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 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL 01 I '-.'. 
 LIBRARY

 
 LEGAL OUTLINES, 
 
 BEIN(. 'Hi: i ■: in [HE FIRST TITLE Ol \ COURSE OF LECTURES NOW 
 
 DELIVERING IN THE DNIVERSITV OF MARYLAND. 
 
 I) A V ID II O F FM A N 
 
 JUH. (TIM. 1)'" i (SOTTING Rh 
 
 U discant, amenl meminissc periti. 
 
 JOHN MILLER, HENRI ETTA STREET, 
 
 (dV 1. NT G A R DE N. 
 
 BALTIMOKK: 
 
 .1 OS E P II X E \ L. 
 1836.
 
 T
 
 C L .n T ENTS. 
 
 
 
 ^ Page. 
 
 I Preface ; 
 
 ° Address to British Students Xll 
 
 t 
 
 LECTURE I. 
 
 I Of the Origin and Nature of man, his Physical and Moral 
 
 Constitution 9 
 
 LECTURE II. 
 
 Of man m a Slate of Nature 72 
 
 LECTURE III. 
 Of the Rights of Nature 102 
 
 LECTURE IV. 
 
 Of the Origin of Primary Society, and of Civil Govern- 
 
 ment 
 
 l 1 1 
 
 LECTURE v. 
 
 Of the Rights of Civil Government 178 
 
 LECTI RE VI. 
 
 Of thi Effects ol Society ami Jurisdiction on the Natural 
 Rights of Man olo 
 
 lecture vu. 
 Of Law, and its General Properties 249 
 
 LEc II 1.1 | 111. 
 
 Of the Laws of Nature applied to Man individually, either 
 in a Stale of Nature, or of Primary Socii u and Civil 
 Government 297 
 
 LE( II RE i\. 
 
 Of Political as distinguished from Civil Law. and of the 
 rarious forms of Government 
 
 LECTURE -X. 
 
 Of the Feudal Law 435 
 
 APPENDIXES. 
 
 1. Syllabus ui the contents of each lecture, 597 
 
 IL List oi leading authorities on iln topics "I each lecture, 009 
 
 I-NOEX, 6JS 
 
 67C848
 
 P R E F ACE 
 
 The volume here offered to the public, and two 
 others by which it will probably be followed, are 
 designed to contain the substance of an extensive 
 course of lectures on law, which the author is deli- 
 vering in the University of Maryland. The present 
 publication embraces only the initiatory title of the 
 course, of which the entire scheme was stated in a 
 Syllabus published in the year 1821, which contains 
 eleven titles It is far from being intended, how- 
 r. to test the indulgence of the public, or add to 
 the redundancy of the press, by a proportionate 
 number of volumes. The work is presented with 
 unaffected diffidence, being dedicated more espe- 
 cially to students, to whom its utility will be more 
 manifest, it is hoped, when the publication of the 
 remaining volumes, should they be called for, shall 
 display the whole design. The work would then 
 contain, it is believed, the only analytical outline 
 which has yet appeared of the entire body of juris- 
 prudence proper to be studied in this country, and 
 may thus prove advantageous in rendering the 
 student's transition to the •Commentaries* less
 
 PREFACE. 
 
 li 
 
 abrupt than usual. Though there are many excel- 
 lent elementary works on the Laws of England, 
 none of them have aimed at presenting a coup (Vccil 
 of the entire science of jurisprudence. The object 
 of these 'Outlines' when completed, is to furnish 
 the law-student with a concise and orderly view 
 of every branch of that vast system, the details of 
 which are to occupy him through life. His future 
 studies may perhaps be facilitated by a survey, as 
 it were, of the geography of a vast region; with 
 its numerous boundaries, divisions and sub-divi- 
 sions; its minute and devious paths, in which it maj 
 be consoling to know that if he wanders long, il 
 is not without method and aim. 
 
 In the lectures now given of this preliminary 
 title, the student will find the elements of Nati 
 ral, Political and Feudal Jurisprudence. 
 These may serve as a basis to his future researches, 
 not only into the laws and institutions of England 
 and of this country, but in that great code which re- 
 gulates the communion of nations; as well as in that 
 vast body of 'written reason,' the Roman Civil Law . 
 together with the various systems of continental 
 jurisprudence erected, in part, on its foundations. 
 The topics have been treated in a method not so 
 strictly concise and analytical as will be necessary 
 in discussing those which are embraced in the con- 
 templated volumes. This difference in the mode 
 of treating the two great divisions of the work, has 
 been preferred, because the important and extensive
 
 PREFACE. Hi 
 
 learning of ethical, of political and of feudal law is 
 too apt to be neglected by the student, who scarcely 
 thinks he has commenced his legal studies till he 
 begins the perusal of his Blackstone and Coke, his 
 Hargrave and Preston — authors indeed, eminently 
 distinguished in the peculiar municipal jurispru- 
 dence of England, but who, with many others on 
 like subjects, are by no means sufficient to make 
 a f ripe scholar' in the law. These subjects have 
 been treated by a large class of writers, many of 
 them entitled, not merely to his passing respect, 
 but to his serious study. 
 
 The second and third volumes are designed to 
 treat of the elements of the Municipal law, in its 
 most extended sense; including various titles of 
 British, American and Roman law, which have 
 been scarcely alluded to by the accomplished 
 commentator on the laws of England ; together 
 with several auxiliary subjects. To embrace the 
 analysis of a subject so extensive within the lim- 
 its we have mentioned, will necessarily require 
 much condensation, and a manner considerably 
 different, as before remarked, from that which is 
 adopted in the present volume. In an analysis of 
 this kind nothing is to be omitted, yet nothing, 
 however important and difficult, can be very fully 
 explained. The classification must be comprehen- 
 sive, natural and clear; the definitions ample, but 
 cautious; the examples frequent and illustrative; so 
 that the whole may present a philosophical contour 
 of the entire system.
 
 j v PREFACE. 
 
 Should the author's desire to publish the entire 
 scheme be accomplished, the whole work would 
 then embrace thirteen titles, viz : the Outlines of 
 
 I. Natural, Political, and Feudal Jurisprudence. 
 
 II. The Law of Landed Property, technically 
 called the law of Real Rights and Real Reme- 
 dies. 
 
 III. The law of Persons and of Personal Pro- 
 perty, technically called the law of Personal 
 Rights and Personal Remedies. 
 
 IV. The Law of Equity, as it is distinguished 
 from strict Lav/ on the one hand, and mere Ethics 
 on the other. 
 
 V. The Law of Mercantile Transactions, tech- 
 nically called the Lex Mercatoria. 
 
 VI. The Law of Crimes and Punishmets. 
 
 VII. The Roman Civil Law, by eminence 
 called The Civil Law. 
 
 VIII. The Law of Nations, sometimes called 
 International Law. 
 
 IX. The Maritime and Admiralty Law. 
 
 X. The Constitution and Laws of the 
 United States. 
 
 XI. Legal Bibliography and Biography. 
 
 XII. Forensic Eloquence and Oratory. 
 
 XIII. Professional Deportment. 
 
 The publication of the present title separately 
 from the others, has been induced by the considera- 
 tion that most of its topics arc a little too metaphy- 
 sical to make their due impression through mere
 
 PREFACE. 
 
 oral delivery; besides which, the remaining twelve 
 titles are gradually becoming sufficiently extensive 
 to occupy all the time which can at present be 
 allotted in this way to the duties of the chair; while 
 the analysis or substance of the entire course, if 
 published, would serve the student as an accurate 
 note-book of all the lectures embraced within this 
 extensive design of the professorship. 
 
 The present title, and the others, it is supposed, 
 might be placed in the hands of students previously 
 to their reading the 'Commentaries' of Mr. Justice 
 Blackstone, or the recent very able 'Commentaries 
 on American Law,' by Chancellor Kent. 
 
 In addition to the general table of contents, the 
 student will find at the end a syllabus of the con- 
 tents, and a list of the leading books and authorities 
 which deserve to be read by him.
 
 TO 
 
 BRITISH STUDENTS OF LAW. 
 
 In submitting to you this volume, the author is not 
 aware that any of its pages are less appropriately 
 addressed to British than to American students. 
 The remark equally applies to his entire scheme, 
 should it be completed. The differences in the 
 systems of American and British law, especially in 
 the civil and criminal branches, are gradually dis- 
 appearing, — and when compared with the whole, 
 these differences were at no time very extensive or 
 material. The sources which supply our law are 
 nearly the same as your own — no volume of British 
 law remains unknown, longer than for the winds to 
 bring it to our shores — the decisions of your courts 
 are as familiarly relied on in our tribunals, as in 
 yours — your statutes for the larger part, are common 
 to us both — your elementary writers, also, are in the 
 hands of all our students — and we are aware of no 
 material difference in the course of study pursued 
 in the two countries, except that the attention of 
 our students has, perhaps, been more generally 
 directed to the Roman and Continental law, and 
 indeed, to all that is embraced under the head of
 
 Vlll 
 
 universal jurisprudence, than seems to be the case 
 in England. This arises from the simple fact that 
 your laws have long since been formed and prac- 
 tised — ours have been gradually adopted, and fash- 
 ioned by our legislatures and courts, as occasion 
 required — c the world is all before us where to 
 choose' — and, moreover, none of our laws arc so 
 deeply radicated by time, as to claim the veneration 
 due to antiquity, or the indulgence accorded to the 
 natural prejudices arising from long use. 
 
 With the best intentions, it has been the endea- 
 vour of the author, on various occasions, to pre- 
 sent to the American law student, the science in 
 its most attractive garb — to smooth for him the paths 
 he must pursue, would he attain the highest rank 
 in his profession — and finally, to point out, not only 
 the most enlarged and philosophical sources, but such 
 as are strictly practical, and of daily occurrence in 
 his professional career. Some of the views alluded 
 to (in connection with the present volume) are now 
 presented for the first time to the notice of the 
 British Law student, — and in so doing, we trust it is 
 with no unbecoming confidence, as Americans for 
 several centuries have mainly relied on British law 
 works, and it is the humble wish of the author, more 
 particularly in his 'Course of Legal Study,' to 
 invite the attention of British students, and lawyers, 
 and statesmen, to the progress of legal science in 
 our country, and to its extensive legal bibliogra- 
 phy — neither of which has hitherto attracted much
 
 IX 
 
 notice on your side of the Atlantic, though it may, 
 with perfect truth be declared; that in the Lex 
 Mercatoria, generally, in Admirality and Maritime 
 law, in the great branch of Equity, in the numerous 
 lights dawn from the Roman and Continental law — 
 as also in various branches of Criminal Jurispru- 
 dence, and even of the strict Common law, there is 
 a body of American judicial decision and legislation, 
 and of learned, philosophical, and practical law 
 treatises, that may well compare with any known to 
 the legal bibliography of your country. This fact, 
 when more generally known, cannot fail to excite 
 a just and proper interest in your country — for we 
 are almost wholly from the same British stock — 
 our language, institutions, laws, religion, are nearly 
 identical — and in the lapse of one century more, 
 our population, diffusing your laws and language, 
 will, in all probability, exceed one hundred and fifty 
 million of souls ! How natural, and beneficial and 
 politic, then, is a reciprocal good feeling, the sure 
 result of a reciprocal acquaintance with each others' 
 laws, literature, science, institutions, Sic. Nor should 
 the day of small beginnings be unworthy of your 
 notice — that day, however, has nearly passed from 
 us, — American literature, science, law, medicine, — 
 the mechanic arts — the utilities of life — the luxuries 
 and refinements of life, are advancing with a 
 rapidity but little known or believed in the old 
 world; and never fully appreciated, but by those 
 of our country who have carefully and personally
 
 compared the state of things in the two hemis- 
 pheres. 
 
 May your great, and glorious, and delightful 
 country continue in its career of usefulness and 
 prosperity. May your fields ever be green — your 
 garners redundant — your manufactures and com- 
 merce be spread over the world — your charities 
 continue their heaven-born influences — your proud 
 cathedrals swell the loud anthem — and your lite- 
 rature, science, laws, and institutions be mainly fol- 
 lowed, as the best exemplars of all that exalts a 
 nation — of all that renders man individually blest. 
 These are the earnest wishes of, 
 
 Your obedient servant, 
 
 DAVID HOFFMAN. 
 
 Baltimore, May, 1S3G.
 
 LEGAL OUTLINES. 
 
 LECTURE I. 
 
 OF THE ORIGIN AND NATURE OF MAN; HIS PHYSIC XL AND 
 MORAL CONSTITUTION. 
 
 Nalura enim juris cxplicanda est nobis, eaque an hominis repetcnda 
 natura— Cic. de Leg. Lib. 1. c. 5. 
 
 (i.)Of the proprie- Before we enter on the consideration 
 
 ty of treatingof Man's of ^ sc i enC e which unfolds the rights 
 nature, prior to the ° 
 
 consideration of the and duties of man, we deem it proper to 
 
 science which un- inst ; tute somc i nqu i ry i nto his moral and 
 
 folds his rights and » J 
 
 duties. physical constitution; in what respects 
 
 he agrees with, or differs from other animals; the unity of 
 his nature; and the relations in which he stands; and from 
 these to deduce his duties, and his rights; since it is impos- 
 sible to understand these correctly, unless we analyse the 
 character of that being by whom they are to be discharged, 
 and to whom they are due. 
 
 Independently of all revelation, or divine positive com- 
 mand, all the laws of nature, (which are the fountain and 
 foundation of all other laws,) are only rules of conduct adapt- 
 ed to promote the felicity of Man. We must, therefore, 
 ascertain his nature; the pursuits most proper to that na- 
 ture; the various kinds of happiness at which he aims; how 
 far that happiness is connected with the happiness of others; 
 to what degree (under this view) he must control his indivi- 
 dual propensities, in order not to interfere with the felicity 
 2
 
 1 OF THE ORIGIN AND [Ltd. 1 
 
 of others, and thus eventually with his own; in what n 
 tion he stands to the author of his existence; and then, 
 from all these relations deduce his obligations to God, to 
 himself, and to mankind. 
 
 Were any warrant for this opinion needed, except that 
 which is found in every thinking mind, and feeling heart, 
 we have it abundantly furnished in the writings, heathen 
 and christian, of ancient and modern philosophers. They 
 all concur in the sentiment, that salutary laws must have 
 special regard, not only to the general character of man as 
 a rational and feeling being, but also to the various modifi- 
 cations and inflexions of his character arising from the gra- 
 dual operation of moral and physical causes. Hence, Cicero, 
 speaking of natural jurisprudence, says, 'we must search 
 for the nature of law in the nature of man." 'Natura enim 
 juris explicanda est nobis, eaque ab homii. enda 
 
 natura.' And we think the enlightened jurist of c 
 country will agree with that distinguished Roman, that the 
 code best adapted to any particular nation or commui 
 can only be known by a minute inspection into the general 
 and the adventitious character of man. Natural jurispru- 
 dence is fixed and immutable in her decrees} we ascertain 
 her precepts by reference to the intrinsick character of man 
 in all ages, and in ail countries. Civil jurisprudence, on the 
 other hand, is variable in some of its maxims and p< 
 as it derives many of its principles from what has been e\- 
 trinsically added to the character of man. No one, how- 
 ever, can hope to study cither system to advantage, who 
 neglects the study of man, both in his moral 
 constitution. The science of his moral duties is founded 
 in the knowledge of bis moral nature, and tl e law u 
 regulates his civil actions, should hav I to his p] 
 
 cal condition, as far as it may aflfect his moral constitution. 
 Psychology therefore, together with speculative and prac- 
 tical ethics, added to the physiology o( man, should I
 
 I.tct. 1 ] na ri r. i: oy man. 1 1 
 
 a main branch of every jurist's study. The infinitely 
 changing condition of our species obtains, nevertheless, 
 only in those circumstances which give the colouring to 
 man's character: that which constitutes the essence, genius, 
 or even the substantial form of his moral character, is liable 
 to no change. Hence the great code of natural law may 
 be studied with equal advantage in all ages, and in all 
 countries; on this the municipal laws of every nation must 
 repose; and though climate, condition, physical education, 
 and moral habits, demand an adaptation of the laws to the 
 character formed by these causes, it must be always borne 
 in mind, that not one of even the most trivial of the pre- 
 cepts of natural law can be abrogated. There is not a natu- 
 ral law for the savage, and a natural law for civilized man; 
 what is honest, just, benevolent in the one, is equally so in 
 the other. 'Honeste vivere, alterum non laedere, suum 
 cuique tribuere,' are precepts of universal and perpetual 
 obligation. 'Nee erit alia lex Romae, alia Athenis, alia 
 nunc, alia posthac; sed et omnes gentes, et omni tempore, 
 una lex et sempiterna et immortalis continebit.'* Of this 
 law we may truly say, Mier voice is the harmony of the 
 world;' it is the same at Athens as at Rome; the same in 
 Britain as in this our happy land; — the same to-day, as in 
 the beginning of time. 'Nee vero aut per senatum, aut 
 per populum solvi hac lege possumus;' and with Hesiod 
 of old we may declare, 
 
 'This law did Jove for Human Race ordain: 
 The Beasts, the Fishes, and the Feather'd train 
 He left to mutual spoil, and mutual prey, 
 But Justice gave to man.' 
 
 It is true indeed, that the duties and rights of man, as de- 
 fined by this law, may be added to in a state of society; 
 and those things which are merely permitted in a state of 
 nature, may be modified or abrogated by positive law: but 
 
 • Cicrro De Republica Lact, lib. 6, c. 8,
 
 12 OF THE ORIGIN AND [Lect I 
 
 no human laws, or condition of society, can lessen the ob- 
 ligation of what is commanded or prohibited by this code, 
 engraven on the hearts and minds of men by the finger of 
 God. This is all, we presume, that can be meant by Lord 
 Bacon, who, with as much truth as elegance, says, 'There 
 are in nature certain fountains of justice whence all civil 
 laws are derived but as stream; and like as waters do take 
 tinctures and tastes from the soils through which they run, 
 so do civil laws vary according to the regions and go- 
 vernments where they are planted, though they proceed 
 from the same fountains.'* 
 
 A science of such vast extent as that of natural jurispru- 
 dence, should form a distinct and, for the reason I have 
 stated, a preliminary subject of your inquiries. 
 
 In a course of lectures as comprehensive as that in which 
 we are engaged, this subject necessarily forms a substantive 
 branch of inquiry. Still, however, little more can be ex- 
 pected in a preparatory title, (which is really so extensive 
 in itself,) than that I should present to you, in a few lec- 
 tures, the skiagram, or leading outlines of this very inter- 
 esting portion of your studies; and that I should furnish 
 you with the means of enlarging your knowledge therein, 
 and urge you to employ them with method, and pcrsc wr- 
 ing diligence. When I say that this is an introductory 
 study, it is with this qualification, — that though the philo- 
 sophy or elements of this extensive subject should be pre- 
 viously acquired, yet that every one who aims at a thorough 
 knowledge of law, must make natural jurisprudence his 
 study through life, during which he will have increasing 
 proofs of the intimate connexion between just notions of 
 ethicks, and the enactment of salutary laws. 
 
 In most of the following lectures, therefore, of the First 
 Title of my course, I shall endeavour to condense the lead- 
 ing principles of natural law, so as to place before you a 
 
 -Bac. Work-, vol 1. 100.
 
 Lect. I.] NATURE OF MAN. 13 
 
 eoup d'uil of a vast science, whose minute learning it will 
 be your duty, as well as pleasing interest, to study long 
 after your legal noviciate. 
 
 In the present lecture I shall confine myself to some ob- 
 servations on the nature of man, his moral and physical 
 constitution, and shew from these how essential to his feli- 
 city is the just use of his peculiar faculties, with regard to 
 God, the maker of the world; to himself, as a member of 
 this great system; and to his associates in the various busi- 
 ness and enjoyments of life. 
 
 Wide as is the system of duties, and numerous as are all 
 the constitutions of society, whether natural and implied, 
 or artificial and positive, you will find them, we apprehend, 
 to flow from some few broad, general and intelligible prin- 
 ciples, apprehensible to all, and disputable by none, and 
 which have the strictest of that certainty which is called 
 moral, in contradistinction to mathematical. 
 
 Man, we have said, should be considered by the philoso- 
 phical legislator and jurist, in his animal and moral nature, 
 these being the only two divisions of his peculiar inclina- 
 tions and capacities. To the first appertains his desire of 
 food, of vesture, and of shelter; of the concourse of the 
 sexes, and of the preservation of health and of life. To the 
 second belong his moral sympathies, and his intellectual 
 capacities; the first including his affection for his offspring, 
 for his parents, his relatives, and for mankind at large; and 
 the second his reasoning faculties, his pursuit of science and 
 knowledge, and his taste for the arts. The sympathetic 
 affections he possesses in common with inferior animals, 
 being distinguished from, and elevated above them, by his 
 endowment with those qualities by which he acquires know- 
 ledge, and distinguishes between right and wrong. Man, 
 consequent])', becomes subject to a body of rules of which 
 they cannot be the subject, because they are insensible of
 
 14 01 Tilt OHIGIN A.ND I. ret. I 
 
 the qualities and affections which these rules are designed 
 to prescribe, encourage or control. 
 
 (2 ) idea of some In order fully to comprehend the con- 
 Philosophers as to the stItution of any body it i s essential that 
 triple nature of the J J 
 
 soul, &c. we view it in all its integral parts. Man 
 
 is evidently a being composed of a growing, vital, and 
 sentient substance, denominated body, and of a subtile or 
 immaterial something, called soul, which is of itself en- 
 dued with various powers and affections, that impart to the 
 corporeal parts, and to the being in his integrity, all those 
 characteristicks which form man, and distinguish him from 
 every other being. It was the opinion of some ancient 
 philosophers, that the visible and material part of man is 
 rather a secretion, or the result of certain operations, of the 
 soul, than a distinct and independent substance. They con- 
 sidered the soul itself to be composed of three distinct prin- 
 ciples, viz. rational, sensitive and vegetative, and that each 
 was destined to perform distinct offices in the human econ- 
 omy, as they were the sources either of reason, of life, or 
 of nutrition. Others varied this theory a little, by main- 
 taining that man is a being possessed, not merely of a soul 
 operating by three principles, but of three distinct souls, 
 viz. rational, sensitive and vegetable; and that as the first 
 and second of these are the sources of life and intellectual- 
 ity, so is the third the fountain of nutrition or growth. The 
 celebrated Linnaeus, more recently, in his well known apho- 
 rism, seems to consider man, in common with all other an- 
 imals, as endued with three distinct principles, one or the 
 other of which is common to the other two kingdoms of 
 nature. This philosopher, eager in the search of criterions 
 by which all created entities should be classed, says 'Mi* 
 neralia crescunt, vegetabilia crescunt et vivunt, animalia 
 creseunt, vivunt et sentiunt,' or, in other words, that mi- 
 nerals grow, vegetables grow and live, animals grow, live 
 and feel. It is not for me to criticise the philosophy of so
 
 Lect. 1.) xAriJRi: of max. 1.5 
 
 great a master as Linnaeus, or to find fault, on such an occa- 
 sion as the present, with a favourite tenet of one whose in- 
 tellectual vision scarce knew a limit, whose verbal accuracy 
 was remarkable, and whose very errors, amidst the halo 
 which surrounds his name, assume to themselves almost the 
 body and form of conceded truths. It is obvious, however, 
 that this aphorism is rather euphonic than sound; that it is 
 neither philosophically correct, nor sufficiently comprehen- 
 sive, if true, for its contemplated object. If we render 
 crescunt by the word grow, it cannot be applied to mine- 
 rals, for it is only organized and living bodies which are ca- 
 pable of growth; minerals may increase their -"olume by 
 accretion, concretion, crystallization, &c. &c, but it cannot 
 be predicated of them that they grow. So, if we render the 
 word crescunt by increase, it would be improper to say 
 that vegetables and animals increase, since increase is essen- 
 tially different from growth, this latter being always effect- 
 ed by nutrition, which incorporates into the fibre, and as- 
 similates to itself, matter taken ab extra. The enlargement 
 of the volume by growth, is peculiar to bodies possessed of 
 an internal adjustment 01 organization, and endued with cer- 
 tain degrees of vitality; whereas increase takes place without 
 any such organization, assimilation or vitality: philosophi- 
 cally speaking, therefore, this word should not be applied 
 either to animals or vegetables.* But this aphorism is still 
 more defective in regard to man, for though man, in his 
 mere animal nature, grows, lives and feels, — yet, in his 
 integrity, he is something more than an animal, being pos- 
 sessed of principles wholly distinct from, and independent 
 of those to which we refer the growth, vitality and sen- 
 sation of the rest of animated nature. Man, in common 
 with every other animal, is possessed of an innate active 
 power, which never ceases to operate until death, and by 
 which sensation, life, growth, motion, and every animal 
 power are sustained. This vis actuosa is as distinct and
 
 1 5 OF THE ORIGIN AND [Lect I. 
 
 perpetual in its operation in the most degraded and brutal- 
 ized man, as in the most enlightened of his species; and as 
 perfect, too, in beings the lowest in the scale of intellectu- 
 ality and animality, as in the highest. By this vis vitulis 
 is it that animals live, are animated, nourished, moved. It 
 is, in part, by this power that they sleep, wake, feel, select, 
 refuse, and perform various other animal functions; yet no 
 one can prove, though it has been so asserted, that these flow 
 from mind or soul. Hence is it that it becomes so essen- 
 tial to ascertain correctly the criterions which really distin- 
 guish mind from matter; animal life from vegetable life; 
 animal instinct from vegetable instinct; animal and vegeta- 
 ble life from intellectual life; instinct from sensation; and 
 sensation from perception or intelligence. False theories 
 and crude notions in physicks, generate false theories in 
 morals, and consequently in jurisprudence; and this very 
 neglect, or want of properly distinguishing between beings 
 organized and unorganized, animal and vegetable, intelli- 
 gent and unintelligent, has proved a fruitful source of mis- 
 chievous error. To this cause is it that we are to refer the 
 singular fact, that even distinguished names have been ar- 
 rayed on the side of that philosophy which degrades our 
 species to the level of the brute animal. We should re- 
 member, however, with Cicero, that 'nihil tarn absurdum 
 quod non dictum sit ab aliquo philosophorum;' and hence 
 we should learn to be jealous of the influence of mere au- 
 thority; and, in matters oi vital interest at least, to refuse 
 to philosophy what is either not understood, or is condemn- 
 ed by common sense. 
 
 We should, perhaps, be travelling out of the province of 
 this chair, were we to enter into a minute inquiry into the 
 topicks to which we have alluded. They should be well 
 understood by the inquisitive student; but they are not to 
 be sought in the pages of even philosophical jurisprudents; 
 they must be studied in the numerous volumes which treat
 
 L*ct. I.] NAITRE OF MAN. 17 
 
 of physicks and mctaphysicks, and particularly in those on 
 human, animal and vegetable physiology. A very few 
 words from us, therefore, on these interesting doctrines, 
 will suffice for our present purpose, which is merely to es- 
 tablish the fact, that all sound legislation, and interpretation 
 of laws, should be based on an accurate acquaintance with 
 man's physical, intellectual and moral character. 
 
 We propose now to take a brief survey of most of the 
 criterions which distinguish matter from mind; the princi- 
 ple of animal life, from the principle of the mind or soul; 
 the features which distinguish the animal, vegetable and 
 mineral creation from each other: and, finally, those which 
 characterize man, and separate him from all other animated 
 beings. 
 
