Re- fentment loofe in the jolemnejl manner, on a whole People : In which Situation of Things, however, Humanity, and the juft Policy, of not making Offenders defpe- rate, have indue'd the more civiliz'd Nations, to hold even this Harpye, herfelf, with- in fome Bounds ; which we now come to confider, in the fubfequent SECTIONS. I. Of folemn War in its temper'd State, in general. II. Of the Rules which fuch Temperature gives, to hoftile Adls and Instruments. III. Of the Diftinclion it makes, between the Arm'd and Unarm'd. IV. Of the Reflraint it lays, as to the Acquifition of private Property •, where of Forage, Quartering at Difcretion, and Contributions for Subjtftence. V. Of the Moderation it prefcribes, as to the Acquifition of publick Dominion, or Em- pire, and Power of Life and Death, &c. Where of Prifoners of War. VI. Of the Rules it injoins, -as to Reparation of Damages, and Repayment of Ex- pences. VII. Of the Regard fuch a temper'd State of War pays to neuter Nations, in the vari- ous ways in which the War may affeel them. PART X. Of the Laws of folemn War, in its mojl unlimited State. B u t, tho' Reafon, and the Nature of Things, prefcribe thefe Limits to De- valuation, and Deftru&ion, themfelves; yet, the Non-obfervance of fuch juft Rules Book V. ELEMENTS of the LAW of NaI ■■ Rules hath, fometimes, added Defperathn to Rage ; and brought on, utmoft of human Miferies, War in itb molt unlimited Circumftances j which all the Mifcbief 'that is abfolutelv in the Power of the cpnten the Contention, or when one of them remains Vittor : And wh. , of Rules, the Reader mu ft nu | lcr eX p,& * H&ory r/ Inquiry into their Reafonablenefs, and Legality, in the followii SECTIONS. I. Of thefe extreme!* Ails of Hoftility, and -whether any, and :■ -make them confiftcnt with Humanity? in general: Where of Rcprilals in V. for irregular Ails of Hoftility. II. Of the Ufe of all imaginable Modes and Circumftances of ., ■ . u Poifon- ing of Weapons and Waters, &c. III. Of Pillaging and Devaftations, not for Sub/iftence, but Putiijbment, or I vention, &c. IV. Of putting Multitudes to the Sword, facking and burning of Towns, &c. on being taken by Storm, after what is called unrcafomble Refiftance. Where of Sum- mons, andfxt Days for Surrenders. V. Of holding Prifoners in direct and perpetual Slavery. VI. Of the intire Subverfion of private Property, in things moveable and im- moveable. VII. Of affuming Empire on unequal Terms of Subjeilicn ; cr, leading the Body of a People captive. VIII. Of the Deletion of whole Nations, or large Parts of them, and Re-peopling. PART XL Of the Laws, or Rules ', of thofe accessory Compacts, which accompany ', fufpe7td^ or c/ofe, the State of War. But during the Progrefs of thefe Scenes of Horror, Ncceflity makes Men tame enough, to look for the Means of moderating, or clofng them ; which has inrroc. .and made the following Compacts conftant Companions, or Followers, of Military Fury ; Of which we (hall treat in thefe SECTIONS. I. Of Parlies, for various Purpofes ; and their Rules. II. Of PafTes and Safeguards, their Kinds and Rules. III. Of Cefiations of Arms, and Truces, for various Purpofes, their Nature and Rules. L IV. Of 74 ELEMENTS of the LAW of Nations. Book V. IV. Of Treaties, for Exchange of Prifoners, Burying of Dead, &c. with their Rules. V. Of Surrenders on Terms, or at Difcretion, either immediate, or future ; as the Non-arrival of Relief at a Day certain, &c. their Kinds and Lazvs. VI. 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Directions how to feed and preferve them in all Seafons of the Year, and a Courfe of real Expe- riments, performed by cutting thefe Creatures ia every way that can eafily be contrived, {hewing the daily Progrefs of each Part towards becoming a Polype. The whole explained every where by a great Number o{ proper Figures, and inter- tnixt throughout with Variety of Obfervations and Experiments. By the Same. In one Volume Octavo. Price bound 4s. -• — l y*^v *a liRARYQ 1 1<"^ I h ( .fifjv ^^v . ^ 0^ N ^AlNflWV - ^ ^ UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. NO PHONi: RENEWALS SEP 2 3 1987 . 1 Wv^cUWP HWV EUfc. ^OK ^ , — n v c? VlOSANC ^l-UBRARYfl? ^WK-UN 5 ' _ K >— > W/njlTVI.jrv^ V'rjnnuv.rm^' Tv7Mnuwn.:iUV N> ^tllBRARi M1IBW w/runvi.jn^ ^ttn-inv c^y STA<