 We are aware that classification is often dangerous, and 
 that the desire of making it either very comprehensive, or 
 the reverse, often betrays the author into serious errors. 
 We are likewise conscious that these methodical arrange- 
 ments not only savour of theory, but often originate in vain 
 and mistaken views. Classification, however, is sometimes 
 useful and correct. All that we now aim at, is to assist the 
 students' future inquiries by presenting to him an outline 
 which, at a proper season, he may fill up by his own re- 
 searches. 
 
 We presume, then, that all entities, or things existing, 
 of which man has any knowledge, may be arranged in the 
 following manner: 
 
 1. Mind. 
 
 2. Matter. 
 Matter is either, 
 
 1. Organized. 
 
 2. Unorganized. 
 Unorganized matter has neither 
 
 ' 1. Life, 
 2. Instinct,
 
 IS 
 
 OF THE ORIGIN AND [Lcct. L 
 
 3. Sensation, nor 
 ■4. Intelligence. 
 Organized matter is either 
 
 1. Animals, 
 
 2. Vegetables. 
 Animals are either, 
 
 1. With sensation, 
 
 2. Without sensation. (Doubtful.) 
 Animals with sensation are either, 
 
 1. With intelligence. 
 
 2. Without intelligence. (Doubtful.) 
 Animals with intelligence are 
 
 1. Those with sensation, instinct and perception, or a 
 very limited intelligence; without a rational soul; not moral 
 agents; whose actions are not imputable; who are incapa- 
 ble of society and government; not endowed with speech, 
 though sometimes capable of uttering articulate sounds; and 
 whose souls probably perish with their bodies. This class 
 embraces all animals except man. 
 
 2. Those with sensation, instinct, great intelligence, a 
 rational soul; who are moral agents; whose actions are im- 
 putable; who are endowed with speech; whose souls are 
 incapable of disease, and certainly immortal; and who arc 
 highly fitted for society, government and law. This class 
 embraces no other animal than man. 
 
 Vegetables arc possessed of 
 
 1. Life. 
 
 2. Instinct. 
 Vegetables are not possessed of 
 
 1. Sensation. 
 
 2. Intelligence. 
 
 Having thus briefly stated our views as to the classifica- 
 tion of terrestrial existences, we shall now advert to some 
 of the criterions by which \vc are enabled to distinguish 
 the three great kingdoms of nature.
 
 Lect. I] NATURE OF MAN. 19 
 
 First. Mind, being neither tangible nor visible, can only 
 be known to us as it is manifested by certain operations and 
 effects. It makes use of the animal organs and functions 
 of the body in which it resides, in order to make itself cog- 
 nizable. Our knowledge of mind, however, is principally 
 derived to us through the medium of reflection and rea- 
 son, either as to the action of our own mind, or that of 
 others. By some philosophers the mind has been supposed 
 to be wholly immaterial, and certainly to survive the body. 
 By others it is contended that it is grossly material; that it 
 has no separate existence from the body; and that it is, in 
 fact, the mere result of the peculiar organization of the body, 
 and consequently perishes with it. There is, however, a 
 third class, who urge that it is a distinct and independent 
 material entity, but composed of such tenuous, and ex- 
 tremely sublimated matter as will never perish, viz: of 
 those primogenial particles which by some philosophers are 
 supposed to have existed from all eternity. This class of 
 theorists disclaim the name of materialists, and, we think, 
 correctly, as few, if any of the pernicious errors of the 
 other sect of materialists, seem to flow from their doctrine. 
 
 Secondly. Let us now advert to Matter. If it be un- 
 organized, it is negatively characterized by the want of life, 
 instinct, sensation and intelligence. It is also affirmative- 
 ly designated by a fortuitous formal origin; by increase in 
 volume from accretion, crystallization, &c. and by dissolu- 
 tion through the agency of chemical and mechanical force. 
 If the matter, on the other hand, be organized, it is then 
 found to possess an origin by generation; a vital or living 
 principle; an enlargement of its parts by growth or nutri- 
 tion; and its dissolution is by death. These properties are 
 common to all organized matter, whether vegetable or ani- 
 mal. There are however, as we shall presently find, va- 
 rious qualities peculiar to vegetable existences; others to 
 animal beings; and the great desideratum is, to ascertain
 
 -20 OV THE ORIGIN AND [Lerl- I 
 
 the exact boundary, the precise principle which defines the 
 mineral from the vegetable, the vegetable from the animal, 
 the animal of intelligence and reason, from those, if any, 
 which are endued with neither. In the more perfect spe- 
 cimens of each of the three grand divisions of nature, the 
 philosopher has been at no loss for critcrions whereby to 
 distinguish the one from the other. But as he pursues his 
 investigation, he meets with individuals so anomalously 
 constituted, as to render it difficult, if not impracticable, to 
 say with certainty to which of the three divisions they real- 
 ly appertain. Strange as it may appear, the mineral king- 
 dom seems to fade away at its extreme boundaries, and to 
 lose itself in the animal kingdom on the one side, and in 
 the vegetable on the other. So, the vegetable creation ap- 
 pears to be lost in the animal; and the two great divisions 
 of the animal world, in their turn, present us with beings 
 claiming to be rational, whilst others, who are really men, 
 have suffered their moral and intellectual natures so effec- 
 tually to decline, as to render it doubtful to what divi- 
 sion they actually belong. To get rid of these perplexities 
 required much careful observation, sound judgment, and a 
 firm reliance on the wholesome position, that though the 
 God of nature has united every link in the vast chain of 
 his creation, yet has every link of that chain its own dis- 
 tinctive and independent character, which must for ever 
 keep it in its assigned place, preserve its exact identity, 
 exclude all intermixture, and claim for it, to all eternity, the 
 precise character impressed on it at its original formation. 
 Every class of beings has its fixed laws, which endure no 
 change from time or circumstance; the mineral must re- 
 main such for ever; the vegetable can never aspire to the 
 rank of animal, nor degenerate into that of mineral. The 
 animal of intelligence can never lose its moral and respon- 
 sible nature; nor can the most careful tuition of the most 
 sagacious of brute animals, render them reasonable or moral
 
 LML L] NATURE OF MAN. 21 
 
 agents. It is true, their outward appearance may be great- 
 ly changed by physical causes, and their inclinations and 
 dispositions undergo a correspondent change; but their es- 
 sential character and identity remain the same. These are 
 important truths, which, we think, are now fully establish- 
 ed. The criterions which distinguish the mineral, vegeta- 
 ble and animal creations from each other, as also man from 
 those other animals which bear to him the closest resem- 
 blance, are at this time pretty well understood. We should 
 be pleased to pass them over in silence, and content our- 
 selves with assuming the ground, for the few reasons we 
 have already intimated. But the young inquirer after truth 
 may, perhaps, prefer that we should briefly allude to these 
 criterions, and point out a few of the instances in which 
 the contiguous limits of these three great kingdoms of na- 
 ture have been supposed to fade, or to be lost in each other. 
 As to the instances in which it has been found difficult to 
 say with certainty whether they were mineral, vegetable 
 or animal, we shall enumerate only a few, to serve as ex- 
 amples of the nature of the doubt. 
 
 First, then: Corals and Sponges were, at one time, re- 
 ferred by Beaumont and Woodward to the head of mineral 
 substances; by Ray and Lister to that of vegetables; and 
 finally, under the patronage of the learned Mr. Parkinson 
 and others, they have assumed the rank of animals. 
 
 Secondly. On the other hand, some vegetables have for 
 a time been regarded as minerals. Of this we have an ex- 
 ample in the Fontinclla Antipyretica, so named from its 
 being a moss of such peculiar hardness as to resist fire, and 
 to be often made use of by the poor in the north of Europe, 
 as a lining for their chimneys, instead of mortar. We find 
 another example in a species of moss called Byssus, which, 
 on being subjected to a red heat, becomes vitrified, instead 
 of consuming, as other vegetable substances do.
 
 22 OF THE ORIGIN AND [Lcct. I. 
 
 Thirdly. In the Asbestos we find what is called the 
 connecting link between the mineral and vegetable world. 
 The fracture of this mineral is in parallel filaments, not 
 unlike those often found in wood. 
 
 Fourthly. In the Polypus, on the other hand, we see 
 the being pointed out by some as the link which unites the 
 animal with the vegetable creation. It is, indeed, a very 
 extraordinary animal, being propagated like a vegetable, 
 by slips or shoots. If cut into any number of pieces, each 
 piece becomes, in a short time, a distinct and perfect ani- 
 mal. It may be turned inside out, with little or no dis- 
 turbance of its healthy action. It is without sex, and ap- 
 pears to be as regardless of size, as it is of all the other usual 
 harmonies of animal nature, having the power of enlarging 
 or contracting its volume at pleasure, many hundred times 
 its accustomed bulk. 
 
 Many other of these anomalies might be enumerated, but 
 enough have been stated for our purpose. In regard to 
 unorganized bodies, there is now not the least danger of 
 confounding them with those which are organized, bo they 
 vegetable or animal. But how are we to ascertain the dis- 
 tinguishing features which, with unerring certainty, sepa- 
 rate the animal from the vegetable? This has, indeed, 
 been a point of extreme difficulty. The various theories 
 advanced on this subject, have been sustained by much 
 plausibility; but nearly all of them have, in turn, been re- 
 futed, or reasonably doubted. Still, however, the subject 
 is sufficiently understood at this time, for every useful and 
 practical purpose. 
 
 The criterions which have been supposed by different 
 writers, to be peculiar to animal life, and to separate it 
 clearly from vegetable life, are 1. Locomotion; 2. A sto- 
 mach, intestines, and an alimentary canal; 3. The yielding 
 of ammonia, on analysis; 4. A limited intelligence, called 
 perception; 5. Nourishment from organized matter alone;
 
 Lcct. I] NATURE OF MAN. 23 
 
 6. Sensation; 7. Muscularity; S. Voluntary motion. Each 
 of these has been relied on as the sure criterion, and all 
 have been denied, by some one or other, to be certain tests. 
 A volume would scarce suffice to unfold the arguments 
 which have been adduced for and against these supposed 
 attendants on animality. A word or two, however, is all 
 that can be allowed us, who, it is to be feared, have already 
 trespassed too long on what some may think appropriated 
 grounds. 
 
 1. Locomotion has been denied to be the test, because 
 there are plants which possess a locomotive faculty, whilst, 
 on the other hand, there are several instances in which it 
 is denied to animals. Should the former fact, however, be 
 questioned, it is quite certain that the latter is true, as we 
 find is the case with corals, corallines, oysters, muscles, 
 sponges, &c. 
 
 2. The stomach, fyc. have been denied to be this long 
 sought for criterion, because the mere form of the instru- 
 ment or organ of digestion, is not sufficient to constitute 
 an essential difference, particularly as vegetables possess a 
 power and organs so similar in their operations, as to be 
 scarcely distinguishable; and animals, on the other hand, are 
 in several instances either wholly without these organs, 
 or appear to be greatly if not wholly independent of their 
 use. 
 
 3. t/lmmonia on analysis, has likewise been found to be 
 a very unsatisfactory criterion, since it is now ascertained 
 that most vegetables yield, upon destructive distillation, a 
 small portion of ammonia. 
 
 4. Perception, or limited intelligence. This, although 
 it is found in all animals, differs so little, if at all, from the 
 surprising instinct of some vegetables, that it furnishes, we 
 think, a very fallible mark of animality. There are, indeed, 
 instances of vegetable instinct to remarkable, that they 
 would seem to approach much nearer to the operations of
 
 24 OF THE ORIGIN AND •-• rt. I.] 
 
 even a reasoning faculty, than of animal instinct. We need 
 not specify them, as the student, in the course of his gene- 
 ral reading, will become acquainted with them, whilst to 
 the scholar the subject, we presume, is too familiar to re- 
 quire being further dwelt on by me. 
 
 5. The next criterion of animality which has been great- 
 ly relied on, is that animals are supposed to possess a capa- 
 city of deriving nourishment from organized matter alone, 
 whilst vegetable existence is sustained mainly by unorgan- 
 ized matter. This ingenious suggestion is advanced by M. 
 de Mirbel, a learned French physiologist, and is very fa- 
 vourably spoken of by Sir Edward Smith, who, in his 
 pleasing 'Introduction to Botany,' gives us the following 
 extract from M. Mirbel. 'Plants alone have a power of 
 deriving nourishment, though not indeed exclusively? from 
 inorganic matter, as mere earths, salts or airs, substances 
 certainly incapable of serving as food for any animals, they 
 only feeding on what is, or has been organized matter, either 
 of a vegetable or animal nature. So that it would seem to 
 be the office of vegetable life alone, to transform dead mat- 
 ter into organized living bodies.' On this quotation Sir 
 Edward Smith remarks, 'it appears to me so just, that I 
 have in vain sought for any exception to it;* and M. Riche- 
 rand adopts unequivocally the same opinion, and says, that 
 animals cannot convert into their own substance any of the 
 elements of unorganized matter, but that plants arc the 
 great laboratory in which nature prepares aliment for ani- 
 mals. It has, however, been excepted to by other phy- 
 siologists, who contend that vegetables are not nourished 
 exclusively by terrene aliments, nor are animals sustained 
 solely by vegetable and animal substances. Instances are 
 given of fish, worms and injects, which derive much of 
 their sustenance from minerals, and even man has some- 
 times been nourished by air, water, lime, salts, &c. I should; 
 however, he inclined to doubt the accuracy of these sup-
 
 Lect. I.] NATURE OF MAN. 25 
 
 posed instances. It appears to me that in every instance 
 where fish, worms and men have been sustained by unor- 
 ganized matter taken into the stomach, the truth is, that 
 these materials have either been mixed with vegetable and 
 animal matter, sufficient to nourish life for a time, or the 
 mere mineral substance has operated «for a while as a stim- 
 ulus, and the system has fed on itself. In the common 
 case of the earthworm, for example, which feeds on soils, 
 life is sustained only by the vegetable fibre which is con- 
 tained in such soils, and we apprehend that the worm would 
 certainly die in a very short time, if fed on mere virgin 
 earth. This criterion, therefore, appears to us to be wholly 
 unexceptionable. 
 
 6. Sensation. There is no idea more universally pre- 
 valent, than thai life and sensation are necessarily associat- 
 ed; and an animal without sensation appears to be a lusus 
 naturae which the mind revolts at, and even philosophical 
 faith can scarcely comprehend. It is, however, contended 
 by some, that sensation is not essential to the principle of 
 animal life, and that there are animals as wholly destitute 
 of it, as vegetables are supposed to be; and, indeed, that 
 there is in nature a scale of sensation, in the exact ratio of 
 the degree of intelligence. Sensation, say they, depends 
 upon the presence of a nervous system of some kind; and 
 there are animals wholly without this structure, and con- 
 sequently' entirely destitute of feeling! In proof of this 
 strange doctrine, they cite the case of those animals which 
 possess the astonishing power of spontaneously casting off 
 their limbs, when molested, and of renewing them again by 
 a formative process peculiar to them. They also urge the 
 case of the gadfly, which, when fastened to the hand, suf- 
 fers itself to be cut or taken to pieces, before it will release 
 its hold, and, indeed, apparently without much annoyance 
 to its comfort. The polypus is also mentioned, which 
 retains its full health though cut to pieces, and turned in- 
 4
 
 2 (, OF THE ORIGIN AND t Lect - *• 
 
 side out. But all this, we think, is far from proof of the 
 absence of sensation; these animals may feel exquisitely, 
 but the principle of life is either extremely tenacious in 
 them, or the organs in which it mainly resides, may not 
 have been disturbed. That there are, however, in nature, 
 degrees of sensation -bearing a close relation to the degree 
 of intelligence, and the perfection of the nervous structure, 
 cannot be doubted; but that there are any animals wholly 
 without sensation, has never been, we think, by any means 
 satisfactorily proved; this, therefore, we regard as a second 
 infallible criterion of animality. As to the shocking expe- 
 riments on animal life, which have been made by Spallan- 
 zani, Ribaud, Valiiant, Redi and others, in which beetles 
 have been stuffed with cotton for many months; the tor- 
 toise and the snail have been deprived, the one of its 
 brain, and the other of its head, and yet lived; it is suffi- 
 cient to say that, in the beetle the organ of life had not 
 been touched; in the tortoise the brain was not essential, 
 as the other parts of the nervous system may have been 
 sufficient to sustain life for a time; and as to the snail, its 
 brain does not reside in its head, and it is well known that 
 the snail can, by a formative power, even renew its head, 
 when deprived of it. 
 
 7. Muscularity. This, likewise, has been denied to be 
 a sure criterion, because of the similarity of the contractil- 
 ity and irritability of the vegetable and animal fibre. Hut 
 muscularity is different from both, and although there are 
 animals of such extreme simplicity of structure, as appa- 
 rently to be mere globules of jelly infinitely small; yet 
 even in them, the motion which they effect by alternate 
 contraction and expansion, may be the result of muscular 
 action, and in all probability is. Muscularity, therefore, 
 we regard as a third infallible mark of animality. 
 
 But, should even these three fail us, as the sure criie- 
 rions we are in search of, we think we have one which can
 
 Lect. I] NATURE OP MAN. 27 
 
 admit of no dispute; and, in the present inquiry, one cer- 
 tain distinctive mark answers every purpose; we allude, 
 
 S. To Voluntary motion. We have seen that there are 
 animals which do net possess a locomotive power; so there 
 are vegetables which possess spontaneous motion: but ani- 
 mal life has never been known to exist without voluntary 
 motion; and vegetable life has never been known to mani- 
 fest voluntary motion. The madrepore, the coral, the mus- 
 cle, the oyster cannot voluntarily change their place; they 
 are not endowed with locomotion; but yet they all open 
 and shut their mouths voluntarily, either to receive or to 
 exclude nourishment; they all move their muscles etc. vo- 
 luntarily. The motion of vegetables, on the other hand, 
 is wholly involuntary. On the whole, then, we are of 
 opinion, that the capacity to receive nourishment from or- 
 ganized matter alone, the faculty of sensation, the property 
 of muscularity, and the power of voluntary motion, are the 
 four certain properties which distinguish animal from vege- 
 table existences. This line being drawn, it is easy to dis- 
 tinguish Man from other animals, though even this has been 
 denied; and it is easy also to ascertain, and sufficiently to 
 demonstrate the fact, that all the differences which we find 
 in the human family, are mere varieties flowing from the 
 gradual operation of physical and moral causes, and conse- 
 quently that man is a unit in the creation, without different 
 species. This has been most strenuously denied by some 
 philosophers, and as eagerly by all those who would seek 
 some justification from nature, for their extermination of 
 Indian intruders; their unprincipled traffick in human 
 beings; and their packing away, as cargo, the oppressed 
 Africans, as creatures, whose nerves are not as sentient, 
 and whose blood is not as vital, as those of the white 
 man. The subject we have been dwelling on, is quite too 
 extensive for us to present you with even its full outlines; 
 but it is important to urge it on your attention, as one too
 
 28 OP THE ORIGIN AND [Tscl. 1 
 
 closely allied to an enlarged and philosophical study of \our 
 peculiar science, to be neglected by you. But to proceed. 
 In man we certainly find a class of powers wholly dis- 
 tinct from those we have just mentioned, as belonging to 
 other animals in common with man. Thought, reflection, 
 reminiscence, comparison, reason, &c, differ altogether 
 from any of the animal and vegetable powers, and being 
 peculiar to man, are referred to that intellectual part of his 
 being called understanding, mind or soul. These are in 
 no degree whatever to be found in any other animal than 
 man. That various animals have certain functions whicb 
 often resemble in their operations those of the soul or mind, 
 cannot be denied; hut all of these are referrible, we think, 
 to a different principle. They are not the offspring of in- 
 tellect, of a reasoning power, but of mere perception and 
 animal instinct; for though such animals possess a species 
 of memory, power of selection, means of a ervation, 
 
 &c. these are but instincts which I n hv an unerring 
 
 and invariable law. They are not capable of self-improve- 
 ment; they are all, as individuals of the same species, co- 
 equal in their instinctive powers. Every bee, for example, 
 fashions his beautiful net work with equal skill: every spi- 
 der of the same species, weaves his web with the same 
 mathematical perfection; every beaver forms his cabin on 
 the same model, and with a like accural N .'her do 
 
 these animals possess a moral sense, a con- . a know- 
 
 ledge of right and wrong, a sense of Deity. They know 
 of no distinction between actions mala in sc, and mala 
 prohibita. And this is equally the case whether we refer 
 these moral distinctions, with Dr. Cud worth and Dr. 
 Clarke, to the reasoning faculty; or, with Dr. Hutcheson, 
 to the moral sense; or, with Mr. Hume, to the principle 
 of utility, which, under his system, regards virtue and vice 
 as merely artificial, all actions as intrinsically the same, 
 ind all moral approbation and disapprobation as flowing
 
 Lect. I.] NATFRE OF MAN. 29 
 
 solely from arbitrary or extrinsic circumstances. Whilst 
 some philosophers, therefore^ make man and brute essen- 
 tially the same beings, varying only in the degree of intel- 
 lectuality, the celebrated Linnreus, (perhaps without in- 
 tending to do so) has given an indirect sanction to this 
 idea, by the place which he has assigned to man in his 
 classification of animated nature. Man, we presume, should 
 have formed a distinct and independent class in the syste- 
 ma naturae of that enlightened philosopher, as he unques- 
 tionably does in the scale of being. Man is constituted by 
 the God of nature, a unit in the creation. There are no 
 generical differences in the class to which he really belongs, 
 nor is he allied to any other created being: his place, there- 
 fore, under the class Mammalia, order Primates, and 
 genus Homo, in the system of this distinguished naturalist, 
 is derogatory to the high nature and station which have 
 been assigned to man by Him who created him. Man, 
 not being a mere animal, should not have been associated 
 with the Simia Troglodytes, or Angola Ape; with the 
 Simia Satyrus, or Ourang Outang; and with the Vespcr- 
 tilio Murinus, or common bat. 
 
 Some justification, however, for this arrangement is 
 sought in the ostensible design of Linnaeus, to take his 
 indicia of classification from the external appearances of 
 the animal, vegetable and mineral creations; and conse- 
 quently, as men, apes, ourang outangs, whales and bats 
 nourish their young from a similar fountain, and agree in a 
 few othpr respects, they must all be arranged under the 
 class Mammalia, and order Primates. We still think, 
 however, that as man is in truth the lord of the creation, 
 he should have found in the system of this philosopher, a 
 station which should have given less countenance to the in- 
 iidel notions of a Monboddo, a Helvetius, a Buffon, or a Dar- 
 win; the three first of whom derive the human race from
 
 PO OF THE ORIGIN ANJ» [Led. I. 
 
 the family of monkeys, and the other, with matchless ab- 
 surdity, from that very palatable genus, the oyster! 
 
 Although many classes of animals are 
 
 (3.) Man not mere- » 
 
 ]y a gregarious, but found to maintain a sort of society, asso- 
 a social animal; and iati j n herds while othcrs arc solitary, 
 herein of the univer- 
 sality of Natural Ju- they cannot properly he called social, but 
 nsprudence. only gregarious animals. If man pos- 
 
 ed only the sympathetick, without the intellectual proper- 
 ties of his nature, he were still only a gregarious animal, 
 though found constantly associating. But in his actual 
 state, even the qualities which he has in common with 
 brutes, are modified and coloured by those which they hit 
 denied. His pursuit of fcod, for example, is accompanied 
 by a prospective concern for the future, of which we find 
 only a faint resemblance in the instinct which prompts the 
 beaver, the squirrel, and various other animals, to secrete 
 stores over and above the stock required for immediate 
 want. His enjoyment of food, also, is limited by consi- 
 derations of health which cannot influence them; and his 
 sexual pleasures arc heightened by tender and delicate 
 sympathies of which they are wholly insensible. So, like- 
 wise, the love of life is in man enlarged from an instinct 
 into an emotion, rendered powerful bv innumerable attach- 
 ments, remembrances and anticipations. In the gi 
 of his appetites, therefore, he betrays a greater nobleness 
 of nature; whilst he strongly exhibits the importance of 
 his real destiny. Man, as we have seen, being a unit in 
 the creation, as he forms a class by himself, in which, though 
 there arc varieties, there are neither different orders nor 
 genera nor species, it results as a necessary illation, that the 
 same system of natural jurisprudence is obligatory on, and 
 every way suited to all the possible varieties which the hu- 
 man family has ever assumed. This wholesome position, to 
 which our foregoing physical observations arc but prelim- 
 inary, has, nevertheless, been very strenuously denied, and
 
 Lect. I.] NATURE OP MAN. 31 
 
 this foundation, on which the universality of the moral and 
 natural law is based, has been questioned by men of distin- 
 guished genius and learning. It is contended by this class of 
 philosophers, that mankind are made up of a number of spe- 
 cies, radically distinct from each other: that Adam was not 
 the progenitor of the human race; and that the gradual 
 operation of physical and moral causes, is wholly inade- 
 quate to the production of such varieties in the human form 
 and complexion, as present themselves in the different re- 
 gions of the earth. Assuming this doctrine, they then ask 
 with apparent triumph, how are we to apply the rules of 
 morals universally? how extend them to one species, and 
 to another, when the moral constitutions of these several 
 species are as various as their several aspects? Or how can 
 we hope, say they, that a similar legislation can ever suit 
 the European, the Hottentot, the Negro, and the Esqui- 
 maux? In reply to these objectors, we have to deny, in the 
 first place, both the fact, and the conclusion drawn from it. 
 The fact of the distinct species of men, has never beet) 
 proved by them; and if it had, it does not follow, as a ne- 
 cessary conclusion, that there would be a correspondent 
 variety in their moral constitution. At all events, the 
 burthen of proof as to the former, lies clearly on them; 
 since it must be conceded by them that the human family 
 has never presented in nations, or even in tribes, instances 
 of greater disparity than we find every day among indi- 
 viduals of the same nation and tribe, or even of the same 
 family, who are confessedly of common origin. The fair 
 and lovely Circassian, whose venal parents, with extremest 
 care, have nurtured her from tender infancy, encourag- 
 ing in her the full developement of every latent beauty, 
 and, by every artificial means, assisting the influence of 
 the cool and refreshing breezes which come from the 
 bright bosom of the wide spreading Caspian, is, indeed, 
 a being of a heavenly mould, when compared to the rude
 
 32 OP THE ORIGIN AND [Loct. I. 
 
 Hottentot, whose country hath neither hill nor valley; 
 whose eyes are not refreshed by verdant lawns; and whose 
 complexion meets with no cooling breeze to 
 
 "assuage 
 
 The torrid hell which beams upon her head.''' 
 
 But a comparison of even such extremes, will not justify 
 the conclusion of there being distinct species in the human 
 family; since even this is, in truth, nothing more than 
 frequently occurs between individuals born of the same 
 parents. One raised in tenderness, and highly cultivated, 
 becomes in beauty an Adonis, in intellect a prodigy, and 
 in heart and affections, an object of admiration and love; 
 whilst another, cast by circumstances on the rude ocean 
 of life, without education, often becomes rude and dis- 
 gusting in appearance, coarse in manners, cruel in heart, 
 and as ignorant as the very brutes with which it is his de- 
 light to associate. We allege, then, that mankind are 
 demonstrably traceable from a common stuck; that every 
 objection which has ever been made to the unity of the 
 species, is conclusively answered in the history of man's 
 moral and physical condition, throughout the various re- 
 gions of the globe. The small eyes, high cheek bones, 
 swarthy, copper, olive and sooty complexions, and low 
 stature of many nations inhabiting the frigid and torrid 
 zones; the flat nose, crisped hair, thick lips, di pressed 
 forehead, form of the cranium, structure of the tibia, &.c. 
 &c. of the African; the great differences in the facial angle, 
 the absence of beard, the elongated mammae, the flat head, 
 and all the infinite varieties in the external features and 
 aspects of men, are facts of as certain and easy solution, and 
 more so, as the correspondent variety which we constant- 
 ly find in the form, size, colour, &c. of the animal and ve- 
 getable kingdom generally, and which appearances th 
 very objectors have never ventured to ascribe to essential 
 differences, conceding that they are, in all cases, the r<
 
 Lect. I.] NATURE OP MAN. 33 
 
 of the combined operation of a variety of physical causes. 
 We by no means intend to argue further this long contro- 
 verted point. It is sufficient that we state, in general 
 terms, the nature of the question, and leave the discussion 
 of it to the anatomist and physiologist, to whom it more 
 properly belongs. 
 
 As to the importance of the decision, however, in regard 
 to morals and jurisprudence, there can be no doubt, since 
 the unity of mankind establishes the unity of the moral 
 law by which they are to be governed, although a diver- 
 sity of species might not necessarily destroy the univer- 
 sality of that law. The question, however in its entirety, 
 is generally understood to go the whole length of esta- 
 blishing the position, that if you prove the diversity of 
 species, you destroy the certainty and universality of moral 
 science, and excite doubts, not only as to whether all men 
 have equal rights by nature, but whether they be capable 
 of enjoying them. It countenances the oppression of des- 
 pots, the reluctance of those in power to part with it, and 
 the desire of the strong and wicked to govern the weak 
 and ignorant, without the least regard to right or justice, 
 should they happen to differ from their rulers in colour, 
 form and habits. It lessens our abhorrence of the severi- 
 ties practised towards the defenceless Indians, and the cru- 
 elties often committed in enslaving the Africans; and final- 
 ly, if this theory of the origin of man be true; if the Al- 
 mighty hath not indeed 'made of one blood alj nations of 
 men, for to dwell on all the face of the earth,'* we should 
 have no general standard of the moral ideas and habits of 
 different nations, or even of different men in the same 
 nation: the whole philosophy of ethicks would be con- 
 founded, and it would be essential to a sound legislation, 
 that the genesis, not only of nations and tribes, but even of 
 
 * Acts xxvii. 26. Dent, xxxii. 8,
 
 34 OF THE ORIGIN AM' [Leet. I. 
 
 individuals, should be accurately known. For either this 
 hypothesis must wholly deny the obligation of moral and 
 natural law, or call upon its opponents to apply it exclu- 
 sively to such nations, tribes or individuals, as have pre- 
 served an unmixed lineage, and whose common origin can 
 be accurately traced; or else there must be allowed a 
 universality of obligation, on the ground of expediency, 
 since it must be admitted that it is at this time wholly im- 
 practicable to deduce the origin even of nations, much less 
 of individuals. If, however, the burthen of proof be thrown 
 on these captious objectors, (as it certainly ought to be) and 
 they be embraced by the natural code, until they maintain 
 their exemption by proving a distinct origin, and a rule 
 of action more suitable to their nature, the theory falls 
 harmless to the ground. We are not aware of any other 
 mode of avoiding the difficulty resulting from this hetero- 
 dox doctrine, than the one we have just intimated; for if 
 there were originally distinct moral laws, suited to the dis- 
 tinct physical nature of every species, there can be now no 
 code of universal obligation, nor, indeed, of special or par- 
 ticular operation, unless, in the first place, a universal sys- 
 tem may be allowed to rest on the mere impracticability of 
 any nation &.c, objecting to be bound, after it has failed to 
 establish its distinct lineage; or, secondly, on the ground 
 that no nation, for the same reason, can make out its title 
 to any particular moral law. Even admitting, then, that both 
 were originally distinct, and accurately known, they have 
 now become variously blended, and wholly unknown. The 
 history of mankind is, we know, the history of innumera- 
 ble migrations; the south and the north, the east and the 
 west, have, by turns, deluged each other with the torrent 
 of migration, and carried arts and peace, or barbarism and 
 arms, into various climates, and amongst various races. 
 The fertile plains of Assyria have received into their bosom 
 the inhabitants of the vast, sterile and elevated central plain
 
 Lect. I.] NATURE OP MAN. 35 
 
 of Asia; and the races of Italy, (themselves transplanted 
 from the shores of the iEgean) have been lost in the hordes 
 of barbarians from Germany and Scandinavia, which have 
 precipitated themselves upon them. Not to multiply ex- 
 amples, the whole story of mankind, and all the researches 
 of the curious, present indubitable traces of this mixture 
 and confusion of race and lineage, manners and laws. I say 
 nothing of that more gradual process by which individuals, 
 in the intercourse established by trade, curiosity, or the 
 mere rambling of chance, perpetually abandon their tribe 
 and nation, to mingle themselves with other families, and 
 other communities. There is no subject more curious than 
 this, whether we regard the traces of common laws, of lan- 
 guage, of superstitions, or of traditions, which yet continue 
 to be discovered. The intermixture of which we have 
 spoken, being so thorough, there appears to us no alter- 
 native but to enforce universally that system of natural 
 jurisprudence, which the best lights of human intelligence 
 have furnished us. I repeat, then, that if there ever ex- 
 isted a period in the history of the human kind, in which 
 the races of man were traceable to several and independent 
 origins or stocks, it exists no longer, and the pernicious 
 objection we have been considering, falls to the ground. 
 
 What has been hitherto said, rests upon an admission 
 which was made argumenti gratid, that a diversity of 
 moral constitution and law, is necessarily consequent upon 
 the proof of a distinct physical organization. But is this 
 necessarily the case? We apprehend not. The unity of the 
 kind certainly establishes the universality of the law; but a 
 variety of species raises, at most, nothing more than a pre- 
 sumption of there being a correspondent diversity of moral 
 constitution, and the proof of the former does not per se es- 
 • tablish the latter. Whatever differences of habits, customs, 
 and moral notions, are discoverable in various nations and 
 countries, are imputable in so slight a degree, if any, to the
 
 gg OF THE ORIGIN AND (Led. I. 
 
 differences in organical structure, that we imagine it would 
 puzzle the wisest of these philosophical sceptics to suggest 
 any modification of the law of nature, or any principle of 
 it, conformable to the difference which is observable. And 
 were the fact fully conceded, that there are rude nations 
 whose very virtues are the most disgusting vices in civili- 
 zed life, it would not follow that these notions are the result 
 of their peculiar organization or complexion, since it is well 
 known that even among the most enlightened nations, nay, 
 in the most polished families, there are sometimes individ- 
 uals whose immoral education has nearly effaced all moral 
 sense, extinguished conscience, and almost obliterated even 
 the sense of Deity. But leaving the whole of these topicks 
 to those who are disposed to pursue them further, we shall 
 for the future regard the moral constitution of man, and 
 the universality of the natural law, M postulate*, without 
 again disputing whether man has been aptly classed; 
 whether the unity of his descent be demonstrated; or 
 whether the great code to which Moses, Confucius, Seneca 
 and Socrates have paid almost equal homage, be or be not 
 equally applicable to all conditions of life, and to all the 
 varieties of mankind. We believe that what are known 
 to us as the natural duties and rights of man, form the 
 subject of ail law whatever, whether applied to man's 
 situation before his entrance into communities, and there- 
 fore called the 'Law of Nature;' or to the relative sit- 
 uation of such various communities after they arc establish- 
 ed, and then called the 'Law of Nation*;' or to man's 
 situation within particular communities, and then styled 
 the 'Municipal Law.' 
 
 (4.) Man endued From what has already been said of the 
 with reason, and pro- » . . , „ . , 
 
 gressive in know- natur e of man, it is perhaps sufficiently 
 
 ledge, obvious that reason is a faculty or power 
 
 of mind, and, as such, appertains exclusively to man. It 
 
 is that principle by which we compare several ideas, and
 
 Lect. I.] NATURE OP MAN. 37 
 
 deduce consequences from the relations which connect them. 
 Some philosophers have considered the reason of man as 
 only an amplification, and fuller developcment of a faculty 
 existing in all animals, in degrees exactly suited to their res- 
 pective natures. On this subject the two celebrated French 
 metaphysicians, Des Cartes and Helvetius, have advanced 
 theories totally opposite to each other, whilst both of them 
 are extremes, from which rational minds cannot fail to re- 
 volt. According to Des Cartes, all brutes are mere animal 
 machines, having no one faculty in common with man. He 
 denies to them all ideas, sensation, and even life. With 
 them pain and pleasure, baying the moon, and speed in the 
 chase, are the necessary results of mere mechanical evolu- 
 tions. Helvetius, on the other extreme, contends that men 
 and brutes differ only in their means and degrees of educa- 
 tion ; that animals are endued with reason, and that, bodily 
 organization makes the only difference between the soul of 
 a rhinoceros, and that of a Newton. The monkey tribe, 
 who use their paws with admirable dexterity, would, ac- 
 cording to that philosopher, be as progressive in knowledge 
 as man, were it not for bodily defects, which repress the 
 energies of their genius! That they still inhabit the hol- 
 lows of trees and rocks, and have not society and govern- 
 ment, huts and palaces, he ascribes to their inferiority to 
 man in numbers, strength, and duration of life, and to their 
 being nourished by food so easily procured. Absurd as the 
 views of both these philosophers surely are, they had their 
 admirers. The enlightened Pascal was charmed with the 
 mechanical hypothesis of Des Cartes; and the mental theory 
 of Helvetius gained ground, not only in France, but on the 
 continent generally, and even in England. Dr. Darwin 
 has gone quite as far as Helvetius, and ascribes all the ac- 
 tions of instinct to reason; whilst that intelligent and agree- 
 able writer, Mr. Smellie, contends that reason is the ne- 
 cessary consequence of the ztse of instinct. That all these
 
 38 
 
 OF THE ORIGIN AND [Lect. I. 
 
 views are erroneous, we entertain not the least doubt; but 
 we have no occasion, even if time would serve, to use much 
 exertion in their refutation. 
 
 According to Locke, man exercises, in the act of reason- 
 ing, both sagacity and illation; and in such a manner, as to 
 display four distinct powers. If, then, the brute be denied 
 either of these, he does not reason, any more than those an- 
 imals which pronounce articulate sounds, can be said to 
 speak, since they are incapable of conceiving the idea ex- 
 pressed by the words which they utter. Man, in the opera- 
 tion of reasoning, discovers proofs by the faculty of iftOMt 
 Hon. These he arranges in such a manner by method, as 
 to make apparent their several relations. By the faculty oi 
 judgment he perceives with accuracy these subsisting con- 
 nexions; and, finally, by illation he deduces a just conclu- 
 sion from all that has been presented to lnm. Hrute animals, 
 on the contrary, are wholly incapable of mental induction: 
 they have neither universal and abstract ideas, nor the power 
 of treasuring up knowledge, though they may lie made to do 
 a variety of amusing acts which bear a close resemblance to 
 the power of progressive improvement Animal instinct 
 displays itself in a manner essentially different from reason. 
 Beasts of the greatest physical powers, and eminently saga- 
 cious and docile, are nevertheless wholly incapable of exercis- 
 ing dominion or government, over either their own or other 
 species. The most illiterate and dull of our species, is able 
 to manage the most intelligent animals, and by a little rea- 
 son to conquer brutal strength, and subject it to the most 
 submissive obedience. It is true, indeed, that animals are 
 not left to the guidance of mere chance, but, on the contra- 
 ry, are often skilful, methodical and persevering. But in all 
 these cases they act by an invariable law of their nature: 
 to use the idea, without the poetical dress of Pope, instinct 
 must go right, though reason may go wrong. Whilst ho- 
 nest instinct comes a volunteer, reason comes, on all occn-
 
 Led. I.] NATURE OK MAN. 39 
 
 sions, at our call, is varied at our will, and infinitely combin- 
 ed and modified to subserve every possible purpose of virtue 
 or of vice, of gaining power, or of destroying it, of govern- 
 ing man, or of being governed. Physical power and reason 
 give man the sovereignty over creation; brutal strength 
 and instinct confer no power but what is exactly defined 
 in its extent, and mode of use. One animal, it is admit- 
 ted, preys on another; but even this helium omnium in 
 omnia has its inflexible laws, which they cannot violate; 
 it is wholly incapable either of producing an accumulation 
 of power, or of being used for any other purpose than that 
 for which it was established, viz. as a means of sustenance. 
 In its exercise there is no attribute of mind; and in its con- 
 sequences it bears no resemblance whatever to the like 
 power when exerted by man. 
 
 But man in the use of reason, makes it subservient to 
 many other purposes than the acquisition of knowledge, 
 and the subjection of his species to government and laws. 
 Nature hath ordained that in man, 
 
 'Custom should mould to every clime 
 The soft Promethean clay.' 
 
 He is consequently the inhabitant of every region of the 
 globe. The equatorial heats, and hyperborean frosts, are 
 alike to him. Universal nature has become tributary to his 
 wants, as he enjoys the power of extracting from it, 
 through the mechanic arts, what the united strength of 
 thousands of his species, or that of brutes, could never 
 effect. He procures his food in places, and under circum- 
 stances, where irrational animals would perish with hun- 
 ger; he renders, by the nicest culinary processes, that 
 which is poisonous, not only innoxious, but salutary; he 
 studies his own physical nature, and derives from minerals 
 and vegetables, medicines adapted to every disease; he ex- 
 ercises his reason and affections through the medium of 
 written and verbal language; by these he communicates all
 
 40 OJF THE ORIGIN AN1> [Lect. I. 
 
 his opinions, desires, wants, passions, and the most abstract 
 and refined notions; by written language time and space 
 are overcome, and the people of one country, and one 
 age, are made familiar with the opinions and knowledge 
 of other countries, and other ages. In man, speech is in 
 a great degree the creation of his own inventive powers; 
 the voices and cries of brutes are born with them, and 
 never go beyond a very limited range; the instinct of brutes 
 can effect nothing which bears the slightest resemblance to 
 this divine attribute of man. In animals, the organs of 
 speech are often perfect, and pronounciation distinct and 
 accurate; yet they possess in no degree the power of 
 speech. Mere machines nay be made to walk, to fly, and 
 even to utter sound surprisingly articulate; but this, in 
 truth, is neither walking, flying nor speaking. So the par- 
 rot, the magpie, and the nightingale, though they have the 
 tongue, and particularly the larynx, nearly as well adapted 
 for speech as those in man, and arc thus enabled to utter 
 words, or articulate sounds, are in this respect little else 
 than machines. Language is something more than the 
 utterance of mere words; it implies thought and reason as- 
 sociated with the words; and as brutes can neither combine 
 thought with articulate sounds, nor unite nor separate ideas, 
 they are incapable both of reason and of speech. 
 
 Although birds and other animals have been sometimes 
 taught to mimic man in the pre-eminent and ennobling 
 faculty of speech, we agree with Dugald Stewart, in ex- 
 plaining rather by ventriloquism than any thing else, the 
 surprising account which is given by the German philoso- 
 pher, Leibnitz, of a clog who spoke. A history of this re- 
 markable animal was given by Leibnitz to the Abbe de St. 
 Piere, and by him transmitted to the Royal Academy of 
 Paris. The. statement is, that the dog pronounced accu- 
 rately the entire alphabet, except the M, N and X, and 
 spoke very accurately about thirty words, among which
 
 Lect. !.] NATURE OF MAN. 41 
 
 were the French words for chocolate, coffee and tea. But 
 the account concludes with stating that he spoke through 
 echo; that is, after his master had pronounced the word. 
 We believe that Leibnitz and others were, in this instance, 
 ignorantly credulous; but we cannot fully concur with Pro- 
 fessor Stewart in regarding the case as absurd or impossi- 
 ble; for though the dog's tongue is certainly less adapted 
 for the utterance of words than that of some birds, yet it is 
 well known at this day, and attested by incontrovertible 
 facts, that the tongue is not an essential organ of speech, 
 but that the larynx frequently performs every office usually 
 attributed to the tongue. Several instances are recorded 
 where voice, speech, deglutition, and even taste have been 
 most accurately perfect, although the tongue has been whol- 
 ly wanting; and in other cases, the tongue, and apparently 
 the larynx, have been perfect, and yet the animal was dumb. 
 Speech in man, and the faculty possessed by some animals 
 of uttering articulate sounds, do not essentially depend on 
 the formation of the tongue, and nothing can be more ground- 
 less than the vulgar notion of some people, that all animals 
 would speak, if the various organs in them were adapted to 
 such an utterance. This, indeed, was the opinion of Hel- 
 vetius and his disciples, to which we have before alluded. 
 It is not pretended in any of the surprising instances of 
 speaking birds and other animals, that they were endued 
 with a degree of intelligence beyond their species. Mr. 
 O'Kelley's celebrated parrot, which repeated with accuracy 
 not less than twenty of the popular songs of the country, 
 and sung them to appropriate tunes, was not remarkable 
 f'jr the least intelligence in other respects, or even in the 
 execution of this surprising modulation of its voice, as it 
 was invariably performed according to a necessary law, 
 from which it could not in any degree vary. Nor will the 
 bulllinch, the nightingale, the raven, the jay, nor our de- 
 lightful mocking-bird, be regarded by any reflecting mind, 
 
 6
 
 42 
 
 Or THE ORIGIN AND [Led. I. 
 
 as possessed of more reason, intelligence or intellect, than 
 the rest of their silent, or less musical companions of the 
 
 grove. 
 
 It appears on the whole, therefore, that speech in man 
 is the highest evidence of a rational soul; and, when mi- 
 micked by other beings, furnishes no evidence whatever 
 of mind or soul in them. Articulate language is not only 
 peculiar to man, but stands pre-eminent as the faculty 
 which invokes him to the cultivation of the numerous other 
 powers of his nature, that adapt him to society, govern- 
 ment and laws. Hence is it that men in all ages, and in 
 all climates, being gifted with speech, have assembled in 
 communities, for society and government of some kind or 
 other. But this, as we have already shown, is not a mere 
 gregarious association; for the rudiments of these social 
 sympathies, (the fountain of such lively pleasure in civilized 
 life) are still discernible in the most solitary tribes that 
 gain their food by the lonely avocation of hunting. Even 
 among them, the relations of husband and wife, parent and 
 child, arc maintained, if with less delicacy, often with more 
 liveliness, and add their force to the calls of appetite, to 
 urge the savage from his indolent repose to the toils of the 
 chase. Neither does the parent, in these rude associations, 
 abandon his offspring on the recurrence of new progeny; 
 nor does the offspring become unmindful of its parent, when 
 no longer dependent on it for nutriment or support. The 
 wife and husband are not forgotten with every recurring 
 season, but add to that tie the lasting one of the parent, and 
 of the mutual friend; and these relations, which thus become 
 so much more durable than the same among brutes, are co- 
 loured, heightened and ennobled by the simultaneous ope- 
 ration of the moral feelings. From this intimate associa- 
 tion of men under all circumstances, spring two obvious 
 conclusions; first, that it is the result of their nature, and 
 essential to their happiness, since men arc impelled, in the
 
 Lect. I.] NATURE OF MAN. 43 
 
 main, to what conduces to happiness; and secondly, that it 
 is necessary that they should cultivate those qualities which 
 perpetuate, cement and embellish this association. To this 
 foundation, therefore, may be referred the duties of bene- 
 volence and affection, of mildness, of charity, of compas- 
 sion; of all those natural sentiments, in short, which have 
 no relation to positive institutions, and which are found 
 existing through the earth, independently of them. Man 
 then, as we have seen, is a being endowed not only with a 
 heart, but an intellect, each of which is susceptible of the 
 highest improvement; and as the first connects him with 
 his own species, and attaches him to it, the second connects 
 him with all other objects, animate and inanimate, of the 
 world around him; nay, of the universe. To observe the 
 external appearances of these, to examine their peculiar 
 properties and structures, their connexions and relations 
 with each other, is an instinctive emotion, and an exhaust- 
 less source of gratification. This is observable in the wan- 
 dering inclinations of uncivilized tribes, for even in our 
 least refined state, the soul prompts us to ramble in the 
 fields, and to revel on the beauty and varieties of nature. 
 Hence the life of such as are deemed even the most unob- 
 servant, is one long lesson: we gradually accumulate a vast 
 multitude of facts, insensibly arrange them in their classes, 
 and deduce from them general laws; whilst we listen with 
 o-reat interest to the results of other men's observation, and 
 endeavour to make them our own. By a happy wisdom, 
 too, of nature, the knowledge of most of these truths adds, 
 in some mode and degree, to our physical comfort: we are 
 consequently impelled to the study of them by an addi- 
 tional motive. The curiosity which led the indolent gazer 
 on the Assyrian plains, to look upward on the brightness 
 of the heavens, led also to the regulation of times and sea- 
 sons. The pleasure of inhaling the perfume of a flower, led 
 the way to the discovery of its medicinal or nutritious pro-
 
 44 OF THE ORIGIN AND [Lect. I. 
 
 pertics. The study of his fellow men was yet more natural 
 to the untaught rover of the primeval earth, since it was 
 not less interesting to his curiosity, than necessary to his 
 happiness and safety. Every where, in short, man is seen 
 progressive in knowledge, and reasoning towards useful re- 
 sults, from the phenomena around him. 
 
 (5.) Man areli- As man is the only being endowed with 
 gious animal. reason, and progressive in knowledge, it 
 
 necessarily follows that he is the only religious animal. 
 Endued with social affections, and with intellectual capaci- 
 ties, both of which, though in a different manner, conduce 
 to. his internal happiness; and directed by his reason to se- 
 lect from the abundance around him, whatever of the ma- 
 terial creation may minister to his external wants or grati- 
 fication, man naturally looks around him for the great au- 
 thor of his bounty. In every form of na f ure he sees the 
 traces of design and of skill; but he sees no where the 
 being capable of design so comprehensive, or of skill so 
 exquisite. None of his own capacities, or what he observes 
 of others', lead him to the idea that man can he the author 
 of the worid, and all its crowd of beauties: his thoughts 
 are therefore naturally elevated to the conception of some 
 superior being, whose powers are adequate to the contriv- 
 ance and execution of a system so perfect, so vast, and so 
 various; in other words, to the conception of a God. While 
 his miracles impress him with the idea of his ■ the 
 
 daily perception of his bounty impresses him with the feel- 
 ing of dependence and of gratitude, and these combined 
 emotions are what is called Religion. 
 
 Whatever complexion or stature or form, an African 
 sun, or Siberian frosts may have impressed on man, and 
 whatever varieties we meet with in his moral constitution, 
 we find that religion, of some kind, is ever present. Man, 
 if he reflects at all, is compelled to recognize the exislcnce 
 of something within him, different from, and independent,
 
 kect. I.] NATURE OF MAN. 45 
 
 in a great degree, of the external or corporeal part. II is 
 experience soon teaches him that this active and ever busy- 
 intelligence is not so intimately connected with the body, 
 but that it may possibly, and very probably will, exist 
 after the body's dissolution. This belief is inseparably 
 associated with the sense of Deity, the perception of right 
 and wrong, and the expectation of a future life, and of re- 
 tributive justice. These are doctrines, though often great- 
 ly abused by the most disgusting fantasies, recognized, in 
 some form or other, in all ages, and by all people. Whether 
 the universality of these opinions be owing to their perfect 
 consonance with reason, or whether they be the doctrines 
 of a primeval revelation, preserved in greater or less purity 
 by all people, is not for us to say. Quicquid est Mud, 
 says Cicero, quod sapit, quod vult, quod viget, cseleste 
 et divinum est; ob eamque rem setemum sit necesse est. 
 
 In conclusion of this part of our subject, I may observe, 
 that though it be painful to contemplate the false views, 
 and shocking superstitions which this conception has gene- 
 rated among mankind, it is equally interesting to discover 
 its unbounded prevalence, its general happy influence on 
 the government and laws of most nations, and that it inva- 
 riably forms a part of the intellectual treasure of man, in 
 whatever region he may be found. Religion, then, being 
 natural to man, and essential to his happiness, is most inti- 
 mately connected with civil, as well as natural jurispru- 
 dence, it being the object of all law to prescribe to man 
 such rules of conduct, as may be best suited to promote 
 his temporal, as far as that may not interfere with his eter- 
 nal felicity. 
 
 (6) Man a free The next striking difference between 
 agent, man, and the other organized beings which 
 
 surround him, is the freedom of his Will. Amidst the 
 multitude and variety of the existences by which he is en- 
 compassed, he wanders not with a blind impulse towards
 
 46 OP THE ORIGIN AND [Lect. I. 
 
 one or the other. Unlike animals, he is not confined to 
 the selection of certain invariable elements of enjoyment, 
 nor within the range of a limited choice, but he is at liberty 
 to choose between the opposite extremes of evil and good. 
 It is when we apply this liberty of thought and of action 
 to morals, that we find the most singular feature in man's 
 nature, and the foundation, indeed, of all moral obligation. 
 Were man invariably directed either to good or evil, he 
 might fold his arms with the sentiment of indolent enjoy- 
 ment, or of reckless despair, and wholly lose the activity 
 of sentiment and action which gives such charm and point 
 to his existence. 
 
 We are accustomed, indeed, to speak of instincts, of in- 
 clinations, and of passions, as strong tendencies towards 
 particular objects or pursuits; and we hear, in common 
 speech, of the power of these passions, and the force of 
 these instincts. Hence it has been urged, in contradiction 
 of the free will of man, that these passions and instincts 
 have the power of controlling us; and that a being thus im- 
 pelled, cannot be said to be the lord of his will. Without 
 dwelling much on this objection, which, if true, saps the 
 very foundation of morals, it is sufficient briefly to explain 
 what is meant by the free agency of man; and this brief 
 inquiry will, of itself, it is hoped, suggest the reply, and 
 assure us that we are not less free agents, and morally re- 
 sponsible beings, because we are affected by instincts, in- 
 clinations and passions. Will is that power of the soul 
 by which it selects the objects of its action, its passio?i, 
 and its thoughts, and which leads it, when we speak of 
 morals, to the selection of what ministers to its happiness 
 or its ill. In the whole scope of metaphysical research, 
 there is perhaps no subject which has been more elabo- 
 rately disputed than the one before us. It is far from my 
 design to enter into an examination of the arguments inge- 
 niously suggested in opposition to man's free agency; but a*
 
 Lect. I.] NATURE OF MAN. 47 
 
 the point is too important, as regards the obligation, no less 
 of human than of divine law, to be passed over in silence, I 
 shall take a hasty survey of the controversy, and refer the 
 student to ample sources of information, which he may 
 consult at leisure. 
 
 Whatever skill and subtlety have been exhibited in dis- 
 puting; this doctrine, every rational man is apt, very early 
 in the inquiry, to appeal to his own consciousness of the 
 freedom of his will, and to feel great reluctance in aban- 
 doning that firm and safe foundation, to wander on the sea 
 of argument. It is true, indeed, that several learned and 
 profound thinkers, among whom is Mr. Collins, have de- 
 nied to man this very consciousness which I have assumed. 
 But as most men would be apt to pay more respect to 
 their own experience than to Mr. Collins' reasoning; and 
 as it would be unsuited to the object of such elementary 
 inquiries as ours, to enter into metaphysical arguments 
 on such a point, I shall continue to regard it as a fact, 
 that every man is conscious that he is a free agent, or, 
 in other words, that he knows and feels that 'he can 
 act if he will, and forbear if he will/ which is Hobbes's 
 own definition of free agency. This doctrine, that every 
 man is conscious of a liberty to choose and direct, in all 
 conceivable situations, though passions may sometimes gain 
 the ascendency, and lead him astray from his purpose, is 
 one which Collins saw the necessity of endeavouring to 
 refute, and therefore is it, that he boldly assumed the re- 
 verse position, and contended that the consciousness was, 
 that man is not a free agent. This issue of fact, however, 
 cannot be settled, and perhaps need not be, if we adopt the 
 idea of the celebrated Kant, that every one who conceives 
 himself to be a free agent, is rendered, by his own belief, 
 a moral and accountable being, although he be in fact a ne- 
 cessary agent.
 
 48 OP THE ORIGIN AND [Lect. I. 
 
 It is now proper that we advert to the distinction exist- 
 ing between Will and Liberty, words too frequently con- 
 founded, and the difference between which is certainly, 
 very nice. Locke defines Will to be that faculty of the 
 soul by which it begins or forbears, continues or ends, any 
 action of the mind or of the body, merely by a thought or 
 preference of the mind; it consists in the power of prefer- 
 ring to move, or not to move the body, to exert, or not to 
 exert the mind. Liberty, on the other hand, does not be- 
 long to the will, but to the person having the will; he has 
 the power or liherty to execute the will or not, as he 
 pleases. I confess this appears to me a very u n satisfactory- 
 statement of the distinction. If the will be free, as I ad- 
 mit it to be, and this consists of a power of preferring one 
 thing to another, this preference, when made, is a volition, 
 or, as it is sometimes called, a judgment, pronounced by 
 the will. — If liberty, then, be equally free, that is, if we 
 have the power to execute the volition or not, as wc 
 please, and do accordingly execute it, or decline so to do, 
 all that can be said is, that when we have executed the vo- 
 lition, we have only done that which we would have done 
 had there been no liberty. If we have not executed that 
 volition, then we have merely formed a new volition, and 
 executed that. I cannot, therefore, see the least necessity 
 for the distinction between volition and liherty, if it is to 
 be considered in this point of view. If this be the only 
 mode in which we are to regard the subject, I would say 
 that the will is free, but that there is no such thing as liher- 
 ty distinct from freewill, because we have no power to re- 
 fuse to execute the will; and that in all cases where liberty 
 appears to have been exerted, it is nothing more than the 
 formation of a new will, or rather volition, and the execu- 
 tion of that second volition. The will is a faculty, but 
 when it is exerted by volition, that very volition is itself 
 an execution of the will, and excludes ail libertw I cannot
 
 Lect. I] NATURE OP MAN. 49 
 
 will to walk, (having the physical power to do so) unless I 
 do walk. 
 
 I may, indeed, desire to walk, and have no physical 
 power to do so; and so I may will to walk at a future pe- 
 riod, having the present ability to walk; but if I really de- 
 sire in prsesenti to walk, or rather will to walk, having the 
 present faculty, I inevitably execute the act of walking. 
 I admit that volition, or the mere act of willing, is one 
 thing, and the physical performance another; but whether 
 the thing willed be a mental or a physical operation, it is 
 performed in the very act of willing. If I will to do a fu- 
 ture act, the will is so far forth executed, and when the 
 future act comes to be performed, it is the physical execu- 
 tion either of the continued will, or of a new one, founded 
 on new or additional motives. It appears, therefore, that 
 freedom of the ivill expresses overy thing that is intended, 
 without the word liberty; and, consequently, that there is 
 no occasion to speak of will and liberty as distinct faculties, 
 one being a general desire for a good, the other a faculty 
 of suspending the will, until we are better satisfied that 
 the thing desired is really for our good. Both of these 
 operations are, we think, emhraced by the freedom of 
 will. We never do will what is impossible, though we 
 may desire it. If the will be free, it is equally free to 
 act after it has willed; freedom of will includes liberty of 
 action; or, in other words, willing cannot be distinguish- 
 ed from acting, since acting is necessarily consequent 
 upon willing, if the agent, at the time, possesses the phy- 
 sical ability to act. The mind never does will an impossi- 
 bility ex naturd; but it may well will what is possible to 
 be done, though it be impossible to be done by the person 
 who wills, merely in consequence of a physical impediment 
 of which he was not conscious. The moment he becomes 
 fully conscious of the physical defect, he may desire, but 
 he cannot will to do the act. 
 7
 
 30 
 
 OF THE ORTGIN AND [Lect. I 
 
 The mere faculty, then, is one thing, the volition is ano- 
 ther. But when will and liberty are attempted to be dis- 
 tinguished, we should only contrast the mere faculty of 
 will, with the mere faculty of liberty, in which case, all 
 that it can mean is, that as the faculty of will is perfectly 
 free, it has the liberty or power of calling on the judgment 
 to assist it in its determinations. But even in this sense, 
 there is no utility in the word liberty. Jt appears to us 
 that the distinction attempted to be maintained, arose from 
 confounding the will, considered as a faculty, with the 
 judgment summoned to its aid to produce a volition. If 
 by liberty is meant the power of acting contrary to the 
 will, or to a volition, which is the act of the will, no such 
 power, we think, exists; but if by liberty be meant the 
 power of acting contrary to the dictates of the judgment, 
 it certainly does exist. Will, then, or volition is one 
 thing, liberty is another, having nothing to do with the 
 will, but much to do with the judgment. It is true that 
 liberty can be predicated only of a being endued with will; 
 but we cannot understand Mr. Dugald Stewart, when he 
 says that it is the province of liberty to execute the will, 
 and that it relates to the will only after it is formed. To 
 say that liberty executes the will, appears to us to be wholly 
 without meaning, since a mere faculty cannot be executed. 
 If, on the other hand, it means that it is the province of 
 liberty to execute the acts of the will, thai is, its voliti 
 it appears to us equally unmeaning, as the volition is i 
 a thing executed, and not in Jieri. The will, as 1 have 
 before said, is a mere faculty; a volition is the determina- 
 tion or decision of that faculty. The volition, then, is a 
 completely executed act of the will; being executed, thi re 
 is no deviating from that volition. The will may again 
 act, and the new volition may reverse the effects of the fust, 
 but it cannot recall the first. So, again, we should ('istin- 
 guish between judgment and volition; liberty will enable
 
 Lect. I.3 NATURE OP MAN. 51 
 
 us to execute our judgments, or to disregard them; but 
 liberty can never enable us to disregard our volition, for 
 that being past, is irrevocable. All, then, that we mean 
 bv objecting to the use of the word liberty, as applied to 
 the will or volition, is simply to express our opinion, that 
 the doctrine of liberty has been erroneously applied to the 
 will, instead of the judgment. But passing over this, we 
 will speak of the will, and of liberty, as they are generally 
 understood. Malebranche defines will to be the impression, 
 or natural motion, which carries us towards good indeter- 
 minately, and in the general, and says that liberty consists 
 in the power which the mind has to direct this general im- 
 pression towards some particular object. Now, in this 
 account of the matter, the learned Father appears to give 
 freedom to liberty, but to deny it, in a great degree, to the 
 loill. Mr. Locke also, without intending it, seems to 
 make the acts of the will rather necessary than free, when 
 he says that the will is always determined by some, and, 
 for the most part, by the most pressing uneasiness, or de- 
 sire of happiness. Others have held the same doctrine; 
 for, say they, 'it is not in the power of the will not to de- 
 sire to be happy.' If will be that faculty of the soul by 
 which it is urged of itself, in virtue of an instinctive prin- 
 ciple inherent in its nature, to seek for what is agreeable 
 to it, to act after a certain manner, and to perform, or to 
 omit an action, with a view to some good; and if liberty be 
 that faculty of the soul by which it regulates its actions as 
 it pleases, without regard even to the dictates of judgment, 
 and suspends, continues or modifies its thoughts and opera- 
 tions, either in affirmance, or in disregard of previous 
 judgments; it follows that actions are divisible into volun- 
 tary and involuntary, necessary and free. Those actions 
 are denominated voluntary and involuntary, which concern 
 the will; whilst such as concern liberty, are called free and. 
 necessary. All free actions are, of course, voluntary, but
 
 52 OF THE ORIGIN AND [Lee -t. 1 
 
 all voluntary actions are not free. Where the action, though 
 voluntary, is not a free one, it is manifest that the action 
 has been willed or performed after a judgment formed by 
 the mind upon all the motives for and against the act. On 
 the other hand, where the action is both voluntary and free, 
 these conflicting motives do not present themselves; there 
 is no occasion to invoke the judgment, but the act of will- 
 ing is, in such case, nearly instantaneous. If, for example, 
 we are awed by fear, or respect for authority, and induced 
 thereby to commit an act which was condemned by our 
 conscience or judgment, the act is voluntary, but not free. 
 Our will has prompted the action, after some contest be- 
 tween the conflicting inducements; but our liberty of choice, 
 or willing, was under restraint. We have, nevertheless, 
 chosen what perhaps our judgment pronounced the less of 
 two evils; we have avoided the present evil, and taken 
 chances for that which is future. At the very first, our 
 conscience or judgment assured us, that the required act 
 was mulum in se, or malum prohibitum; but we have 
 weighed our notions of the several penalties, present or 
 future, which may be attached to the commission or omis- 
 sion of the act, and we form a second judgment, erroneous 
 perhaps, and do the act. This class of actions has received 
 the name of mixed actions, because they arc partly volun- 
 tary, and partly necessary. 
 
 The arguments in favour of the doctrine of necessity, arc 
 to be found in the writings of nearly every metaphysical 
 author. The champions in favour of necessity have been 
 among the most distinguished philosophers of ancient and 
 modern times. Yet as to the immoral tendency of the 
 theory of necessity, there can be little doubt, though Col- 
 lins, Hume and others have vehemently contended that it 
 is not only consistent with sound and practical ethics, but 
 the only one which is really so. Viewing the subject as a 
 mere matter of argument or demonstration, we ate
 
 Lect. I.] NATURE OF MAN. 53 
 
 own that we cannot perceive that either party has gained 
 a decided victory. But, at the same time, the advocates 
 of free will have, as we before stated, two reasons for its 
 adoption which we contend do not belong to the others. 
 The first is, says Reid, 'a natural conviction or belief that 
 we do act freely, a conviction so early, and so universal, 
 that it must be the result of our constitution, and the work 
 of him that made us.' This, I contend, is the common sense 
 of all nations, and of all individuals. Every human being 
 practises upon this opinion; we all feel that we are free 
 agents; we believe that we can will to act, or to be still; 
 to walk, sleep, read or contemplate. We can add fuel to 
 the flame of our passions, or at once extinguish it. The 
 most poignant grief may be subdued by our conscience or 
 reason, and all the powers of ineffable wit and humour 
 shall not excite even a smile, or a mental emotion, if we so 
 will it. If these be facts, they oppose a powerful battery 
 against all that can be urged by the ingenious reasonings of 
 the sceptical metaphysician. 
 
 The second ground which gives superiority, we think, 
 to the doctrine of free agency, independently of mere ar- 
 gument, is, that it is a more salutary opinion than that of 
 necessity. We agree with Dr. Reid, that 'if the terms 
 
 MORAL OBLIGATION and ACCOUNTABLENESS, PRAISE and 
 BLAME, MERIT and DEMERIT, JUSTICE dlld INJUSTICE, RE- 
 WARD and punishment, wisdom and folly, virtue and 
 vice, be applied to the system of necessity, they are im- 
 properly used, or should have new meanings given to them 
 when used in religion, in morals, or in civil government; 
 for, upon that system, there can be no such things as they 
 have always been used to signify.' 
 
 On the other hand, mere free agency does not in se 
 create moral obligation or accountableness; we must add 
 to this an actual sense or knowledge of the distinction 
 between right and wrong. Our first parents, before their
 
 54 OF THE ORIGIN AND [Lect. I. 
 
 violation of the only law that was given them, were as 
 much free agents as afterwards; but consequent upon their 
 transgression, was an unlimited knowledge of the differ- 
 ence between virtue and vice, right and wrong; and from 
 that moment only, we presume, were their actions imputa- 
 ble. So, mere animals, to whom this single law was never 
 given, are free agents, but, having no knowledge whatever 
 of the distinction between right and wrong, their acts are 
 not imputable to them. So that whether animals are en- 
 dued with a limited reason and intelligence, or not, they 
 eannot be supposed to be responsible merely because they 
 are free agents. Man, therefore, is not a moral and re- 
 sponsible being, subjected to divine and human laws, be- 
 cause he is a free agent, but because he likewise knows the 
 difference between vice and virtue, between actions which 
 are mala in se, and those which are merely mala p?'ohi- 
 bita. 
 
 We shall close our brief and desultory remarks on free 
 will and necessity, with some notice of the singular doc- 
 trines of the German philosopher Leibnitz, who denies, not 
 only the possibility of mans' free agency, but would bind 
 Deity himself with the same eternal chain. For this pur- 
 pose he has invoked, in a wordy jargon, what he calls, first, 
 the 'principle of the sufficient reason;' secondly, 
 the 'law of continuity;' and thirdly, the doctrine of 
 'pre-established harmony,' A brief account of each of 
 these will be sufficient for our purpose. 
 
 By the principle of the sufficient reason, Leibnitz ap- 
 pears to mean that nothing can happen without a reason 
 why it should be so, rather than the contrary, or, in other 
 words, that every thing which exists has its reason for 
 thus existing, and that it is incapable of having any other 
 reason. This simple position appears both plausible and 
 unobjectionable; but the inferences deduced by him from
 
 hect. I.] NATURE OP MAN. 55 
 
 it, and his extraordinary application of the doctrine, form 
 the subject of complaint. 
 
 Under the auspices of the doctrine of a sufficient reason, 
 he argues that it was not in the power even of Deity to 
 create or fashion two things exaetly alike. This he infers, 
 after stating that the mind is guided in its volition by the 
 most apparent good; so that it would be impossible to 
 make any choice between things entirely alike, nor would 
 it be possible that things of this like kind, which he calls 
 'indiscernibles,' could ever have been created. Under the 
 same auspices, he of course infers the necessity of man's 
 actions, because no action can take place without a motive, 
 and no motive will produce an effect, unless it be a suffi- 
 cient motive or reason. From the same source he derives 
 his demonstration of the existence of a God; also his argu- 
 ment against a vacuum, which he rejects merely because 
 the parts of such vacuum must be alike! Under the gui- 
 dance of this convenient magical phrase, he also discarded 
 the atomic philosophy, and introduced his monads in the 
 stead of Des Cartes' particles of matter, which, as they 
 must be like each other, did not agree with the distinguish- 
 ing features of his philosophy. He therefore made his 
 monads consist of principles, endued with appetites, and 
 perceptions of an indefinite variety! 
 
 It is manifest, from what has been said of this much 
 vaunted sufficient reason, that it is the offspring of a mind 
 given to such continued and deep reflection, as to have be- 
 come morbidly imaginative. If there is much plausibility 
 in some of his views on the doctrine of sufficient reason, 
 its general error and futility are so manifest as to require 
 no comment from us. Such whimseys of a learned mind, 
 and ardent imagination, are entertaining enough, when 
 we desire to be entertained; but when they assume the 
 names of grave science, and of sound philosophy; when 
 they are taught to us by a reformer who would raise
 
 56 OF THE ORIGIN AND [Lect. I. 
 
 himself upon the ruins of a popular, though equally ab- 
 surd philosophy; they become rather disgusting than 
 otherwise, and bid us unite with Bolingbroke in the in- 
 quiry, 'Is it worth while to gain the name of a philoso- 
 pher, at the expense of amusing mankind with such hypo- 
 thetical extravagances?' 
 
 The second principle which Leibnitz summoned in aid 
 of his views of necessity, is what he called the law of 
 continuity. Availing himself of the too popular tentlen- 
 cv of men to he carried away by terse phrases, and uncur- 
 rent words, he on this, as well as the former occasion, 
 throws around his principle a little vagueness and mystery, 
 by the use of formal and unknown expressions. Had the 
 principle of 'the sufficient reason,' and the law of 'continu- 
 ity,' been expressed without a set form of words, and in 
 their mere naked meaning, it is quite possible they never 
 would have made as distinguished a figure in the books, or 
 have been in the mouths of as many, as we find them. V>y 
 the law of continuity Leibnitz means, that there is a fixed 
 concatenation subsisting between all existences, events 
 and truths: that every thing, physical as well as moral, that 
 exists, ever did exist, or ever shall exist or happen, is 
 thus connected. From this supposed law of continuity, he 
 and his disciples deduce a variety of startling positions in 
 morals, phy sicks and metaphy sicks; such as, that there is 
 in nature a scale of gradual descent from Deity to the sim- 
 plest particle of unorganized matter; that the whole of this 
 vast scale of the universe admits not of the least saltus 
 nor chasm; that perfectly hard bodies cannot exist in na- 
 ture; that, any body, in changing its state of motion or 
 rest, passes through all the intermediate degrees of veloci- 
 ty; that the soul is necessarily an ever active and thinking 
 principle; that the vulgar notion of death is impossible to 
 be true; that all of nature's operations are effected by infi- 
 nitely small degrees, that is, according to the law of an tin-
 
 Led. I.] NATURE OP MAN. 37 
 
 broken continuity, which never violates the maxim assumed 
 by them, viz. 'quod natura non operatur per saltum.' All 
 these deductions from the law of continuity have been 
 commented upon, and satisfactorily refuted by several able 
 writers. We need not advert to the arguments on either 
 side, as it would lead us beyond our prescribed duty; but 
 we will briefly remark that Maupertuis, in a very few 
 words, has shown the fallacy of the very principle and 
 maxim on which the entire doctrine is based. If actual, 
 though i nfinitesimal changes be admitted, then is the law of 
 continuity a mere chimera; for, as Maupertuis in substance 
 remarks, the law of continuity is no more violated by a 
 sudden, and tremendously visible destruction of the uni- 
 verse, or any part thereof, than by changes ever so imper- 
 ceptible to our senses, but actual and finite. It is ma- 
 nifest that this doctrine of continuity makes God's sub- 
 lime universe a vast machine, regulated in all its motions, 
 by its own intrinsick principles, and, at this time, wholly 
 independent of Deity; as tnuch so as the movements of a 
 clock are certain, and wholly independent of the will of the 
 mechanist. It also regards the actions of all organized be- 
 ings, as the mere results of fixed mechanical evolutions. 
 Vice, in this system, is necessary and pre-ordained; and so, 
 likewise, is virtue: man is a mere automaton, no less in 
 the operations of his mind, than of his body: merit and 
 demerit, gratitude and ingratitude, honesty and dishonesty, 
 love and hatred, and, in short, all that we admire, and all 
 that we abhor, are equally the result of the unerring laws 
 of continuity. So odious a doctrine cannot be true. The 
 irresistible dictates of conscience and reason, (when not per- 
 verted by vice, or an overweening love of theory, and the 
 being wise beyond what is written,) assure us that neither 
 the principle of the sufficient reason, nor the laio of con- 
 tinuity, ever had existence except in the mind of its eru- 
 dite, but misguided author. 
 8
 
 58 OF THE ORTGIN AND [Lect. I. 
 
 Thirdly. The doctrine of Pre-established Harmony in 
 a figment from the same source; and its design, and general 
 nature, are the same with those of the other two, viz: to sus- 
 tain the theory of necessity, by establishing a fixed and me- 
 chanical universe, in which every mental and physical opera- 
 tion is the result of the certain action of the great machine. 
 This doctrine of pre-established harmony was advanced by 
 its learned author, (in furtherance of the doctrine of ne- 
 cessity,) for two main purposes; first, to account for 
 the union or communication between the soul and body; 
 and secondly, to account for the apparent communication 
 between the kingdoms of nature and grace, by establishing 
 this harmony between them, so as to make a correspondence 
 between physical evil, and moral evil. 
 
 The opinion of philosophers, both ancient and modern, 
 in regard to the first, was that the soul and body do actu- 
 ally operate reciprocally on each other. Des Cartes was 
 the first who denied this real union, and contended that 
 the connexion is only apparent: in which God is ever the 
 mediator. Leibnitz, in no degree approving of the former, 
 and only partially, if at all, of the latter, advanced a third 
 hypothesis, in his celebrated doctrine of pre-established 
 harmony, in which he states that a soul is an entity hav- 
 ing a fixed series of thoughts, desires, emotions, volitions, 
 &c. and that a body is nothing else than a machine having 
 also a prescribed number, or fixed series of motions &.c. 
 admirably and perfectly correspondent to the chain of 
 thoughts, desires, emotions &c. of the soul. Hence, ac- 
 cording to this theory, the soul and body do not corres- 
 pond because they are united, but they are united because 
 they correspond, by reason of a harmony existing antece- 
 dently to, and wholly independently of their union. Thus 
 it is that, if there be an invariable correspondence between 
 the whole series of a soul, and the whole series of a body, 
 a man is thus produced; or, rather, God has brought them
 
 Lect. I.] NATURE OP MAN. 59 
 
 together, not by actual contact or union, not by their oper- 
 ating at all on each other, hut that the perfect harmony of 
 the previous relation of the two, has thus associated to- 
 gether all the souls and bodies which have ever existed, 
 and will continue thus to associate all that ever will exist. 
 Under the auspices of this theory, we presume that Leib- 
 nitz would have accounted for the various degrees of 
 intellect or intelligence in the world, from a Newton or 
 Locke, to the poor idiot to whom nature hath denied near- 
 ly all harmony between his soul and body! He supposes 
 that it is a mere illusion that the body affects the mind, or 
 the mind the body; that the relation is only ostensible; 
 that the harmony which perpetually existed, is only mani- 
 fested to man, when the soul and body are associated by 
 being called into existence. The harmony is so perfect, 
 that the body moves at the very instant the mind wills, 
 but still without the least relation of cause and effect. 
 This theory has been beautifully illustrated by Leibnitz 
 himself, by Dugald Stewart, Mr. Jaquelot and others. The 
 pre-established relation has been compared to two clocks, 
 so contrived, though wholly independent of each odier, 
 that when one points the hour, the other shall strike it, at 
 the very punctum temporis. It has been still more forci- 
 bly illustrated by the example furnished by Jaquelot, 
 which is recorded by Leibnitz, and is thus stated by Du- 
 gald Stewart. 'Suppose an intelligent and powerful being, 
 who knows, beforehand, every thing that I should order 
 my footman to do to-morrow, should make a machine per- 
 fectly to resemble my footman, and exactly to perform all 
 day, whatever I directed. Would not my will, in issuing 
 ail the details of my orders, remain, in every respect, in 
 the same circumstances as before; and would not the ma- 
 chine footman, in performing the different movements, 
 have the appearance of acting only in obedience to my 
 command?' Both these examples, there can be no doubt,
 
 60 OF THE ORIGIN AND [Isd. I 
 
 not only clearly illustrate the theory, hut render it suffi- 
 ciently plausible for the mind to assent to its possibil- 
 ity. But were all possible theories, even in any degree, 
 countenanced, we should have many Universe-makers, 
 whose works, however, when they came to be a little 
 more closely inspected, would' be found to be but miser- 
 able and bungling attempts. The absurdity of this the- 
 ory, however, was too glaring to deceive even the zea- 
 lous infidel, and has never been regarded as more than an 
 amusing philosophical bauble, ill adapted to its momentous 
 object. The brief notice of it by Lord Bolingbroke, is only 
 to expose its folly. We give it in his own words. 
 'Bounce felt pain when he was kicked, if Bounce was ever 
 kicked: and so he would have felt it, if he had had DO body 
 at all, at that moment. A fair day invited you to walk 
 in your garden, Bounce followed after you, and so you 
 both would have done, if you had had no souls at all.' He 
 then aJds, 'This hypothesis gives me no honor, but every 
 time it comes into my thoughts, I laugh as if I were at a 
 puppet, show.' 
 
 Notwithstanding these three much spoken of theories are 
 wholly mechanical, Leibnitz disclaims being a materialist. 
 Necessity and materialism usually go together, but are 
 not consequent upon each other. The free agency of man, 
 and his accountability, are doctrines too important, we trust, 
 to be resigned by any one, for such absurd creations of the 
 brain as those of pre-established harmony, the law of con- 
 tinuity, and the principle of the sufficient reason. A the- 
 orist who would represent an eternal geometrician as inces- 
 santly occupied in the solution of tiie problem, 'The state 
 of one monad being given, it is required to determine the 
 past, present and future state of the whole universe,' 
 must excite our admiration at his fancy, but ought not long 
 to perplex us on a point so vital to morals and religion, as 
 that, of man's free will. In concluding our remarks on
 
 Lect I.] NATURE OF MAN. 61 
 
 these opinions of Leibnitz, we have occasion again to refer 
 to Bolingbroke, whose mind, by the by, is much preferable 
 to his morals, and who justly remarks of erroneous theories 
 generally, that 'The authority may be great, but the great- 
 er it is, the more strongly do these examples of error show, 
 how little the greatest, how absurd the wisest, how igno- 
 rant the most learned of men become, when they presume 
 to push beyond the bounds that God hath set to human in- 
 quiries.'* 
 
 (7.) Man's actions Although the establishment of man's 
 imputable, or not. f ree agency does not, of itself, make him 
 morally responsible for his actions; yet, did we deny him 
 liberty of thought and action, we should not know on what 
 basis to found the imputability of his actions, and, indeed, 
 should be compelled to admit that there can be no such 
 thing as moral obligation. A being, the subject of an un- 
 controllable fatality, and yet responsible for his actions, is 
 a monstrous and incomprehensible notion. Such a being 
 would be capable of neither virtue nor vice, and conse- 
 quently entitled neither to reward nor punishment; all 
 ideas of praise or blame must be given up, and man, instead, 
 of remaining the paragon of animals, would become, under 
 the influence of such a doctrine, more savage than the wild 
 beast, more miserable than any other creature in existence. 
 To suppose the soul to be a particular subject on the one 
 hand, and passion a motive power on the other, originally 
 and directly communicated by heaven, and ever acting 
 with a force proportioned to its own quantity; is reasoning 
 indeed from the known laws of matter, but in opposition, 
 we apprehend, to the equally known laws of the mind. A 
 power to choose, and a dependence for felicity on the choice; 
 a power to decide, and a responsibility for the decision; a 
 power to avoid and pursue, and two goals to be sought or 
 
 *5 Boling: Works, 364.
 
 62 OF THE ORIGIN AND [Led. I. 
 
 avoided; appeal' to be correspondent and accordant ideas, 
 fall in with the natural feeling and belief of the human 
 mind, and constitute the foundation of all human institu- 
 tions, as well as of that imputability of action which forms 
 man's relation with the author of his being. and the only sanc- 
 tion of the natural law. Take away this principle, and you 
 take away the necessity of a discerning intelligence; you 
 destroy the responsibility to heaven, the difference between 
 the loveliness of virtue, and the odiousness of vice, between 
 honour and disgrace; and you abstract the motive to that 
 incessant activity by which we are constantly urged either 
 to obtain the esteem, or to shun the contempt of our fel- 
 lows; in short, you cast into utter confusion the whole sys- 
 tem of human society. 
 
 From the doctrine of the imputability of our thoughts 
 and actions, the following important obligation seems ne- 
 cessarily to result, and to stand pre-eminent in the class of 
 our duties; viz. to cultivate with assiduity all the functions 
 of the mind, and to preserve in health and vigour all the 
 powers of the body, since it is by their united action that 
 man becomes useful in every condition of life. 
 
 Hence is it that the compound nature of man renders it 
 particularly important that the jurisprudent, whose science 
 is based on sound morals, should make himself well ac- 
 quainted with man's physical and mental constitution. 
 It is from the intimate connexion between mind and bod}-, 
 that men so often differ in their judgment on the same 
 subject; for though morals be ever the same, education, 
 both physical and intellectual, has great sway in rendering 
 more or less acute our moral and mental perceptions. 
 Whatever theory be adopted in regard to the connexion 
 between the soul and body, all must agree in the fact, that 
 the mind is capable of indicating itself only through the 
 medium of the numerous organs or vehicles of the body. 
 If they be perfectly organized, and in a state of healthy
 
 Lect. I.] NATITRE OF MAN. 63 
 
 action, the mind will be advantageously displayed, and will 
 indicate itself as a sound and vigorous understanding: 
 whereas, if the organization of the body, especially of the 
 brain and nervous system generally, be not perfect, or, 
 from supervenient causes, be thrown into disarray, the 
 mind will manifest itself either with feebleness, or with ir- 
 regularity. Not that the mind itself is capable of injury or 
 of disease; for this, we believe, can never be the case; but 
 simply that its outlets, or organs of communication, have 
 become disordered, or were originally imperfect. Hence, 
 as we think, a man of genius, or of vigorous intellect, dif- 
 fers from one of plain intelligence, only in the greater per- 
 fection of bodily organization. Though mind be altoge- 
 ther different from body or matter, (for we differ toto cash 
 from all materialists,) yet we cannot but regard all minds as 
 essentially the same. God may have given to one man a 
 greater talent than to another; but he has created the differ- 
 ence by giving him the ability to display advantageously his 
 mind, through organs more perfectly adapted for that pur- 
 pose, than those of another. If, therefore, one man be supe- 
 rior by nature to another, it is not because God has created 
 one mind superior to another, but that he has endued that 
 man with a superior organization; one, indeed, which may 
 perhaps for ever escape the scrutiny of the phrenologist, 
 which eludes the anatomist and physician, and which 
 may often be found equally in the small and feeble body, as 
 in the large and vigorous. We often indeed hear of men- 
 tal, as well as of bodily diseases. Leibnitz admitted them 
 both; but contended that the soul and body, not being uni- 
 ted, are wholly incapable of diseasing each other. Hence, 
 according to Leibnitz, if the body be diseased, it could not 
 in any degree affect the pre-established harmony of mental 
 thoughts, desires &c, and so, e converso. He, however, 
 gets over the difficulty, we presume, by supposing that dis- 
 ease .itself, both of body and mind, is pre-established, and is
 
 64 OF THE ORIGIN AND [Lect. I. 
 
 only a part of the necessary evolutions of each. We have 
 presumed to doubt the possibility of mental disease, and 
 agree with Leibnitz in one respect, viz: that tlae mind can- 
 not be diseased by the body; but we cannot agree that the 
 body may not be thrown into disarray by the mind. When 
 the mind appears to be diseased by the body, it is, we appre- 
 hend, nothing more than that the mind has been compelled 
 by the disorder of the body to manifest itself through dis- 
 eased or unfit channels, which gives to us the appearance 
 of a diseased mind. But, porting with this point, it is cer- 
 tain that the legislator, the judge, and the jurist should ne- 
 ver disregard the physical character of nations, or even of 
 individuals. They should be acquainted no less with the 
 philosophy of physicks, tnan that of morals. The map of 
 human nature should be minutely studied; and all its ano- 
 malies should be as accurately known to them, as are its 
 harmonies and regularities. 
 
 The doctrine of Temperaments, which distinguishes men 
 into five classes, may sometimes lead to error; but, with a ju- 
 dicious mind, it may be advantageously used. 13y tempera- 
 ments we mean that classification of mental propensities 
 which has been adopted in almost every age and country, 
 since the days of Hippocrates, and which arranges under five 
 divisions, all the striking peculiarities oridiosyncrasies which 
 have been manifested by individuals. These are now said 
 to be the following, viz: bilious or choleric; atrubiliury 
 or melancholic; sanguineous or ardent; phlegmatic or 
 dull; and nerruus or irritable. It is obvious that all these 
 names have been taken from those of certain secretions of 
 the human body, with which these temperaments are sup- 
 posed to have an essential connexion. That men are often 
 found of these various dispositions, and that individuals 
 may generally, in some degree at least, be assigned to one 
 or the other of these classes, there can be little doubt. It 
 would be foreign to the course I have prescribed to my-
 
 
 Lect. I.] NATURE OF MAN. 65 
 
 self, were I to enter into an explanation of this doctrine, 
 or furnish examples by which it might be strongly illus- 
 trated. Biography and history are full of them, and the 
 works of the physiologists amply set them forth, with all 
 that has been hitherto known upon the subject. To these 
 we must, therefore, refer the student. A neglect of this 
 knowledge, and of other subjects pertaining to man's na- 
 ture, has often led, we doubt not, to injustice in the making 
 and expounding of laws. 
 
 (S.) Society, go- From what has been stated we infer 
 Ternment. religion, . 
 
 and knowledge con- that man without society, government, 
 
 genial to man, and re lipn 0n ari( J knowledge, would be a very- 
 essential to his hap- 
 piness, helpless and miserable being; and per- 
 haps less capable of self-protection, and the procurement of 
 physical comfort, than any other animal. It is chiefly from 
 association, the comparison and collision of opinion, recip- 
 rocal assistance, and division of labour, that man has mani- 
 fested himself to be 'noble in reason,' and 'infinite in facul- 
 ties.' We have seen that man is a social and sympathetic 
 being, as strongly drawn to society, as to the pursuit of 
 mere individual gratification: he has a fund of sensibilities, 
 and a set of passions, which cannot be poured out, except 
 in the assembly of his fellows. He is also, as we have 
 shown, a rational being, endued with the curiosity to ex- 
 plore, and the capacity to understand; and surrounded, on 
 all sides, by objects adapted to excite his curiosity, and to 
 delight his reason. He also possesses a sense of the beau- 
 tiful and deformed in morals, which at once makes him a 
 judge of the actions of others, and a competitor for their 
 praise; whilst his conscience enables him to pass sentence 
 on all his own thoughts and actions. United to all these, 
 and controlling all, he has a choice and will which are 
 to direct him, both in the pursuit of material good, and in 
 the avoidance of moral evil : and it is evident that none
 
 gy OF THE ORIGIN AND L L tcl - '• 
 
 of these various objects can be pursued, in a degree propor- 
 tioned to Ins capacities and inclinations, except in Society. 
 
 But these social affections, also, would have a narrow 
 range, were they confined within the hut of the savage 
 hunter, or even the small horde of uncultivated communi- 
 ties. Man's curiosity for knowledge would be mightily 
 restricted, were it daily interrupted by the calls of physical 
 necessity. The variety of talents and capacities observable 
 in man, would he absolutely thrown away, were they con- 
 fined to the same kind of pursuits by the similarity of im- 
 mediate necessities. It is curious to think that the suhtlety 
 of o-enius which led a'Locke into the recesses of the human 
 mind, might, in the savage state, have been wasted in spe- 
 culations on the game he pursued, or the animals which he 
 tended; and the faculties of an Archimedes have be* 
 hausted in the structure of a bow. It is impossible, in 
 short, to conceive a full theatre for the powers of man, or 
 subjects sufficient for his diversified capacities, excep in 
 the situation of a well governed community, when the 
 pursuits are selected with reference to the peculiar endow- 
 ment of the individual, and where the care of providing 
 sustenance, and comfortable habitations, is left to the more 
 common minds, while the better intellects are left to gen- 
 eralize, to reason, to combine, and to supply their own na- 
 tural wants, by ministering to what have been called the ar- 
 tificial wants of society, but which are, in reality, the same 
 natural wants and pleasures, elicited by a different situation, 
 and called out in the regular progress of the mind. 
 
 (9. What is meant While men are thus compelled to soci- 
 
 by the natural equal- e jy an( | j ts consequences, by the eharac- 
 
 ity ol man; and of 
 
 the nature of mora] ter of their moral and physical nature, 
 
 obligation. they bring with them passions and pro- 
 
 pensities which, however they may tend towards general 
 good, still require much control. Before man came to feel 
 his own individual insufficiency to minister to his nujner-
 
 Lect. I ] NATURE OP MAN. 67 
 
 ous wants, he stood in creation free and independent of 
 every other heing. Hence, in this state of man, that is, in 
 the state in which he may be supposed to be, independent- 
 ly of all society and government, all men were equal. 
 Such a state of nature, and absolute independence, import 
 the same thing. In this supposed condition, they h.re 
 equal rights to life, to food and shelter, to the products of 
 their labour and their skill. The transition of man from 
 this state of absolute freedom, to the state of society and 
 laws, necessarily implies a relinquishment of a portion of 
 this freedom. 
 
 Whatever riffhts he retains after he becomes a member 
 of society, are denominated his natural rights, and in re- 
 gard to these, all men still continue to be equal, in the same 
 degree as they were in a state of nature. But even in a 
 state of nature, the inequality of mental and physical en- 
 dowments produced a correspondent inequality in the hap- 
 piness, and actual condition of individuals. They laboured 
 with various success, and the powerful in body and mind 
 must have made their own condition much superior to that 
 of the weak. It may be inquired then, why should this 
 inequality be continued after the establishment of society, 
 and why should government, which is designed for the 
 perpetuation of the comfort of man, so often involve the 
 perpetuation of the evils, and resulting inequalities of the 
 primitive state? The solution of this question is by no 
 means difficult. The natural equality of man is in reality 
 the same in society as in a state of nature, in regard to all 
 those rights which in the main are essential to his happi- 
 ness. He has relinquished to the society a portion of his 
 natural liberty, in exchange for the publick protection, and 
 various facilities which he otherwise would not have pos- 
 sessed. What he has given up, is only for his own happi- 
 ness; and though the system of society is often a system of 
 considerable sacrifice, yet, on the whole, it results in an
 
 6S 
 
 OP THE ORIGIN AN» [Lect. I. 
 
 increase of felicity. Government never was, nor could 
 have been, designed to supply all the insufficiencies of in- 
 dividual character. The indolent, ignorant and vicious 
 would then be the sole gainers by society; for no system 
 of government could have made all men equally zealous, 
 industrious, intelligent and virtuous: these are therefore 
 matters which, from necessity, must be permitted to remain 
 in their original state. In a state of nature, or of primary 
 society, these moral, physical and intellectual excellencies 
 would have been productive of an increase of happiness, 
 and would have occasioned inequality of condition: so, in 
 society, these virtues, in addition to their own good results, 
 are attended with a variety of collateral advantages, which 
 flow from the relation in which their possessors stand to 
 the society at large, of which they are members. But this 
 system of mutual sacrifice and accommodation in society, 
 becomes intelligible enough when we observe the nature 
 oi self-government, and its intention and effects. Man, as 
 we have often observed, is composed of an animal, and an 
 intellectual nature. As the enjoyment of the latter is im- 
 possible without attention to the calls of the former, so the 
 gratification of the sensual appetites, in the measure to 
 which they would prompt us, is destructive of intellectual 
 happiness, and eventually of the powers of physical plea- 
 sure themselves. Hence a temperate man restrains his ap- 
 petites, and finds his compensation for restraint and absti- 
 nence, in the general amount of heaith, that is, the longer 
 duration of pleasure, which they procure him. The same 
 thing takes place in human society and government. 
 Prompted by the same inclinations towards the same ob- 
 jects, we should constantly jostle, did we not bear and for- 
 bear, yield and receive, sacrifice and be remunerated; did 
 we not adhere, in short, to some general rules, at some ex- 
 pense of individual and special gratification. It is pleasant 
 to take of the fruits of the earth, and it is a natural right so
 
 Lect. I.] NATURE OP MAN. 69 
 
 to do; but it is speedily found to contribute both to their 
 abundance, and their peaceable enjoyment, that men should 
 have the exclusive property in what they rear and culti- 
 vate. So, also, it is a natural right of man to do what he 
 likes, where he does not interfere with the rights of others; 
 but he speedily finds that in society this right must be more 
 certainly and speedily defined and limited: he sees that 
 others are also possessed of this right; hence his experi- 
 ence, and that of the society in general, teach him the 
 necessity of restraining its exercise, would he preserve it 
 inviolate. Men soon discover that restraints are neces- 
 sary, and to what degree: these restraints grow into general 
 rules; and these rules are what we call the principles of 
 natural law. What we denominate utility, is therefore 
 nothing more than what contributes to happiness, by a more 
 general and certain operation; and it is consequently evi- 
 dent that the distinction which we draw in common speech, 
 between the pleasant and the useful, may lead us into some 
 misapprehensions. There can be but one great end and 
 aim of human actions, and that is happiness. Could the 
 useful and the agreeable be by any conceivable process dis- 
 joined; were we told we were to abandon our own felicity, 
 for the sake of producing some effect called utility; we 
 might very justly ask to know by what principle we were 
 called on to make the sacrifice, or in any degree to abridge 
 our liberty. In this, however, providence is consistent 
 and kind: we often sacrifice, indeed, a temporary or partial 
 good; but it is for one more durable and general. We 
 stifle our particular aims; but we thus subserve the ends of 
 society, and thus eventually our own. We sometimes go 
 in opposition to our private reason; but it is in compliance 
 with the general reason, as it appears in the implied rules, 
 or the positive laws of society. 
 
 It is usual to say that all men are equal, or in a state of 
 natural equality: this has two significations; first, that na-
 
 70 OF THE ORIGIN AND [Lect. I. 
 
 ture has given to all men the same rights, and, as far as she 
 has endowed them with the capacity of exercising those 
 rights, they are more or less valuable to their possessors. 
 Secondly, that all men remain in society in a state of equal- 
 ity, so far as the ends of government do not abridge their 
 rights, or so far as the positive institutions of society have 
 not, on the principle of utility, made special exceptions. 
 From the foregoing considerations we perceive the founda- 
 tion and nature of moral obligation, and the principle also 
 on which Yaws are binding, naturally and civilly. We have 
 already intimated the just conception of a law, viz. a rule 
 adapted to promote the general good constituted by gene- 
 ral consent, and sanctioned by implying in its violation, 
 some injury to that publick good of which our own forms 
 a part. The terms mos, mores, express custom, manners 
 and morals are thus, in truth, such customs, manners and 
 rules as have been found productive of the happiness and 
 good order of society. To sin against morality, is to do 
 some act inconsistent with these established habitudes of 
 thought and action: to violate the law of nature is another 
 mode of expressing the same thought: to be under a moral 
 obligation to obey the law of nature, is to be under a moral 
 necessity of consulting our happiness by those modes which 
 right reason, conscience, and just experience have found 
 best for that purpose. 
 
 It is thus eminently true, in a philosophical point of 
 
 riew, that 
 
 •Virtue alone is happiness below.' 
 
 And it is found, over and above all, that the tempers, the 
 restraints, the pursuits, and the tastes which are encouraged 
 or prohibited, as auspicious or hostile to society, exert cor- 
 responding influences on individuals. It is the beauty of 
 the moral system, that the end proposed by it, is that felici- 
 ty which we pursue with so much ardour; when we violate 
 its injunctions, we only mistake the means of pleasure,
 
 Lect. I.] NATURE OP MAN. 71 
 
 which nature hath determined with an unerring exactness. 
 It follows, too. as the consequence of these principles, that 
 we are under the same obligation to ohey the positive law 
 of the land, as that system which is derived from the cus- 
 tom and implied consent of mankind, and the dictates of 
 right reason, and of conscience. 
 
 I shall have occasion, hereafter, to show you by what 
 right the legislative power enacts laws, whether that legis- 
 lative power reside in a single individual, or in a select 
 number. I will only remark, by the way, that no imme- 
 morial usage, no hereditary, or other power of governors, 
 nor any conceivable force, could lay us under an obligation 
 to obey any legislative will, on any other principle than 
 general utility; in other words, the happiness of those who 
 are to be affected by its regulations. The happiness of na- 
 tions is the only just end of government; and when we re- 
 member how intimately government is allied with arts, and 
 with virtue, we shall see it is not only the right, but the 
 duty of nations, to resist bad rulers, and put better in their 
 stead; a solemn right and duty, whose exercise is attended 
 with too momentous consequences ever to be wielded rash- 
 ly, or without great deliberation as to all its remote, as 
 well as direct results. 
 
 I have said nothing of the inherent fitness and beauty of 
 virtue, and the necessity which some philosophers have 
 contended for, of cultivating it for its own sake; a sublime, 
 and perhaps a just notion, which I shall have occasion 
 hereafter to touch on. The foundation on which I have 
 endeavoured to raise the structure of moral obligation, is 
 that of Happiness, or (its other name) Utility. 
 
 In the course of the present lecture I have several times 
 alluded to the State of Nature: in the ensuing lecture I 
 shall eudeavour to explain what is really meant by that, 
 phrase.
 
 LECTURE II. 
 
 OP MAN IN A STATE OF NATURE. 
 
 (l.) Why the state There is no phrase of more frequent 
 of nature is treated occurrence among writers on natural law, 
 than that of 'the state of nature. ' It ap- 
 pears to be variously understood by different authors, and 
 has consequently given rise to moral and political opinions 
 of various, and sometimes opposite character. We hear of 
 rights which belong to man in that state; of the 'state of 
 nature' as distinguished from a 'state of society.' We hear 
 of the former as a primitive state of man, which once ac- 
 tually existed, and from which our species gradually emerg- 
 ed, forming, in the first instance, primary, and afterwards, 
 civil or political societies. We again hear of this state as 
 a supposed or fictitious one, imagined by philosophers 
 merely in order to illustrate their doctrines, which distin- 
 guish actions mala in se, from such as are only mala pro- 
 hibita; or certain rights which are called natural, from 
 those which are denominated adventitious; or finally, for 
 the purpose of drawing a broad and visible line of distinc- 
 tion between those obligations which are due from man to 
 man, independently of all positive institutions and enact- 
 ments, and those which flow from the laws or compacts of 
 society. 
 
 It is therefore important that we should understand the 
 true meaning of this phrase, in order to know with cer-
 
 Lect. II.] OP MAN IN A STATE OF NATURE. 73 
 
 tainty, what are natural rights and obligations; and that we 
 may he ahle to correct some misapprehensions which are 
 caused by the use of this term in various or indefinite 
 senses. 
 
 (2.) its various The student will find, very early in his 
 meanings. investigation, that there is (as we have 
 
 stated) some latitude or uncertainty in the meaning and ap- 
 plication of the expression, 'state of nature.' He will na- 
 turally inquire, where does this state exist? When did it 
 exist? Does it exist any where at this time? Is it when 
 man is solitary, and wholly unallied? Is it when he has 
 formed the most natural and necessary lie, that of marriage? 
 Or is it when he hunts in company, or when he tills the 
 earth in communities of small size, and without a common 
 governor? To all these modifications of man's existence has 
 this phrase been applied by different authors; with exclu- 
 sive propriety to none, and, in a certain sense, with pro- 
 priety to all; since in all these situations man, according 
 to circumstances, finds his natural place. 
 
 But the idea attached by the soundest writers on natural 
 law, to the phrase, 'state of nature,' is expressed by none 
 of these conditions of man. It is either that state in which 
 man actually existed before he entered into civil or politi- 
 cal association; or, as I shall have occasion to show here- 
 after, a mere ens rationis, a state which never had a real 
 existence, and which is founded by philosophers on the 
 doctrine of possible relations, for the purpose of establish- 
 ing certain important moral truths relative to the rights and 
 ©bligations of man. We shall endeavour to illustrate this, 
 after we have offered to you some of the various opinions 
 of eminent writers as to the original moral and physical 
 condition of mankind, and the circumstances, sentiments 
 and motives which impelled them to society. 
 
 If we adopted the notions of some of the poets, we should 
 believe that men were at first the mutum et turpe pecus 
 10
 
 74 ■ OF MAN IN A STATE OF NATURE. [Lect. II 
 
 they are described to be. by Horace; animals scarcely dis- 
 tinguished from the brutes; roaming the forest speechless 
 and companionless; unskilled in the most ordinary conve- 
 niences of life; and advancing towards even the most faint 
 civilization, under the conduct of chance, or the slow guid- 
 ance of experience. Others have presented to us a very 
 different picture, and have described men as living in one 
 wide community, where either the abundant fruits of the 
 earth were in common, or the products of the joint toil 
 were distributed strictly according to the wants of each; 
 and where justice and benevolence were as yet unstained. 
 This has been called the 'golden age,' and is familiar to 
 your classical recollections. 
 
 Others, again, have supposed the original state of man 
 to have been that of natural and incessant hostility, and 
 ascribe the formation of society and government, not to 
 the instinctive affections of the race, but to a sort of com- 
 promise between their respective hostility and selfishness. 
 We shall show you, from the nature of mankind, from the 
 habitudes that have distinguished man in all ages, and from 
 authentic history, that none of these notions are wholly 
 correct, but that the principles of both love and fear, peace 
 and hostility, have been always alike in operation. 
 
 It seems evident, in the first place, that man must origin- 
 ally have been created with his corporeal and his intellec- 
 tual faculties in a state of maturity; for had it been other- 
 wise, he would have had neither 'strength to procure ali- 
 ment, nor judgment to have made a proper selection of it.' 
 An equally probable supposition is it, that he had his pas- 
 sions and his sympathies, and hence that he would have 
 been impelled to immediate association. An agreeable and 
 sensible writer remarks, that 'where the natural historian 
 treats of any particular species of animals, he supposes that 
 their present dispositions and instincts are the same which
 
 Lect. II.] OP MAN IN A STATE OP NATURE. 75 
 
 they originally had.'* Whenever, therefore, we speak of 
 the natural state of man, we must suppose it to have been 
 one that harmonizes at least with his general nature. Hence, 
 we have good reason to suppose the natural state of man to 
 have been that of society; we cannot suppose him to be 
 otherwise than essentially social, because society is now 
 universal, and man, in whatever condition he be, if of sane 
 mind, evinces a fondness for association with his species. 
 And if we sometimes have found a wild man in the woods, 
 he is so far from being a sample of his species in a state of 
 nature, that he is in fact an anomaly, produced either by 
 inclinations peculiar to himself, or, what has probably been 
 the truth in these cases, from the impossibility of his 
 having intercourse with others. 
 
 The state of nature is consequently a social state. Men, 
 from the first, must have been endued with reason, and the 
 faculty of progressive improvement; and there are, more- 
 over, certain circumstances which must have existed, and 
 a certain knowledge which they must have possessed, with- 
 out being compelled to arrive at them by the force of their 
 own reason; or this noble animal, which now appears des- 
 tined to an almost eternal progression of improvement, must 
 have perished before he could take the first step. He was, 
 no doubt, instructed in the qualities of food, since he does 
 not, like all other animals, instinctively separate the saluta- 
 ry from the noxious. He must also have had a language 
 already constructed, or he had never proceeded beyond a 
 vocabulary, a mere collection of appellatives and names. 
 He must have been at once taught the utility of fire and 
 vesture, since nature hath neither enabled him to bear all 
 temperatures alike, nor provided him with a natural cover- 
 ing to resist their changes. All these reflections forbid our 
 reducing him to the state of nature, as it is understood by 
 
 * Fergu. on Civ. Soc. 3.
 
 76 OP MAN IN A STATE OF NATURE. [Lect. II. 
 
 those philosophers who regard man, as he now is, as little 
 else than a highly cultivated Pungos or Simea, as Lord 
 Monboddo and others have contended.* Mr. Ferguson 
 has some pertinent remarks on the point now under consi- 
 deration, which are as follows. 'If both the earliest and 
 latest accounts, accounts collected from every quarter of the 
 earth, represent mankind as assembled in troops and com- 
 panies, and the individual always joined by affection to a 
 party, while he is possibly opposed to another; employed 
 in the exercise of recolleclion and foresight; inclined to 
 communicate his own sentiments, and to be made acquaint- 
 ed with those of others; these facts must be admitted as the 
 foundation of all our reasoning relative to man. His mixed 
 disposition to friendship or enmity, his reason, his use of 
 language and articulate sounds, and the shape and erect po- 
 sition of his body, are all to be considered as so many attri- 
 butes of his nature; all these are to be retained^ his des- 
 cription, as the wing and the paw in that of the eagle and 
 the lion, and as different degrees of fierceness, vigilance, 
 timidity or speed have a place in the natural history of dif- 
 ferent animals. 't 
 
 This primitive or natural state of man, as a mere brute 
 animal, has been denied by many philosophers; and many 
 poets, historians and moralists have been fond to repre- 
 sent the early condition of the human race in a very dif- 
 ferent light. They have, as has been already intimated, 
 pictured his primeval state under the emblem of gold, 
 and have attached to it all that is delightful to the senses, 
 and virtuous and desirable in morals. Whilst, therefore, 
 these last have traced the shameful degeneracy of man; 
 the former have been still more minute in delineating his 
 progressive improvement from a state of mere animal sen- 
 sibility, to the refinement of reason, the invention, use and 
 
 *Monbod. Works, 1 vol. book 1, ch. 15. j Fergu. Civ. Soc. 4. 
 
 I
 
 Lect. II.] OF MAN IN A STATE OF NATURB- 77 
 
 cultivation of language, the formation of policed societies, 
 and the full establishment of all the various arts known to 
 polished life. 
 
 If we search for the facts of these opposite theories, in 
 the history of men and nations, we shall certainly be dis- 
 appointed. That societies and states have sometimes arisen 
 from very small beginnings, and that others have degene- 
 rated from vast attainments, and great moral excellence, to 
 equal illiterateness and vice, is entirely true: but the views 
 of the two classes of theorists we have mentioned, are in no 
 degree connected with, or promoted by this fact; they speak 
 of the original state of mankind, and would have us to be- 
 lieve it to be one of great excellence, or of equal abjectness. 
 With Ferguson we again coincide, who remarks that 'man, 
 in his rudest state, is ever found to be above the brute, 
 and, in his greatest degeneracy, never descends to their 
 level. In every condition, he is still a man; and we can 
 learn nothing of his nature from the analogy of other ani- 
 mals. If we would know him, we must attend to him, to 
 his course of life, and the tenor of his conduct. With 
 him society appears to be as old as the individual, and the 
 use of the tongue as universal as that of the hand or the 
 foot. If there was a time in which he had his acquaintance 
 with his own species to make, and his faculties to acquire, 
 it is a time of which we have no record, and in relation to 
 which our opinions can serve no purpose, and are support- 
 ed by no evidence.'* 
 
 Rousseau, in discussing the question of the divine or hu- 
 man origin of language, leaves to others the solution of the 
 problem, whether a society already formed was more ne- 
 cessary for the institution of language, or a language alrea- 
 dy invented, for the establishment of society. Dugald 
 Stewart, in commenting on this point, remarks that 'the 
 
 *Fergu. Civ. Soc. 12.
 
 7» Or MAN IN A STATE OF NATURE. [Lect. 11. 
 
 supposed difficulty arises merely from Rousseau's own pe- 
 culiar and paradoxical theory about the artificial origin of 
 society; a theory which needs no refutation but the short 
 and luminous aphorism of Montesquieu, that man is born 
 in society , and there he remains? 
 
 We are, then, to understand by the state of nature, merely 
 that condition in which men exist while they retain their 
 natural liberty, and acknowledge no common superior; that 
 is, a state contradistinguished from the civil state; and it is 
 immaterial to us whether this state ever had an actual ex- 
 istence or not. 
 
 (3.) The state of We shall have but little to say on this 
 nature merely theo- .. i,.,. ui.i. i_ i 
 
 retical and metaphy- to P lc > in additl0n *■* w ^at has been alrea- 
 sical. dy suggested. 
 
 Whether we regard this state, first, as one of bestial ig- 
 norance and independence; or secondly, of great illumina- 
 tion, and unalloyed happiness; or lastly, as merely that 
 state in which man is free to act for himself, without sub- 
 jection to any external control; there can be no doubt that 
 there never was a period in which mankind were in it, as 
 thus severally described. The state of nature so much 
 talked of, is a mere figment of the mind, an imaginary con- 
 dition of the human race, from which we reason in regard 
 to the rights and duties of man, 'as if such a state had ac- 
 tually existed, and his present condition were one super- 
 induced on the other. This metaphysical view of the sub- 
 ject contemplates man in the abstract, and enables the phi- 
 losopher to point out his rights and obligations in that sup- 
 posed state, and how they have been variously affected by 
 the change from the state of nature to that of society, and 
 political government. 
 
 (4.) Its metaphysi- It will readily occur to the student, that 
 cal sense is its only 
 useful one. the real, and only useful signification of 
 
 this phrase, is that theoretical state in which moralists have 
 
 chosen to consider man; a condition in which he is viewed
 
 Lect. II.] OP MAN IN A STATE OF NATURE. 79 
 
 as wholly unconnected with government of any kind, but 
 still endued with every mental, moral and physical quality 
 which is now known to distinguish him. That this sup- 
 posed state may be made the foundation of just and legiti- 
 mate rules and inferences in regard to man's actual rights 
 and obligations, there can be no doubt, when we advert to 
 the fact that nothing is supposed which contradicts his 
 known nature, but just the reverse. The whole system of 
 natural law is founded on an intimate acquaintance with 
 man's essential nature; and, moreover, there is nothing un- 
 philosophical in deducing rules of action from what would 
 be the duty of man in a given state. Montesquieu has a 
 pertinent remark which will illustrate this point; it is this. 
 'Before intelligent beings existed, they were possible: they 
 had, therefore, possible relations, and consequently possi- 
 ble laws. Before laws were made, there were relations of 
 possible justice. To say that there is nothing just or un- 
 just, but what is commanded by positive laws, is the same 
 as saying, that before the describing of a circle, all the radii 
 were not equal.'* 
 
 It is also very evident that every human art has its own 
 principles, which are properly called the science of that art: 
 thus, the optician's handicraft is an art; the principles on 
 which his glasses and telescopes are constructed, are the 
 science; and all these principles would have been equally- 
 true, had a glass never been made, nor the various lenses 
 &c. so combined as to form a telescope. The angle of inci- 
 dence would always have been equal to the angle of reflec- 
 tion, had a mirror never been cast, or had a surface suffi- 
 ciently smooth to reflect a ray, never existed. In the same 
 way, the laws of nature would have been equally true and 
 existent, had never an individual subsisted in a state of na- 
 ture, or, indeed, had man been created in full maturity, and 
 
 *Mont. Spi. Laws, book 1. page 2
 
 80 OF MAN IN A STATE OF NATURE. [Lect. n 
 
 in society, his actual nature being, however, the same as 
 we now know it to be. 
 
 So, likewise, we are accustomed to speak of things as 
 just and unjust, and of the rules of perfect justice. But 
 justice is itself an abstract and metaphysical idea, totally 
 independent of its actual existence among mankind. If 
 we spoke of justice only as it subsists ,and is practised 
 among men, we should recognize a very different idea from 
 that which is presented to us by the phrase, 'perfect justice.' 
 This may lead you to a clear idea of what philosophers 
 mean by their constant reference to a state of nature, and 
 to natural rights; it is the supposed condition of individuals 
 un-vnited, and their possible relations. Mr. Plowden, 
 in his Jura Jlnglorum, remarks on this subject, that the 
 qualities and properties of this state bear the same analogy 
 to the actual state of man in society, as the principles and 
 properties of mathematicks bear to practical mechanicks: but 
 Mr. Locke, in his Treatise on Government, though he de- 
 scribes this state much to our mind, seems to speak of it too 
 much as one of actual existence, and, like most who have 
 treated the subject, has not been sufficiently careful on this 
 point. 'To understand political power right,' says he 'and 
 to derive it from its original, we must consider what state 
 all men are naturally in; and that is a state of perfect free- 
 dom to order their actions, and to dispose of their posses- 
 sions and persons, as they think fit, within the bounds of 
 the law of nature, without asking leave, or depending upon 
 the will, of any other man; a state also of equality, wherein 
 all the power and jurisdiction is reciprocal, no one having 
 more than another; there being nothing more evident than 
 that creatures of the same species and rank, promiscuously 
 born to all the same advantages of nature, and the use of 
 the same faculties, should be equal one among another, with- 
 out subordination or subjection.'* We have quoted this 
 
 * Locke on Gov. 168.
 
 Lect. II.] OF MAN IN A STATE OP NATURE. 81 
 
 passage, as it contains a clear description of the supposed 
 state, though its learned author has not adverted to it in 
 this light. 
 
 As a perfect state of nature would he that in which men 
 exist without any positive law whatever, so the furthest 
 possible removal from it would be that wherein every rule 
 of duty, and dictate of conscience, was enjoined by posi- 
 tive laws, and all natural liberty given up, and then por- 
 tioned out by the political rule; a state of which it is as 
 impossible to conceive the actual existence, as it is that of 
 the other extreme, a perfect state of nature. 
 
 When, therefore, writers speak of the transition of man 
 from the first, to something approaching the second of 
 these states, they do not mean us to imagine that this was 
 at once a complete transition, made at a single point of 
 time, but a gradual change of ages, more or less progres- 
 sive however, according to circumstances. Men must be 
 presumed to have parted with their natural rights precise- 
 ly in proportion as they entered into durable social conven- 
 tions, and agreed to the establishment of permanent rules: 
 but as the occasions of these positive enactments could only 
 arise gradually in the various modifications and events of 
 society, so it is obvious that in the mean time the law of 
 nature retained its force, and the state of nature (so far 
 forth) its existence. Even at this day, therefore, indivi- 
 duals are in a state of nature, and are directed by the laws 
 of nature, in every thing that regards such rights, and 
 their enforcement, as have not been modified by the posi- 
 tive or implied laws and institutions of society. This 
 may be easily illustrated by examples; for instance, the 
 rights of Extreme Necessity, and of Harmless Profit, are 
 based on this principle. The former occurs under a variety 
 of circumstances, as, for example, in the case of self-de- 
 fence, which is justified and regulated by the law of nature, 
 and the individual exercising it, is pro hdc vice in a state 
 11
 
 82 OF MAN IN A STATE OF NATURE. [Lect. II. 
 
 of nature. In this case civil subjection ceases either in 
 fire/, or of right, and the arm of the civil power being 
 incompetent to afford relief to the individual, he is remit- 
 ted to his original state, and must be guided iherein by the 
 only law of that state. Under this right of Extreme Ne- 
 cessity, we may appropriate the property of others for our 
 immediate relief, and to prevent starvation, if there be no 
 other means of warding off that calamity. So, also, in a 
 storm at sea, we may cast overboard the property of others 
 for the preservation of life, or to remove a difficulty which 
 might jeopard it. In some instances we may even inflict 
 death for the preservation of our life or property; a woman 
 may slay him who would dishonour her; a husband or a 
 father is justified in killing one who attempts to dishonour 
 his wife or daughter. In all of these cases, where it is 
 supposed that we should wait in vain for the aid of the 
 civil power, we should he satisfied, however, that the jeo- 
 pardy exists, and that all relief is absent. Jurisdiction and 
 subjection having then ceased in fact, we are restored to 
 a sta e of nature, and to the rights and protection of the 
 natural law. 
 
 The right of Harmless Profit, if it exists, is the right of 
 using another man's property for our benefit, when it can 
 be done without prejudice to the owner. *< It is con- 
 tended by some that this is a right of natuie which has 
 never been relinquished; that originally all things being in 
 common, the institution ot property was only to answer 
 certain purposes, with which the right of harmless profit 
 is not at variance, as it benefits those who claim it, with- 
 out prejudicing those of whom it is asked. It is plain, 
 however, that such a right must be theoretical only, for in 
 practice it is so precarious as to render it doubtful if it 
 can be classed among rights of any kind. It is admitted 
 
 ■ l Ruth. Inst, book 1, ch. 5, 8. R.
 
 Lect If.] OV MAN IN A STATE OF NATURE. 83 
 
 that the proprietor is the sole judge of the extent to which 
 the right shall be exercised; and a doubtful right, to be used 
 only to such an extent as others shall dictate, can be of little 
 value. 
 
 It was at one time supposed in England, that the right of 
 harmless profit was sufficient to sustain what in that coun- 
 try is called the common law right of gleaning, and which 
 consisted in the privilege claimed by the necessitous and 
 indigent people of a neighbourhood, of entering on the 
 fields, after harvest, and gleaning therefrom the scattered 
 remains of corn and straw, which had escaped the gather- 
 ers of the crop. The practice is an ancient one in other 
 countries as well as in England, and has been referred not 
 only to the jus naturae, but to the humane provision of the 
 Mosaic law.* The validity of this right has been twice 
 the subject of legal adjudication in England, and in both 
 instances the right has been denied; so that it is no longer, if 
 it ever were, a part of the common law of that country. t 
 As a natural right, its existence'is doubtful; as a Mosaical 
 institution, it is not at this time obligatory; and as a common 
 law right, it was never legally sustained. 
 
 So, also, this status naturalis, and the principles of 
 natural jurisprudence, may be said to exist for many pur- 
 poses between nations. International law is said to be 
 based on the law of nature; a large portion of the Jus Gen- 
 tium is nothing more than the Lex Naturae applied to na- 
 tions, considered in the light of individuals in a state of 
 nature. As there is between nations no common superior, 
 no general tribunal to which an appeal can be made to settle 
 differences, the great code of natural law is the only one 
 which can be resorted to; and to enforce its decisions the 
 nation interested in its maintenance, has no other means 
 
 * Levit. ch. 19, v. 9, ch. 23, v. 22. 
 
 f Steel v Houghton, 1 Henry Blackstone's Reports 53. 3 Black. Comm. 212.
 
 84 OF MAN IN A STATE OF NATURE. [Lect. II. 
 
 than the compulsory one of war. Independently, then, of 
 treaties, and acknowledged customs and usages between 
 nations, there is no other rule of conduct that the jus na- 
 tural. Hence, the relation which subsists between nations 
 bound by no treaties, is almost identical with that which 
 would exist between individuals in a state of nature. 
 
 But to return to our inquiry whether a state of nature 
 ever had an actual existence. There can be no doubt that 
 if this perfect state ever existed for a short time, it waa 
 broken by the very first pair of human entities, since even 
 they were speedily controlled by a law, or something equiva- 
 lent thereto. Mr. Plowden remarks that 'it is incontroverti- 
 ble, that the only individual who can be said in any sense to 
 have existed in a state of nature, was Adam before the for- 
 mation of his wife.' But, if the inquiry be worth pursuing 
 to so remote an age, and as to individuals so peculiarly cir- 
 cumstanced as were our first parents, it appears to us that 
 Eve also was in that state, during that instant of time be- 
 fore she was subjected to the authority and law of her hus- 
 band. Nay, further, as a convention or contract is not 
 strictly a law, and as the wife was not subjected to her 
 husband until after the fall, by the command, or rather 
 punishment of God, the state of nature as to both, might 
 be said to have continued until that period, which, although 
 a punctum tcmporis when compared with the ages which 
 have since elapsed, was perhaps a considerable portion of 
 their own existence. Be this as it may, for we have no 
 means of ascertaining the period which elapsed between 
 the creation of Eve, and the fall, that period, whether short 
 or long, must have been a state of nature, since the wife 
 did not become, till after the fall, subjected to the law of 
 her husband. But if Adam were in this state, and Eve 
 also until she became subjected to him, it would not contra- 
 dict our previous assertion that a state of nature never exist- 
 ed, and is a merely theoretical state, presumed by writers on
 
 Lect. IT] ©p MAN IN A STATE OF NATURE. 85 
 
 natural law, for certain useful purposes. For in speaking; of 
 this state, whether actual or supposed, we must be under- 
 stood to refer altogether to a state in which mankind were, 
 and not to that of two individuals circumstanced as Adam 
 and Eve. No advantage could result from ascertaining 
 the fact of such an actual state of nature, and, consequently, 
 we may correctly assert that that state is wholly imaginary, 
 although it should be proved that our first parents were in 
 it for a time. Viewing the question in this light, it is 
 quite obvious that this state is merely hypothetical, as 
 there are many rights which are correctly termed natural, 
 and yet could never have been exercised in a state of na- 
 ture even such as that of Adam, before or after the fall, 
 or, indeed, in such a state of nature as Hobbes contends 
 for, in which great numbers of human beings existed at the 
 same time, but wholly separate and independent of each 
 other. Men, for example, have a right to the obedience of 
 their children to a certain age, and to their tenderness and 
 gratitude at every age: they had this right as perfectly be- 
 fore any children were born to them, as after; and yet in 
 either of these supposed states of nature, they had not the 
 actual exercise and enjoyment of it. Without this under- 
 standing of natural rights, those rights, the broadest and 
 the most comprehensive, would be narrowed to an insig- 
 nificant catalogue: they are not the less natural rights, be- 
 cause neither exercised nor enjoyed; it is sufficient if they 
 be clearly ours when circumstances occur in which they 
 may be actually enjoyed. Hence we are led to another 
 and much broader idea of the natural law, viz. a system of 
 rules of action suitable to promote the greatest utility to 
 man in all stages of his being; an abstract perfection, after 
 which legislation labours in all modifications of human ex- 
 istence and society. You will find, indeed, this abstract 
 standard constantly appealed to in all disquisitions concern- 
 ing human rights and duties. As men are presumed to
 
 S6 OF MAN IN A STATE OP NATURE. [Lect. II. 
 
 depart from their natural state only with a view to the en- 
 joyment of a better, and as they only relinquish a portion 
 of their rights, or modify them, in order that they may 
 enjoy the remainder of them the better, we naturally seek 
 to ascertain how much we are really obliged to give up, in 
 order to secure the balance. When, therefore, we form the 
 constitution or laws of a society, we decide what portion 
 too much of our natural rights is demanded of us in return 
 for their protection; and we are accustomed to say they in- 
 vade so much of the natural rights of man; not those rights 
 only which actually existed in a state of nature, but those 
 which we are still entitled to enjoy, after deducting those 
 whose relinquishment is essential to the establishment, the 
 conservation, and the peace of well regulated society. 
 
 From all that has been said, we think that writers on 
 natural law have not been sufficiently explicit in stating, 
 that the so much spoken of 'state of nature' is a merely hypo- 
 thetical one; and that their neglect in this respect has been 
 the cause of some serious practical errors, and false princi- 
 ples, in regard to our rights in society, and the true rela- 
 tion which subsists between those who govern and are 
 governed. To these mistaken notions are we, in part, to 
 ascribe some of the doctrines of revolutionists in all ages; 
 the opinions of the Illuminati, and Jacobin demagogues 
 throughout the worid, who from design, more frequently 
 than from ignorance, have endeavoured to confound the 
 two states together, or to transfer the properties of the 
 state of nature, whether actual or supposed, to the state of 
 society; an amalgamation impossible to be made, and ever 
 fraught vvith the most alarming mischiefs. 
 
 (5) Whether the The ingenuity of philosophers has been 
 
 state of nature be , •. i A i 1 .1 i.u: * * 
 
 „„„ ~ f much excited to know whether this state, 
 
 one 01 war or of ' 
 
 peace. if actual, were one of peace or of war. 
 
 The establishment of a common superior, or chief magis- 
 trate, must have been with the intent to remedy some evils.
 
 Lect. II.] OF MAN IN A STATE OP NATURE. 87 
 
 or to improve some advantages; and it is a curious ques- 
 tion, not entirely devoid of profit, whether it was most in 
 the pursuit of good, or in the avoidance of evil, that these 
 infant associations were formed. 
 
 This controversy was first started by the celebrated Tho- 
 mas Hobbes, in his treatise De Corpore Politico. The 
 character and opinions of this distinguished man were pre- 
 cisely such as we should expect to find in one who argued 
 with learning and gravity the point we have now under 
 consideration, and decided it in favour of the natural hos- 
 tility of man against man. Mr. Hobbes's philosophy may 
 be very briefly summed up as follows. He asserts that by 
 the law of nature, every man has a right to all things, and 
 over all persons; his maxim being, Nat lira dedit omnia 
 omnibus: that the natural condition of man is a state of 
 war, a war of all men against all men: that every one acts 
 reasonably who endeavours, as far as possible, to master all 
 the persons of others, till he sees no power great enough 
 to endanger his own: that the civil laws are the only rules 
 of good and evil, of just and unjust, honest and dishonest, 
 and that antecedently to such laws, every action is in its 
 own nature indifferent: that there is nothing good or evil 
 in itself, nor any common laws constituting what is uni- 
 versally just or unjust: that all things are estimated by what 
 every man judgeth to be fit, where there is no civil govern- 
 ment, nor any law to regulate conduct: that the power of a 
 sovereign is necessarily absolute, and that he is not bound 
 even by any compact, however solemn, with his subjects: 
 that nothing which a sovereign can do to the subject, can 
 be called wrong or imperious: that a sovereign's word is 
 sufficient to take any thing from any of his subjects, if there 
 be need so to do, and that the sovereign is the exclusive 
 judge of the necessity, his fundamental maxim in this re- 
 spect being, Non Veritas, sed auctoritas facit legem.
 
 88 OP MAN IN A STATE OF NATURE. [Lect II. 
 
 The foregoing is a faithful, though a very brief epitome 
 of the gloomy philosophy of this extraordinary man. 
 
 Notwithstanding these bold and, we venture to say, ab- 
 surd doctrines, the philosopher of Malmesbury has been 
 regarded with great veneration by the learned generally, 
 and has had many advocates, or at least friends, who have 
 endeavoured to prove that he has been either misunder- 
 stood, or grossly perverted. Others, again, have adopted 
 some of his sentiments with a zeal fully equal to their mas- 
 ter's. His doctrine as to the natural hostility of man against 
 his own species, has certainly had many opponents, but it 
 has also not been without its supporters. Mr. Hobbes goes 
 on the hypothesis, in the first place, that men must origin- 
 ally have existed in great numbers at the same time; a 
 supposition highly improbable, not conformable to the gen- 
 eral opinion, and unsustained, not only by the general his- 
 tory of the infancy of mankind, but by that record which, 
 if even not divine, is entitled to high consideration; but 
 being divine, is conclusive on the subject. Taking this 
 writer, however, on his own grounds, his position is mere 
 assertion, and his inferences from that assertion are, as we 
 hope to prove, not even plausible, much less true. Before 
 we proceed to the further examination of this point, it is 
 proper to remark that the phrase, 'state of nature,' has been 
 used in three distinct senses, so that what may be predicated 
 of the one, as to its being a state of war or of peace, may 
 not be applicable to the other. In the first sense it means 
 nothing more than the natural disposition or tendency of 
 mankind, considered as beings compounded of reason as 
 well as passion; and is that state which it is believed would 
 be the most consentaneous to the nature of man abstractly. 
 This is a meaning wholly synonymous with the expression, 
 'natural character of man,' and, in truth, does not import 
 a state or condition of the species, nor refer to the fact 
 whether mankind were associated or not; or, if associated,
 
 Lect. 11] OF MAN IN A STATE OF NATURE: 89 
 
 whether it were in mere primary societies, or in those of 
 a political nature. The second meaning of this phrase 
 is the usual one, viz. man's actual or supposed primitive 
 condition, without society of any kind; and the third im- 
 ports his like condition in a rude or primary society, but 
 without any superior, government or laws. In regard to 
 Hobbes's opinion, no difficulty can arise from this threefold 
 meaning, since his doctrine covers the whole. He con- 
 tends that in all, or either of these meanings, the state 
 of nature is one of war; that man's natural tendency or 
 character is that of hostility against his species; and that 
 this is equally the case whether he be solitary, and wholly 
 unallied, or in a state of primary association. There are 
 various philosophers who have partially adopted the views 
 of Hobbes; among the rest we find Mr. Da^ge, a learned 
 and sensiole writer, who, notwithstanding various qualifi- 
 cations and nice distinctions, (as if ashamed to go all le- gibs 
 with the philosopher of Malmesbury,) has, we think, so far 
 adopted his hypothesis as to be responsible for its absurdi- 
 ties and its mischiefs, if there be any. Mr. Dagge admits 
 the general pacific nature or character of man. and that if 
 the first of the meanings we have stated, be applied to the 
 question now under consideration, then the state of nature 
 is undoubtedly pacific; but, singular as it may appear, he 
 still concurs fully with Hobbes in regarding the state of 
 nature as essentially hostile, when the question is applied 
 to either of the remaining acceptations. 
 
 As we think that Mr. Dagge has conceded too much, and 
 indeed nearly every thing to Mr. Hobbes, in admitting the 
 state of nature to be one of war, when we mean by that 
 state, man's condition without society or law; and as we 
 also believe that he has involved himself in extreme diffi- 
 culty, if not contradiction, when he allows man's natural 
 tendency to be pacific, and yet contends that his primitive 
 condition is that of war; we shall be excused if we state 
 12
 
 90 OF MAN IN A STATE OP NATURE- [Led. H 
 
 his views in detail, and make such comments on them as 
 may enable you clearly to perceive the difference between 
 the opinions of Hobbes and Mr. Dagge, and also to detect 
 the fallacy of the entire argument of the latter writer. 
 
 If we are to understand by the state of nature nothing 
 more than man's condition when wholly without society 
 and laws, either civil or political, then, says Mr. Dagge, 
 'it is difficult to conceive how such a state can be one of 
 peace, for though it be admitted that men in general are 
 pacifically inclined, yet the few who are guided by their 
 passions, would necessarily involve the rest by turns in 
 disputes with them.' He further remarks, that 'whenever 
 there is no common tribunal to which the contending par- 
 ties may appeal, and submit their differences, there the de- 
 cision must be by force, and such a state may properly be 
 termed a state of war, in which every one retains his pri- 
 vate right of redress and revenge.' 
 
 In reply to these observations, we have occasion, at this 
 time, only to remark, that they are liable to the common 
 objection of proving too much; for if the mere fact of the 
 right, of redress remaining with individuals in a state of na- 
 tme, be sufficient to characterize it as a state of war, then 
 must the relation or state subsisting between nations, be 
 equally and essentially a state of war. Each nation, in the 
 great collection of nations which divide the human family, 
 possesses the same right of redress and revenge that is at- 
 tributed to every individual in a state of nature. Nations 
 have no common tribunal; they are in a state of nature, as 
 much so as are individuals when without society and law; 
 and consequently all nations must be regarded, at this time, 
 as essentially in a state of war, as far as that state has not 
 been modified by treaties between them, which indeed, on 
 the basis of this theory, can scarcely be deemed sufficient 
 to relieve even those thus allied, from the imputed state of 
 war.
 
 Lect. II.] OF MAN IN A STATE OF NATURE. 91 
 
 Puffendorf has argued this mooted question against 
 Hobbes, and so has Grotius; the first observing, that the 
 causes which, according to Hobbes, render men offensive 
 and hostile to each other, are mostly of a particular nature, 
 and consequently not of such universal influence as to make 
 all mankind hostile to each other, and at most, could only 
 set a comparatively small number of individuals at variance; 
 while Grotius thinks that men may live pacifically in a state 
 of nature, if they live in great simplicity. To these views 
 Mr. Dagge has made several objections, to which we shall 
 presently advert. Montesquieu also sides with Grotius and 
 Puffendorf, and contends, in opposition to Hobbes's theory, 
 that man in a state of nature would, first of all, think of the 
 preservation of his own existence, that he would immedi- 
 ately become sensible of his weakness, and that his timidity 
 would be excessive. To sustain himself in this idea, he 
 cites the case of the savage youth who was found in the 
 woods of Hanover. We have hastily referred to these 
 weighty names, as the most distinguished among those who 
 have contended against Mr. Hobbes: our time will not per- 
 mit us to give even a summary of their views. This would 
 be the more unnecessary, as we do not entirely concur 
 with them, and shall have occasion to dwell perhaps too 
 long on the point, in examining more particularly the doc- 
 trines of Mr. Dagge, who endeavours to strike out a new 
 distinction, when there is no real difference, and who, we 
 think, is more likely to mislead young minds on this sub- 
 ject, than even the learned author of the theory. The 
 question under examination is, in the abstract, of no great 
 importance; but as it involves, in its extended considera- 
 tion, a great variety of topicks of great interest in the na- 
 tural law, we shall be excused if we are unwilling yet to 
 part with the subject. 
 
 Is the 'state of nature,' in any sensible use of that phrase, 
 a state of peace or of war; that is, do the propensities of
 
 92 OF MAN IN A STATE OF NATURE. [Lect. II. 
 
 mankind in thai state, decidedly preponderate to love and 
 kindness, or to hatred and revenge towards iheir species? If 
 we look at the primitive condition of man, as it is recorded 
 in the Scriptures, and which is indeed the only intel- 
 ligible account we have, in the form either of history or of 
 hypothesis, we shall find that the human race, however di- 
 versified, are the offspring of a single pair, endowed at first, 
 and even after their fall, with the qualities requisite for 
 their preservation and improvement, and attached by na- 
 tural ties to the protection and instruction of their offspring, 
 who, in their turn, bestowed a similar attention on their 
 own. The state of nature therefore had, in one sense, an 
 existence for scarcely a moment; not longer than while the 
 first pair of human beings were deliberating, if indeed they 
 did deliberate, whether they should yield to the instinct 
 within them, and rush into the first embrace. Their children 
 imbibed from them the habit of obedience, and learned the 
 duty from the necessity of it; and when they separated 
 from the parent stock, and carried with them their pro- 
 geny into other districts of the forests, they did not carry 
 with them independent individuals but families, who gave 
 obedience for sustenance and affection, and between whom 
 and themselves there existed a state of society as complete 
 for all its purposes, as are the most complex governments 
 for theirs. Does society imply numbers? we answer, only 
 thus far, that there shall be some to govern, and some to 
 obey, and the primitive families had these. Does it imply 
 a governor? it was to be found in the father of a primitive 
 family. Does it imply a contract? it was complete be- 
 tween the parent who had reared, and the children who 
 had been nurtured, for many years. Does it imply laws? 
 the various relations of a family would speedily teach and 
 enforce them, because of the daily necessity for rules even 
 in the least numerous, and best affectioned of these minia- 
 ture societies. Does it imply sanctions? these existed in the
 
 Lcct II.] OF MAN IN A STATE OP NATURE. 93 
 
 natural affection which the children bore towards their pa- 
 rents, and in the necessity of sustenance, which they were 
 to derive from those whose skill and labour could procure 
 for them, what their own were inadequate to obtain. From 
 the foregoing view, which might have been greatly extend- 
 ed in order to show how similar must have been the primi- 
 tive condition of man to those subsequent associations called 
 nations, or civil societies, we clearly perceive that under 
 any plausible view of the origin and progress of man, it is 
 neither just nor logical to assume the preponderance of any 
 one set of affections, of fear, hostility, pride, arrogance, 
 &c on the one hand, or of love, sociality, sense of weak- 
 ness, gentleness, &c. on the other; that is, in other words, 
 to suppose that the state of nature was a state either of ex- 
 clusive war, or of exclusive peace. Whether we regard 
 men as originating and existing in the mode we have just 
 deduced from the Scripture History, or take the theory of 
 Hobbes, and imagine them subsisting in large numbers at 
 once, we still contend that it cannot be justly maintained 
 that they would be actuated by one set of predominant pas- 
 sions. We believe, on the contrary, and the opinion is 
 justified by all subsequent history and knowledge of our 
 species, that they would be actuated by various and very 
 opposite emotions, according to circumstances; that they 
 would love and hate, be pleased and angered, be at peace 
 and in broils, as they had abundance or deficiency of food 
 and shelter; according as they were thinly or thickly esta- 
 blished in particular spots; and, mainly, according as they 
 were attracted by congenialities of temper and pursuits, 
 which we know are the most apt to link men together 
 through all difficulties, which make them deny themselves, 
 out of mutual affection, even of the first necessaries of life, 
 and which cause them to think, more especially where the 
 sexes are different, that no privation is too much, so that, 
 they can enjoy the comfort of a society of their own selec-
 
 ■J4 OV MAN IN A STATE OF NATURE. [Lect. II. 
 
 lion. This point then, so much vexed among philoso- 
 phers, appears to us to resolve itself into a simple question 
 like the following. If two individuals of the human race, 
 with their powers of reasoning in operation, though with- 
 out knowledge, and with their natural qualities of heart 
 unvitiated and unhiassed, and who had never seen society, 
 were to meet together on some desert island, would they 
 view each other with distrust and hatred, or come imme- 
 diately into habits of affection and intimacy? Would 
 neither of these individuals, (according to Hobbes's philoso- 
 phy) ever rest until one or the other had not only subdued 
 surrounding nature to his sovereignty, but conquered and 
 enslaved the only one of his species he had ever seen, or 
 was likely to see; and after gaining the mastery, would 
 the victorious individual, (adopting Hobbes's favourite 
 maxim, Non Veritas sed auctoritas facit legem,) feel him- 
 self under no obligation whatever to the man he had sub- 
 dued, and, forever suspecting him of treachery, be always 
 alert to preserve an equal measure of rigidity towards him, 
 lest he, in turn, should get the ascendancy, and exercise it 
 in the same way, as of right he may, according to this sul- 
 len philosophy. Or, again, the question may be thus mo- 
 dified. Does our knowledge of the natural dispositions of 
 mankind justify the opinion, that persons thus situated, 
 would be more apt to disagree, and to assert their respec- 
 tive desires by resort to force, than to harmonize, and live 
 in peace? In settling such a question, an abstract one in 
 itself, it would clearly be improper to allow any thing for 
 peculiarity of disposition: the two supposed individuals 
 must, in this question, stand as the representatives of the 
 human race, and their conduct on such a meeting, must be 
 concluded to be that which seems natural from our acquain- 
 tance with the human character. Now, if there be any 
 quality which particularly distinguishes mankind, it certain- 
 ly is sociality. Other animals, as was shown in the pre- 

 
 Lect. II.] OF MAN IN A STATE OF NATURE. 95 
 
 ceding lecture, though they meet in companies, are merely 
 gregarious, not rising to that strong, constant, and yet se- 
 lecting quality, which we term sociality, and which has 
 characterized man in all ages, and under all circumstances. 
 If communities are small when men are in the infancy of 
 agriculture, or are yet herdsmen, it is not because they are 
 antisocial, but because their means are small, and they 
 must remain separate to have enough. If they are smaller 
 yet when they are hunters, it is owing to their means of 
 subsistence being still more restricted, and, consequently, to 
 their requiring a proportionally wider surface of country to 
 supply them. We conclude, therefore, that men associate 
 from a feeling which is in a great degree instinctive, namely 
 the social principle, and are only separated by circumstances. 
 
 To say, because this state of association is sometimes 
 interrupted by competitions, and even contests, that the 
 natural state of man is one of warfare, is, we think, no 
 less unkind than illogical. The two individuals whom we 
 have supposed, would, it seems to us, be irresistibly at- 
 tracted to each other, even if they were not of opposite 
 sexes: they would seek their food, and eat it together: they 
 would league themselves against the beasts: they would 
 explore together the solitudes, in order to enliven their 
 dreariness: they would, in short be mainly dependent on 
 each other for comfort and cheerfulness; and if they dis- 
 puted sometimes about the division of their food, the direc- 
 tion of their wanderings, or the place and time of rest, 
 these collisions would be mere episodes in an existence, 
 the principal charm of which would be drawn from an in- 
 tercourse of thoughts and sentiments, which would not be 
 surrendered for interests comparatively so unimportant to 
 their happiness. 
 
 The foregoing observations will, it is hoped, enable us 
 to see more clearly the fallacy of Mr. Dagge's views. 
 Though he declares the doctrine of Hobbes to be a baneful
 
 on 
 
 OF MAN IN A STATE OF NATURE. [ Lect - H- 
 
 one, he in reality very nearly coincides with him. After 
 endeavouring to impugn the views of Grotius, Puffer. dorf 
 and Montesquieu on this subject, he contends that, as they 
 consider only the general nature of mankind, their argu- 
 ment is no way decisive of the question in controversy! a 
 conclusion, by the by, the very reverse of what we sup- 
 pose most men would draw. 'But admitting,' says Mr. 
 Dagge, 'the greater part of mankind to be social and pacific, 
 yet it will not therefore follow that a state of nature is not 
 rather a state of war than of peace. The selfish passions 
 of a few would not, it is true, involve the whole species 
 simul etc semel in a state of war; but these selfish affec- 
 tions will operate so fatally, that all, in their turns, will 
 feel their direful effects, and the most mild and pacific will 
 vicissim be involved in hostilities, even in their own de- 
 fence. The seeds of contention are inherent in our nature; 
 consequently, as occasions of disagreement increase, hos- 
 tilities will multiply.' 'Again,' says this author, 'if by a 
 natural state we mean such a state as is most consentaneous 
 to man abstractedly, men would be, in such a state, rather 
 inclined to peace; but if we speak of a natural state, as con- 
 tradistinguished from a social or civil state, it appears to 
 be rather a state of war, though the members of such a 
 state may not continually be at enmity, or waging war.' 
 
 We have now stated to you very fully, from Mr. Dagge's 
 work, all that is necessary to possess you of his peculiar 
 views and distinctions; and we cannot help regarding them 
 as disingenuous and sophistical throughout. The question 
 for solution really is, whether man is by nature a being in- 
 clined to associate with his species, and to live in peaceful 
 communion, or is one whose dispositions lead him to prey 
 upon his kind, and to domineer over those whose physical 
 and mental inferiority renders them unable to protect them- 
 selves. The point is one which regards the character of 
 the speeies only, and not merely the vices or the virtues of
 
 Lect. II.] OP MAN IN A STATE OP NATURE. 97 
 
 the few, to which Mr. Dagge, by a strange departure from 
 the real point, would seem to restrict it. The general 
 and pervading character of mankind, therefore, must be 
 decisive of the question, and, consequently, the fault found 
 by Mr. Dagge, with Grotius, PufFendorf and Montesquieu, 
 in having rested their opinion on the acknowledged pacific 
 character of the species, so far from being a fault, or inde- 
 cisive of the merits of the question, is, according to our 
 apprehension of it, the only solution of which it is suscepti- 
 ble, and the only point, in fact, worth contending about. 
 Our author's concession of the general pacific nature of 
 man, appears to us an abandonment of every compre- 
 hensible ground on which he and Hobbes would rest 
 their argument; and the distinction taken by the former, 
 viz: that if by the state of nature is meant that which is 
 the 'most consentaneous to man abstractly, it is a state of 
 peace;' but if it mean 'the condition of men while they 
 retain their natural liberty, and are without government 
 and laws, it must be a state of war;' appears to us wholly 
 destitute of foundation and utility. If Mr. Dagge be at a 
 loss to 'conceive how such a state can be one of peace,' 
 might he not have been equally at a loss how to conceive it 
 a state of war? By status or state, as applied to the pre- 
 sent subject, we surely do not mean an occasional condition, 
 but a preponderating one, flowing from a general operating 
 principle. How, then, men in general can be admitted to 
 be pacifically inclined, and yet the natural condition of 
 man be that of hostility, we confess we are at a loss to com- 
 prehend. It is obvious that Mr. Dagge has mistaken the 
 real point of controversy; or has confounded the partial 
 causes of occasional hostility, with general or pervading 
 principles, which would induce the status about which 
 alone is the controversy at all concerned. This was un- 
 questionably the meaning of Mr. Hobbes; so his opponents 
 have ever understood him: for if by a state of peace, or a 
 13
 
 98 
 
 OF MAN IN A STATE OP NATURE. [Lect. II 
 
 state of war, we mean one never interrupted by any con- 
 tentions in the one case, nor by any friendships in the other, 
 undoubtedly the state of nature can never, (as we have 
 shown from the mixed character of man) be either a state 
 of peace or of war. But if, on the other hand, we mean by 
 the inquiry, nothing more than to ascertain whether the 
 dispositions of mankind are more generally hostile than 
 peaceful, we conceive that the daily contemplation of man 
 even in his rudest condition, and the tenor of his whole his- 
 tory, will justify the conclusion that he is naturally dispo- 
 sed for society, the love of his species, and the cultivation 
 of the blessings of peace; and that the numerous contests 
 and wars, both private and publick, which figure so largely 
 in the history of our species, no more prove the natural 
 proclivity of our race to war, or that our natural state is that 
 of enmity against one another, than do the occasional mise- 
 ries of man, his diseases, or his too frequent manifestation 
 of bad passions, prove his natural state to be wretched, or 
 full of physical disease, or moral evil. There is, we 
 know, too much of all these evils; but these, we appre- 
 hend, are his unnatural and partial states; we know how 
 they have been superinduced, and no one ventures to as- 
 sert, and none can believe, that our natural condition is 
 other, generally, than that of happiness within our con- 
 trol, health within our means of enjoyment, and virtue 
 at our option: and, finally, that if the vices have too often 
 triumphed over the virtues, still man does not find his 
 natural condition among the former. 
 
 Again, (if we are not pressing this topick too far) we 
 may place it in yet another light. The enjoyment of soci- 
 ety, the acquisition of property, and the cultivation of the 
 understanding, being the primary objects of mankind, they 
 can have no general dispositions inconsistent with the ob- 
 tainment of these, although their vices and their ignorance 
 may sometimes interfere with the pursuit of these goods.
 
 Lect. II.] OP MAN IN A STATE OP NATURE. 99 
 
 It must be allowed, then, that the views of mankind being, 
 in the main, directed towards these ends, their conduct will 
 be shaped, in the main, by the principles best adapted to 
 insure them. It is folly, therefore, to imagine that man, 
 who desires the society of his fellows, who is anxious to 
 reap in security the fruits of the earth, and to receive the 
 products of his labour, and who loves both to communicate 
 and to receive the results of observation and experience, is 
 naturally prompt to that state, which, of all others, would 
 most effectually defeat the whole of these ends. His case 
 is entirely different from that of solitary and predatory ani- 
 mals, (and even these war not on their own species habi- 
 tually) whose enjoyment is retired, who have no thoughts 
 to communicate, and who cultivate no fields with a view to 
 bring their fruits to maturity. Men do not argue from a 
 few contentions among beavers, that they are hostile to 
 each other, when they find them constantly associating, com- 
 bining their labours for a common end, and then enjoying 
 their results generally in peace and system. If we refer 
 even to the innumerable contests of the most savage tribes, 
 we shall find a confirmation of these principles; since we 
 never heard yet of a war undertaken for the pleasures 
 which it bestowed, but rather for the protection or revenge 
 of invaded rights, and only sometimes with the view of 
 plunder. No argument can be stronger than this, to prove 
 the natural sentiments of mankind on this point, and that 
 the species cannot be justly charged with the wicked desire 
 of waging war merely for each other's subjugation or des- 
 truction. Again, if it has been urged on the one hand, that 
 the necessity under which men found themselves of 
 leaguing together in societies for the preservation of peace, 
 is an argument that the state of nature was one of war, since 
 otherwise there had been no necessity for such combina- 
 tions for mutual protection; it may be replied with equal 
 justice on the other hand, that had not their dispositions
 
 100 07 MAN IN A STATE OP NATURE. [Lect. U. 
 
 been really pacifick; had not peace been greatly preferred, 
 and been their real object and delight; they would not have 
 resorted so universally and steadily to these pacific associa- 
 tions: to say nothing of the numerous other ends, besides 
 mere protection, which were answered and promoted by 
 civil societies. In short, if the notion that this state is one 
 of war, mean any thing more than that the peaceable ten- 
 dencies of mankind were often interrupted by contentions, 
 (a point never denied) it must seem a paradox that men 
 should rush to civick associations, in order to avoid that 
 which their nature coveted, and to control the very dispo- 
 sitions in which they were the most prone to indulge. It 
 seems, therefore, very clear that, unless the tempers of the 
 majority, and a considerable majority too, had been paci- 
 fick, the lawless and violent inclinations contended for by 
 Mr. Hobbes and others, would for ever have sundered 
 mankind, or brought them into no closer combination than 
 is necessary among hordes of banditti. We have consider- 
 ed this subject more, in detail than some may think neces- 
 sary; but it is not without its practical uses, and in an out- 
 line of ethical and political law, a controversy of so much 
 celebrity could neither be omitted, nor slightly passed 
 over. From what has been said on this point, you will no 
 doubt, agree with Plutarch, that 'man is by nature neither 
 a savage nor an unsocial creature, and that when he be- 
 comes so, it is by vices contrary to his nature;'* and also 
 with Vattel, that 'man necessarily stands in need of crea- 
 tures like himself, to preserve and perfect his own being.'t 
 
 (6.) of the incon- That the state of nature, had it ever 
 veniences and mise- exigted wou]d haye been productive of 
 ries of the state ot J 
 
 nature infinite wretchedness, and have speedily 
 
 tumbled into confusion, is extremely obvious from our 
 
 knowledge of human nature. Whatever the pacific dispo- 
 
 A Lang. Plut. 'Pompey.' f Vattel, ii. 5.
 
 Lect. II.] OP MAN TN A STATE OF NATURE. 101 
 
 sitions of the many, the few would frequently have plunged 
 them into discord: whatever their desires after utility and 
 enjoyment, the wrong judgments of some vigorous indivi- 
 duals would frequently have interfered to thwart their pro- 
 gression towards it; for as the universal concord of men 
 would have been necessary for either of these, so, unhappi- 
 ly, the dissent of a few would have been enough to mar, 
 and sometimes to destroy them. Men, therefore, would 
 speedily find the necessity of society, and its advantages 
 would continue to ensure its endurance. The inconveni- 
 ences of the state of nature can be well imagined, and need 
 not be further remarked on; they appear in high relief 
 when contrasted with the blessings secured to us by society 
 and laws. 
 
 Before we proceed to trace the origin and various mo- 
 tives, actual and imaginary, which gave rise to society and 
 government, we propose to direct your attention to the 
 rights which appertain to the state of nature, which we have 
 just considered; and these natural rights will form the sub- 
 ject of the ensuing lecture.
 
 LECTURE III. 
 
 OP THE RIGHTS OP NATURE- 
 
 We are now to speak of those rights which belong in a 
 state of nature to every human being; which appertain to 
 man for his preservation or happiness; and which are so 
 essential to his well-being, that they may be said to belong 
 scarcely more to man than to all God's animated creation. 
 These rights remain with us in society, where they are so 
 guarded and modified as to produce the greatest happiness, 
 by averting the evils to which we were liable in a state 
 of nature, from their unrestrained and injudicious use. 
 The rights of nature, in common with all others, regard 
 either a man's person or his property; for even in a state 
 of nature, property may be acquired; and in that state the 
 inviolability of person was as essential, and as much a 
 right, as it now is in civil society. 
 
 Before we proceed to examine the various rights of na- 
 ture, it is proper that we should have a clear understand- 
 ing of the true import of the word Right. 
 
 (10 Various mean- There are fevv vvords in an y language 
 ings of the word which have been more variously used 
 
 lg ' and defined than this word. It appears 
 
 in the form of substantive, adjective and adverb, and is 
 supposed to have not less than forty meanings. We shall 
 note a few of them, and endeavour to bring within a small 
 compass the substance of what may be found repeated in a
 
 Lect. HI] OP THE RIGHTS OF NATURE. 103 
 
 variety of forms, perhaps in every volume, ancient and 
 modern, which treats of morals, law, divinity, metaphy- 
 sicks, or even criticism; each author, without fail, taking 
 up and explaining this word Right. Our notice of it, 
 therefore, is merely to afford the student a foretaste, and 
 by no means to philosophize extensively on it, since per- 
 haps, after all, every man understands its import nearly as 
 well intuitively, as it were, as he does after even the most 
 critical examination of its etvmons and meanings. 
 
 1. The word Right is sometimes used to signify law. 
 When we say, for instance, that natural right requires us 
 
 to keep our promise, to restore what we have purloined, or 
 to refrain from murder, we mean natural justice, the natu- 
 ral fitness of things, or, in other words, natural law. It 
 was used in like manner among the Romans, who re- 
 cognize this in their word jus, which signifies, not only 
 right, but law: thus they say jus gentium, or law of na- 
 tions; while the same word, in other cases, imports the 
 same as our word Right; as in the phrase, jura personarum, 
 the rights of persons. 
 
 2. The word Right sometimes means that quality of 
 our actions by which they are denominated just or lawful- 
 though it is more usual, when this is our meaning, to say the 
 rectitude of our actions. The moral rectitude or Tight- 
 ness of an action is its conformity and consistency with 
 moral rules, whether natural or positive: we say conformi- 
 ty and consistency, for it is justly remarked by Grotius, 
 that not only such actions as are conformable to what the 
 law commands, but likewise such as are consistent with it, 
 and not forbidden by it, have right or rectitude; for it is 
 plain that all actions are lawful which the law does not for- 
 bid. In short, right or rectitude, in this second case, 
 means the quality of being conformable to, and consistent 
 with law.
 
 104 OF THE HIGHTS OP NATURE. [Lect. Ill 
 
 $. The next sense in which this word has been used, is 
 that which we attach to it when we speak of the rights 
 which wo enjoy either in a state of nature, or in society. 
 It is then not a quality of actions, as in the preceding case, 
 but of persons, which makes it just or right for them ei- 
 ther to possess certain things, or to do certain actions: thus we 
 say a man has a right to liberty, to reputation, to his pro- 
 perty, to defend himself, &c. &c, and in all these cases, 
 whether the word right means law, or a quality of our actions, 
 or a quality of persons, it still imports that something is se- 
 cured to us or our actions, by reason of an agreement or 
 harmony subsisting between us or our actions, and some- 
 thing which is superior to both, and which is competent to 
 ordain the necessity of such agreement. In the following 
 sentence you have an example of the word rigbt, when used 
 in the three modes we have just mentioned. 'Natural 
 right (law) imputes no want of right (rectitude or 
 rightness) to actions, in doing which a man only exer- 
 cises his proper rights; which might again be paraphrased 
 thus: The fitness of things docs not permit us to impute 
 a icant of rectitude to him, who only exercises the jjri- 
 vileges allowed him by nature or law. 
 
 4 The word right is also frequently used adjectively; 
 thus we say, 'it is right for him to vindicate himself;' mean- 
 ing that it is just, that it is conformable to reason, or to 
 some law. So, also, we say, 'he is in the right', or 'he is 
 right.' By the first of these we mean that his opinion or 
 conduct conforms to truth, justice, law, &c; by the second, 
 that in what he has done, said or thought, he is conforma- 
 ble to truth &c. We presume that the foregoing modes of 
 using the word right will embrace every case of any inter- 
 est, at least to the student of law. 
 
 Right is expressed in French by the word droit, and sig- 
 nifies straight or direct. It is said to be derived from 1 the 
 Latin dirigo, which implies to conduct a person to some
 
 Lect. III.] OF THE RIGHTS OF NATURE. 105 
 
 certain end, by the shortest possible road. Hence, also, the 
 word Rule, which signifies a straight line drawn from one 
 point to another: so that the words right, rule, law, droit, 
 are synonymous. In Latin, as we have said, it is expres- 
 sed by the word jus, which signifies also a law. So in our 
 language, as in the French, we say 'a right line,' meaning 
 a straight line, for it is a law of that line to be the shortest 
 and most direct line which can be drawn from any given 
 point to another. The word Right is also supposed to be 
 derived from the past participle, rectum, from regere, and 
 imports an order; so that when a man demands his right, 
 he only asks that which it is ordered he shall have. Thus, 
 says the learned author of the Diversions of Purley, 'a. 
 right conduct — right reckoning — right line — right road — a 
 right action — to do right — to have right on one's side — to 
 be in the right, &c mean nothing more than that those 
 things have been ordered, or laid down.* 
 
 In this acceptation, all rights consist of powers vested in 
 us bv some order flowing from a source competent to grant 
 it, which may be either divine or human. 
 
 Whether the word Right is used adjectively or adverbi- 
 ally, it results in the same thing. Thus when we say a right 
 road, we mean that which is ordered or directed by reason 
 to be pursued by us, if we would attain the object we have in 
 view; and so of a right line, right reckoning, &c. So if 
 we say it is rightly done, we mean that it was done accord- 
 ing to the order given, whether it be dictated by reason, 
 by law, &c. 
 
 Right, then, is defined by Puffendorf to be 'that moral 
 quality by which we justly obtain the government of per- 
 sons, or the possession of things; or by force whereof we 
 may claim somewhat as due to us.' The claim must be 
 wholly just, or straight; it must conform to some order, 
 
 * Diver, of Pur. vol. i. 7. 
 14
 
 106 OF THE RIGHTS OF NATURE. [Lect. ID 
 
 rule or law; for if there be any deflexion from the right 
 line of the law, it is not a right, but an unjust pretension. 
 This is substantially the same definition as that given by 
 Grotius; but Rutherforth finds fault with it, and says that in- 
 stead of describing the quality itself, he has only described 
 the effect of it. 'Grotius,' says Rutherforth, 'only tells us 
 that it makes a man's actions or possessions just, but the 
 inquiry still is, what makes these things just?' We reply, 
 their consistency with law. We would, therefore, define 
 Right to be the power of doing an action, or possessing a 
 thing, consistently with the natural or civil law, or both. 
 Natural rights, consequently, are the powers of doing, and 
 of having, consistently with the law of nature; as civil 
 rights are the powers of doing and having consistently with 
 the Civil law, and the ends of the civil union. From these 
 definitions it appears that rights are moral, not physical 
 powers; or, in other words, we must distinguish Right 
 from mere power. A simple power is the faculty of acting 
 up to the measure of our strength or liberty; but Right is 
 something more; it is, in fact, this simple, natural power, 
 guided by a moral rule, which leads it directly to a certain 
 end. When, for example, it is viewed in relation to a state 
 of nature, it is indeed a power, but it is confined by the 
 natural law, which is nothing in itself but the rules of gene- 
 ral utility adapted to the state of nature, and ascertained by 
 conscience, reason, experience &c. so that we may again 
 describe natural rights to be our natural powers of acting 
 and possessing, directed and limited by the rules or princi- 
 ples of utility; which is clearly very different from mere 
 natural power, that importing nothing more than physical 
 strength, or the doing and possessing whatever our pow- 
 ers will enable us to do, without any regard to reason, con- 
 science or law. It is manifest that such a power can never be 
 a right, and cannot be claimed even by the gods, much less 
 by men; and, with reverence be it said, even Deity has his
 
 Lect. III.] OF THE RIGHTS OF NATURE. 107 
 
 own laws, and his omnipotence is no way impugned there- 
 by. It is true that power is sometimes ranked among 
 moral qualities; but it is only when it bears a particular 
 sense, which is in reality the same with that of Right, as it 
 has been just explained. Thus, for example, we say pater- 
 nal power, and mean paternal right: so, also, we say a pow- 
 er over one's estate, and mean a right over the estate. Puf- 
 fendorf, remarking on this confusion of terms, says, 'the 
 word right, tx vi termini, shows that the faculty was pro- 
 perly got, and properly possessed,'* which distinguishes it 
 from mere power. 
 
 As natural rights are all those powers which are 
 left unrestrained, except by the law of nature, and as 
 this law is founded on utility, we may say that natural 
 rights consist in the liberty of doing and possessing every 
 thing not forbidden by rules drawn from general utility. 
 Our individual rights are ascertained, in all states of so- 
 ciety, by an appeal to the general utility. In civil commu- 
 nities, that utility is settled by the general thought, and is 
 usually expressed in positive enactments: in a state of na- 
 ture it may be drawn, indeed, from general thought, but is 
 commanded only by the conscience and reason of each indi- 
 vidual. 
 
 (2.) Division of Rights are susceptible of several divi- 
 ri S hts - sions, and they have been divided in the 
 
 first place, into perfect and imperfect. Barbeyrac, in 
 his annotations on GrotTus, defines a perfect right to be 
 'one which we may assert by force, and the violation of 
 which is a wrong properly so called, whence it is easy to 
 judge what an imperfect right is.' Puffendorf, when speak- 
 ing of power, which he uses in that passage as synony- 
 mous with right, says that it is divided into perfect and im- 
 perfect; 'the former is that, the exercise of which may be 
 asserted even by force against those who endeavour to op- 
 
 *Puff. L- M. and N. book 1, ch. 1, sec. 20.
 
 108 OP THE RIGHTS OP NATURE. [Lect. III. 
 
 pose it; the latter is that, the exercise of which if any man 
 is prohibited, he may be said, indeed, to be unkindly dealt 
 with, yet he has no right to defend it by force.' 
 
 Bui on these definitions Rutherforth has observed, that 
 such an explanation would only lead an inquirer to another 
 question, viz. what rights may be thus asserted by force? 
 It is therefore the object of that very acute commentator 
 upon Grotius, to seek some further and better distinction 
 between these two species of right, than that which makes 
 the criterion of difference to consist merely in the one 
 being assertable by force, the other not. The first dif- 
 ference which he suggests between perfect and imperfect 
 rights, is the fixedness or determinateness of the thiiigs 
 to which we have a perfect right, or of the actions which 
 we have a like right to perform; and, on the other hand, 
 the vagueness or indelcrminuleness of those to which we 
 have only an imperfect right. * If, for example, a man 
 should demand his own property, the right which supports 
 that demand is, or may be, fixed and determinate. But if a 
 poor man seeks relief from those from whom he has even 
 good and strong reason to ask it, the right which supports 
 his request is an imperfect one; for its extent is wholly 
 vague and undefined. The second distinction relied upon 
 by Rutherforth is, that where no taw restrains a man from 
 carrying his right into actual execution, it is a perfect 
 one; but if the law in any respect restrains him from such 
 execution of it, the right is then imperfect: or, in other 
 words, our rights are perfect when we can assert them with- 
 out disturbing the rights of other men; and imperfect when 
 the rights of others stand in the way of those claimed by 
 us. Thus, for example, the defence of life is a perfect 
 right against those who have no right to take it away; but 
 benevolence or alms is an imperfect right, because I cannot 
 
 ] Ruth. Inst. 43.
 
 Lect. III.] OF THE RIGHTS OF NATURE. 109 
 
 coerce them, as this would be to infringe on the rights of 
 property in others. A perfect right, in fine, according to 
 Rutherforth, consists partly in its certainty, and partly in 
 the privilege, of demanding its exercise, because no law, 
 or rights of others, would be thereby infracted. 
 
 If, however, we examine this view of the subject a little 
 closely, we shall perceive that this able commentator has 
 not evinced his usual acuteness, and that, after all, he has 
 failed to establish the distinction at which he aims, as both 
 of his criterions may be resolved into those very distinc- 
 tions which he deems insufficient when stated by Barbey- 
 rac and Puffendorf. If the perfectness of a right depend, 
 in part, on there being no law to prevent its execution, 
 then certainly we may effectuate our right, as Barbeyrac 
 says, by force; for if there is no law to prevent its execu- 
 tion, there is no stopping point; and if we can execute it 
 at all, we may do it by fair or by forcible means. By de- 
 duction, therefore, from Rutherforth's own premises, Bar- 
 beyrac and Puffendorf would seem to be right in making 
 the just use of force the criterion of perfect rights; for Ru- 
 therforth, thus far, has done nothing more than expand the 
 doctrine that the right to maintain it by force is the test of 
 a perfect right, by his showing the reason why force may 
 be applied, viz. the absence of any restraining law. 
 
 Again: If we take the second clause of his second cri- 
 terion, viz. the absence or interference of other men's 
 rights, we cannot perceive that he has been more fortunate. 
 To call a right merely imperfect, when the rights of others 
 stand in the way of it, is, we think, not giving it its real 
 character; it can, we apprehend, be no right at all; and so, 
 on the other hand, the capacity to be carried into execu- 
 tion without interfering with the rights of other men, is a 
 cpjality essential to all rights, and is by no means more pe- 
 culiar to perfect, than to imperfect ones. Rejecting, how- 
 ever, with Rutherforth, Barbeyrac's criterion of force, and
 
 HO OF THE RIGHTS OP NATURE. [Lect. III. 
 
 rejecting also the former's own view, which makes a per- 
 fect right one which is not interfered with by any law, or 
 any right of another, since this differs in no comprehensi- 
 ble degree from that of Barbeyrac; if we then consider 
 Rutherforth's other criterion, viz. its fixedness or determi- 
 nateness, we are not sure that even this will be found meta- 
 physically more correct. We have defined a right to be 
 a power of doing an action, or of having a thing, con- 
 sistently with law. Now as all rights must, be consistent 
 •with law, an imperfect right seems somewhat unintelli- 
 gible, since it must then be something imperfectly consis- 
 tent with law! But as there are no degrees in consistency; 
 as there is no middle point between consistency and incon- 
 sistency; this quality of doing or having must be either con- 
 sistent or inconsistent with law: if it be the latter, it is not 
 a right of any kind; if it be the former, it is then simply a 
 right, and is not susceptible of degrees of perfectness. So, 
 likewise, that it is uncertain to what I have a right, or, in. 
 other words, that the indeterminateness of the object of the 
 right, should affect the quality of the right, is not logical, 
 as it appears to us. A man, on the other hand, may have a 
 very certain right to very undefined things, as to a claim 
 for damages, or to an estate whose boundaries are wholly 
 undefined. The difficulty in such case would be, not to 
 make the object certain, in order to originate or create a 
 perfect right, but to make the object certain, so that he might 
 enjoy a perfect right already in existence. From what has 
 been said, we are inclined to think that a less exceptionable 
 term than imperfect right might be adopted, when we speak 
 of a right to any indeterminate thing. 
 
 That writers on natural law have experienced some dif- 
 ficulty in assigning rights to their respective classes, under 
 this customary division, is evident from various instances 
 which might be cited. By some the same right has been 
 called perfect, which others call imperfect; and rights as-
 
 Lect.IlL] OF THE RIGHTS OP NATURE. Ill 
 
 sertable by force, have been classed under the latter head, 
 whilst some not assertable, have been called perfect. If 
 any right be perfect, we apprehend it is the right of pro- 
 perty; because the boundaries of it are very definable, and 
 it is capable of the most complete identification. Hence, 
 among individuals in a state of nature, the infringement of 
 a spot they have cultivated, and among nations also, (which 
 are considered to be in a state of nature towards each 
 other) the invasion of their territory, have always been 
 justly esteemed among the highest offences, because the 
 right is one of the highest, and is unquestionably perfect. 
 And though another individual or nation might design to 
 make ever so innocent a profit out of either, the permission 
 to do so from the owner of the soil, would be of grace 
 only, according to the received notion of perfect and im- 
 perfect rights. Such an innocent use or profit would come 
 under the definition of mere benevolence, to which all 
 agree that we have but an imperfect right. Yet Grotius 
 considers the right of drinking of a river running through 
 such land or territory, as clearly established; and so, also, 
 in regard to a passage by other nations through national do- 
 minions, with a peaceable disposition, and a necessary object, 
 he expressly declares that it may be obtained by force, if 
 denied to their previous request* Yet the right to territo- 
 rial dominions is perfect, and, on the other hand, the right 
 to such innocent profit or passage would seem to be clearly 
 assignable to the class of imperfect rights. The solution 
 of this difficulty is perhaps to be found by adverting par- 
 ticularly to the nature and origin of national property or 
 dominion. If we suppose that national property origi- 
 nated from occupancy in gross; that all nations are to be 
 considered in reference to each other, as individuals in a 
 state of nature; and that when nations became possessed of 
 
 * Grotius, lib. 2. ch. 2, sec. 13.
 
 112 OP THE RIGHTS OF NATURE. [Lect. Ill 
 
 dominion by this general occupancy, there was at the same 
 time an implied reservation to all nations of this right of 
 passage; then the two rights may both be perfect, and in 
 no way clash with each other. They are to be exercised 
 at different times, or for different purposes; they are rights 
 reserved in the same property dtverso intuitu; and hence 
 there is no inconsistency in according to a nation all the 
 perfect rights which belong to property, and, at the same 
 time, to all other nations the right of passage, which, in 
 this point of view, is also a perfect right, and is, to this 
 extent, what the civilians call a limitation, praedial service, 
 or easement. 
 
 Vattel who speaks, as well as Grotius, concerning the 
 right of passage of a nation, that is, of its troops, through 
 the territories of another, comes in effect to the same con- 
 clusion; but his reasoning shows how uncertain is tire no- 
 tion of some as to the distinction between perfect and im- 
 perfect rights. lie says that an innocent passage is due to all 
 nations; but that the sovereign of the nation of whom it is 
 asked, is to judge whether it be innocent. In all doubt- 
 ful cases, he says, the judgment of the proprietor is to be 
 referred to, and to be observed, though possibly unjust; 
 but yet, if the passage be unquestionably innocent, the na- 
 tion which is denied it, may assert its right by force. 
 Here appears to be confusion, or, at least, vague notions 
 throughout; a strange mixture of the qualities ascribed to 
 perfect and imperfect rights. First it is a right; then its 
 exercise is to be referred to the judgment of the nation 
 from whom it is demanded; if the matter be doubtful, the de- 
 nial must be respected; then, if it be clearly unjust to deny 
 it, the judgment of denial may be disregarded, and the 
 claim be vindicated by force. But it may be here asked, 
 who is to judge of its being doubtful or certain? If the 
 nation of whom the right is asked, be the sole judge in 
 doubtful cases, who is to form the previous judgment,
 
 Lett. III. J OF THE RIGHTS OF NATURE. 113 
 
 whether the same be doubtful or not? If this judgment be- 
 longs to the nation of whom the right is asked, it is clearly 
 an imperfect right; and if it belongs to the other, it would 
 seem to be perfect. If it be a perfect right, as we may 
 infer it is, from its being demandable in the last resort by 
 force, then there is no necessity for craving the permission 
 of the sovereign; and if we suppose it imperfect, then we 
 cannot, under any circumstances, maintain it by force. 
 This example of the uncertainty arising from the use of 
 these terms, concerns nations; but it is equally applicable 
 to individuals, and has been mentioned only to illustrate 
 the difficulty in which this phraseology often involves 
 writers on natural law, when treating on this division of 
 rights. Perhaps this may be gotten rid of by going on a 
 different principle, and giving new names, less calculated 
 to mislead, to these two classes of rights; and this may be 
 done, though we retain the distinction and qualities which 
 are now made to characterize them. While all rights are 
 equally rights, they are not equally important to socie- 
 ty; at least not all equally assertable and determinate: thus, 
 for example, the right of property is first to be observed, 
 because it has been found to be most essential to the support 
 of society. The right of a poor man to relief is of secon- 
 dary consequence, because if the right of property be 
 strictly observed, there will be few occasions for its ex- 
 ercise. We might, therefore, divide rights into primary 
 and secondary. We might call them so with equal pro- 
 priety, on the other principle, viz: of their being more or 
 less determinate or assertable, since a right is of small mo- 
 ment, and of little practical service to an individual or na- 
 tion, which cannot be defined nor asserted. We might, 
 therefore, call them also determinate or primary, and inde- 
 terminate or secondary rights. In conclusion of this sub- 
 ject; a right is said to be imperfect because its measure or 
 exact extent is undefined, and being undefined, it cannot 
 15
 
 114 OF THE RIGHTS OF NATURE. [Lcct. III. 
 
 be enforced. It is nevertheless a right, because it ought 
 to bind the conscience of him from whom it is due. Such 
 a right is perfectly consistent with natural law, though it 
 is not allowed to be enforced lest more mischief should 
 flow from its exaction by the one, than from its unjust re- 
 tention by the other. But to denominate it an imperfect 
 right because it is not assertable by force, appears to hold 
 it up as a right imperfectly consistent with law, since a per- 
 fect right is one which is perfectly consistent with law, as 
 indeed all rights must be. But if we call such a right se- 
 condary or indeterminate, we admit it to be as consistent 
 with law as a perfect right is; but its character is indicated 
 by the terms used, which show its undefined and inferior 
 nature. 
 
 The word right imports, ex vi termini, a correspondent 
 duty in some one to submit fully, or sab modo, to the 
 claim; hence Obligation and Right are correlative terms. 
 Where A has a right to something from B, the latter is 
 under an obligation to render that something to the former: 
 and as Rights have been divided into perfect and imperfect, 
 their correspondent obligations are similarly divided. 
 
 Much curious learning, and many subtile distinctions 
 are to be found in the books, on the subject of obligation. 
 To separate the dross from the ore is no easy task; and yet, 
 as the fashion of the day is for students very generally to 
 shun the pages of Grotius, Puffendorf, Wolfius, Hcincccius, 
 Cumberland, &c. &.c. and even Burlamaqui, Rutherforth, 
 and such more inviting authors, it appears to be essential, 
 in such preliminary lectures as the present, that we should 
 look into the whole of these writers, and present to you a 
 portion of their great and, we may say, estimable labours. 
 Rutherforlh, in commenting upon Grotius, when speaking 
 ot perfect and imperfect obligations, has adopted the opi- 
 nion that these several kinds of obligation may be distin- 
 guished by the following rule, viz: that obligations arising
 
 JLect. Ill.j OP THE RIGHTS OP NATURE. 115 
 
 out of the negative precepts 01 the law are perfect, — while 
 those which arise out of the affirmative precepts, are im- 
 perfect* Thus, for example, if it be declared to us, 'thou 
 shalt do no murder,' the obligation is said to be perfect, 
 for the matter of this negative precept is precise and deter- 
 minate, admitting of no liberty at all: but if the command 
 be, 'honour the aged' — 'respect the opinions of the learned 7 
 — 'venerate the good' &c. the obligations would be imper- 
 fect, because by these affirmative precepts we are left with 
 some discretion of acting, and of measuring out what we 
 may conceive to be the portion of honour, respect and ve- 
 neration due to these persons. On this rule (plausible as it 
 appears to be) we would remark, that besides what we 
 have said in regard to the use of the terms perfect and im- 
 perfect, when we spoke of rights, the deriving these two 
 classes of obligations from negative and affirmative precepts 
 of the law, is perhaps equally faulty, and more sophisti- 
 cal. The rule, we think, is calculated to mislead, for though 
 perfect obligations are often connected with negative laws, 
 yet the obligation, after all, is not affected by the phrase- 
 ology, but is generally wholly independent of it. Had it, 
 for example, been affirmatively enjoined us, 'respect life,' 
 the obligation to do no murder would have been equally 
 perfect, though the mode of expressing the legal precept 
 be different. So, on the other hand, had it been com- 
 manded thus, 'thou shalt not dishonour the aged, disrespect 
 the opinions of the learned, despise the good,' &c. though 
 the obligation is perfect in this case, as far as all dishonour, 
 irreverence &c. are forbidden, yet, in truth, the measure of 
 respect which is due in these cases cannot be greater, and 
 perhaps not as great as where the precept is affirmative ; for 
 such precept appears not only to exclude all dishonour &c. 
 but to require something positive, viz: actual manifestations 
 
 * 1 Ruth. 46.
 
 116 OF THE RIGHTS OF NATURE. Leet. III.] 
 
 of honour &c. Be all this, however, as it may, we cannot 
 perceive that the obligation is likely to be more efficient in 
 the one case, than in the other. Hence, all that can be 
 said on this rule, has been stated by Dr. Paley, viz: that 
 affirmative precepts of law commonly produce imperfect 
 obligations. Once ascertain with precision the nature of an 
 act, and the character of the obligation is easily known, 
 without reference to the language in which the prohibition 
 may be clothed. 
 
 We cannot forbear adverting at this time, to another dis- 
 tinction set up by Rutherforth, which, as it rests on the 
 premises to which we have partly objected, appears to us 
 to partake, in like degree, of their error. The distinction 
 to which we allude, is this. There are, says he, two max- 
 ims of natural law often injudiciously applied, and which 
 require explanation. The first is, 'that no right can be 
 founded on an injury;' and the second, 'that what could not 
 be clone lawfully, is valid after it is done.' The learned 
 writer illustrates these by supposing a command, 'thou 
 shalt not steal.' If one does steal, the act is void, and no 
 property is gained thereby in the res furtiva, because, 
 says he, the obligation not to steal was perfect, and all 
 power being taken away by the law, the act of taking is 
 wholly inoperative. To take with effect the property of 
 another against his command, would be to injure him, and 
 to clothe the violator of the law with a right; the act 
 therefore must be wholly void. If, on the other hand, the 
 law says, 'obey your parents,' and a son of full age marries 
 against their wishes, still the act is valid, though unlawful, 
 since the law cannot, as in the case first stated, suppose 
 that nothing should result from the act of marrying, as it 
 has not expressly taken away the power of acting. Here 
 the doctrine is, that if an imperfect obligation be violated, 
 yet in effect it is valid, though the act ought not to have 
 been done: and this agrees with the maxim, Quod non de-
 
 Lect. III.] OF THE RIGHTS OF NATURE. 117 
 
 bet fieri, factum valet. Rutherforth, however, qualifies 
 this doctrine by another, and admits that what is done in 
 opposition to imperfect duties, is not always valid, but 
 only when the constantly resulting effect is itself con- 
 sistent with law. If the effect of violating the imperfect 
 obligation be itself inconsistent with other obligations, 
 then the act is void: as, for example, if a son, notwithstand- 
 ing the law, 'obey your parents,' should marry his own 
 mother, here the respect which is due from the wife to her 
 husband, is said to be inconsistent with that respect which 
 is due from the son to a mother; and this constantly re- 
 sulting inconsistency would render the marriage void, 
 though the obligations on both sides were only imperfect. 
 In stating the marriage of a son with his mother, it is not 
 to be imagined that the learned author meant to admit its 
 validity on other or general grounds, because he has given 
 so trifling a reason for its nullity, as the supposed interfer- 
 ence of the respect due from a wife, with that due from a 
 son to his mother. Such a marriage is forbidden, we think, 
 no less by natural law, than by the express declaration 
 of the Divine law; but the example was stated by Ruth- 
 erforth probably from the want of a better; and he argues 
 the invalidity of the marriage solely on the ground we 
 have stated, merely as illustrative of the meaning of the 
 second maxim. 
 
 The simple meaning of the first maxim is, that no one 
 shall be permitted to derive advantage from his own wrong, 
 or, in other words, that no moral effect or right shall arise 
 from the breach of a perfect obligation. This rule applies 
 only to perfect obligations, and we have nothing to say 
 against it. The second maxim applies only to what are 
 called imperfect obligations, and, as a general rule, accord- 
 ing to Rutherforth gives effect and validity to all that is 
 aimed at by their infraction. We believe, however, that 
 if the examples which might be put of positive legal ef-
 
 118 OP THE RIGHTS OF NATURE. [Lect. III. 
 
 fects flowing from breaches of our imperfect duties or ob- 
 ligations, were strictly examined, it would be found that 
 the obligation was either not violated at all, or that it was 
 superseded by some superior right or duty, and that not a 
 single case, unaffected by extraneous circumstances, can be 
 put, of any legal advantage flowing from the actual in- 
 fraction of an imperfect obligation, any more than from the 
 violation of a perfect one. In the very example put by 
 Rutherforth, of a son marrying against the will of his pa- 
 rents, and thus violating the imperfect obligation flowing 
 from the command, 'obey your parents;' if the marriage 
 be valid, I say, in this case, it is because the obligation of 
 obedience did not in any respect extend to the requirement 
 of the parents' consent to a marriage; for if it did, the ob- 
 ligation would be perfect, and the marriage void; if it did 
 not, then the maxim has no application to it, and is without 
 meaning. 
 
 We have dwelt perhaps too long on the subject of per- 
 fect and imperfect rights and obligations, and now proceed 
 to the next division of rights, viz: into Natural and Ad- 
 ventitious. Those are denominated natural rights which 
 belong to men by the gift of nature, and which exist in that 
 state in which man was before the introduction of civil so- 
 ciety. Adventitious rights arise from civil and political 
 associations, or from any state of society in which pacts or 
 agreements would be made. Hence, all rights which re- 
 quire the intervention of some act of man, as sovereignty, 
 or jurisdiction of all kinds, and property (strictly so called) 
 of all kinds, moveable and immoveable, come under the 
 head of adventitious rights. Our right to freedom, invio- 
 lability of person, reputation, health &c. arc natural rights. 
 This division of rights corresponds essentially with that of 
 Aristotle, in his Nicomachcan Ethics, viz. into Original 
 and Voluntary. It is also the same with that of Maimoni- 
 des, and other Hebrew writer?, who distinguish between
 
 Lect. III.] OF THE RIGHTS OF NATURE. 119 
 
 ftl^O Metzooth, or Precepts, and E3*pl7 Hekim, or Sta- 
 tutes, the former being the sources of natural rights, the lat- 
 ter of voluntary or instituted rights.* This division also 
 corresponds, essentially, with that of Sir Wm. Blackstone 
 into Absolute and Relative rights. Absolute rights are 
 such as appertain to any individual, merely as a single per- 
 son; they are such as would belong to the person merely 
 of all individuals in a state of nature, and which all men 
 are entitled to enjoy, whether in or out of society. Rela- 
 tive rights are incident to men as members of society, 
 standing in various relations to each other. 
 
 It is here proper to remark, that the laws of nature are 
 by no means extinguished by the formation of societies, 
 and the enactment of positive laws; but, on the contrary, 
 the very basis of government and laws is laid in our natu- 
 ral rights; and the natural law itself also sustains the prin- 
 ciple, that as positive laws are the dictates of the publick 
 sense, they are therefore obligatory in foro conscientise. 
 Hence, not only are our natural rights protected by the na- 
 tural law, but our adventitious ones also, if they be acquired 
 consistently with that law. To violate adventitious rights 
 is, therefore, to sin against both the positive and the na- 
 tural law. It is consequently a great mistake in those 
 who think that civil laws create no natural or moral obli- 
 gation; and that the civil sanction is the only one which jfr. 
 secures obedience to civil laws. All our adventitious 
 rights, if acquired consistently with the law of nature, are 
 as much our own, and are as inviolable, as if they had been 
 directly and originally given by the natural law. 
 
 The third great division of rights is into Alienable 
 and Unalienable. Those rights which may be parted 
 with consistently with law, are alienable, whilst those 
 which the law forbids us to part with, are unalienable. This 
 
 * Maimo: Lib. 3. Cap. 26.
 
 120 OF THE RIGHTS OF NATURE. [Lect. 111. 
 
 is the usual description, and indeed no other could be given, 
 of these rights. This is sufficiently intelligible when we 
 speak of rights acquired in a civil state, and when the laws 
 are positive: but what rights shall be said to be unaliena- 
 ble in a state of nature, it would be no easy matter to de- 
 termine. The right of property is alienable, but the right 
 of a prince over his people is unalienable; these two in- 
 stances illustrate Dr. Paley's distinction, which is, that all 
 rights are unalienable where they originate in a contract 
 which, by the express, or necessarily implied terms thereof, 
 limit them to the person, whilst all others are alienable. 
 But while the distinction between alienable and unalienable 
 rights is sufficiently apparent when we speak of them in 
 civil society, and under positive laws or contracts, we must 
 adopt, we think, a different principle of distinction when 
 we are talking of a state of nature, and of the rights inci- 
 dent thereto. We would class among unalienable rights 
 such only whose retention and exercise are clearly essen- 
 tial to the well ordering of our life in such a state. In that 
 state, as well as any other, the right of property is aliena- 
 ble; and so is the right of mere physical liberty, (if we be 
 allowed the term:) but the right to moral liberty is una- 
 lienable, because its alienation would incapacitate us to di- 
 rect and control our duties to ourselves. It is a common 
 remark that political liberty is unalienable; and in a coun- 
 try jealous of its liberty, it is a salutary precept; yet, on 
 principle, there is no reason why it may not be alienated, 
 as far as it does not restrict our power of self control, and 
 the regulation of our conduct by the principles of morals. 
 It is so dear and valuable a right, that its alienation could 
 only be justified by the most pressing necessity, especially 
 as it would be so apt to involve consequentially the loss of 
 our civil and moral liberties. As to our natural rights, 
 some are, as we have stated, alienable, others not, accor- 
 ding as the rights are, or are not essential to our well
 
 Lect, ill] op THE RIGHTS OF NATURE. 12l 
 
 being. Our adventitious rights are all alienable, with the 
 qualification mentioned by Paley, which he applies, and 
 we think justly, as an invariable criterion. Liberty, as a 
 general rule, is to be classed among our alienable rights; 
 for a man may sell himself even unto the most abject sla- 
 very. But this is a subject we shall have occasion to advert 
 to again, before we close the present lecture. 
 
 . . . , , Having sufficiently explained the na- 
 
 (.'{.) In what the ... . 
 
 Rights of Nature con- ture and division of rights, we now pro- 
 ceed to consider in what the Rights of 
 Nature consist; and on this topick we shall be as concise 
 as may be consistent with the correct understanding of our 
 subject. All rights respect either our persons or our pro- 
 perty. Our natural or absolute rights, and our adventi- 
 tious or relative rights, embrace all rights which can possi- 
 bly arise either in a state of nature, or of the most com- 
 plex society. The primary object of society and law is 
 to protect our absolute rights, these being the gift of na- 
 ture, and essential to our well-being; the secondary object 
 of law is to guard us in our relative or adventitious rights, 
 these being posterior to, and merely consequent upon the 
 formation of society and laws. The list of our absolute 
 rights is, indeed, a very small one, when compared with 
 that of our relative ones; but the former are greatly the 
 most important, for without their secured possession, those 
 which are merely adventitious would be of no value 
 whatever, as it would be impossible to enjoy them. Let 
 us now advert to the nature of these natural or absolute 
 rights, which it is no less the province of the civil, than of 
 the natural law to protect. 
 
 The first great right of nature is that of life, and the 
 integrity of our body; of life, because it is necessary to 
 the enjoyment of every other right, and to the discharge 
 of all our obligations; and of the integrity of our body, 
 because injuries to our body involve danger to life; and even 
 16
 
 122 OV THE RIGHTS OF NATUBE. [Lcct. IH 
 
 wlien they do not. they injure our happiness, and incapaci- 
 tate us, in some degree, for the discharge of our various 
 functions and duties. This right appertains in an equal 
 degree to every human being, to the least considerable, as 
 well as the most important individual; and though the life 
 of one person is often of more value to families and socie- 
 ties than that of another, this does not affect the strength 
 or perfection of their respective rights to life, and integrity 
 of body; for this, among other reasons, that there is no 
 common tribunal to determine their relative importance, 
 and every individual, also, deems his own of paramount 
 value. This principle is illustrated in the case of the plank 
 at sea; for only superior strength would settle so melan- 
 choly a controversy, where the necessity is equally ex- 
 treme on both sides; and though the conqueror would be 
 right in thus saving himself at the expense of another, that 
 other would have been equally right, had force given the 
 same advantage to him, though his life to society or his fa- 
 mily would have been of little, or absolutely of no value. 
 Here then is a case of seemingly hostile, and yet co-exis- 
 tent rights. Perhaps there may be no great utility in de- 
 termining the abstract question, whether a man, knowing 
 his own life to be of less importance than another's, would 
 yet be justified in snatching from him the tabulam in 
 nmifragio, since instinctive terror would seldom, if ever, 
 in such extremity, leave the reason to operate, and since 
 the common sentiment of mankind would excuse, though 
 it could not applaud the act. There arc some cases, too, in 
 which the exercise of this right would do violence to emo- 
 tions so natural and strong in bosoms of sensibility, that 
 the cold predetermination to exercise it, seems, in the eye 
 of some, to betoken barbarity, or at least great selfishness 
 of temper. 
 
 That in the crisis of danger our instinctive tenaeiousness 
 of life should overmaster these emotions, is, say these ob-
 
 Lect.lll.! OF THE KIGHTS OF NATURE- 123 
 
 jectors, if not very magnanimous, at least excusable; but 
 the}' seem to doubt whether one who could deliberately 
 predetermine, on the supposition of such an extremity, to 
 sacrifice to the preservation of his own life, however 
 worthless, youth the most helpless, loveliness the most cap- 
 tivating, wisdom the most profound and authoritative, 
 would not justly deserve execration. I shall not undertake 
 to settle this question for the generous and magnanimous, 
 our business being, not to graduate emotions, but to adjust 
 rights. The exercise of the right of which we are speak- 
 ing, differs from that of some others which are in reality, 
 and in effect, equally harsh, chiefly in the immediate ap- 
 peal to our sympathies which takes place in the extreme 
 cases supposed. There is a similar lack of generosity, 
 nevertheless, in many other cases where the sympathies do 
 not happen to be so immediately called on. Philosophers 
 starve, childhood perishes from exposure, loveliness devi- 
 ates into crime, while many a dastard, who is conscious 
 that he lives to neither profit nor pleasure, feels no obliga- 
 tion, nor does society ascribe it to him, to dissipate for 
 their relief his abundant store. Such a man may not claim 
 the praise of generosity; but the right of property is not 
 the less clear on that account. Curtius and the Horatii 
 were justly lauded for their magnanimity in devoting them- 
 selves for the good of their country; yet the mass are not 
 execrable for acting on the more humble principle, that the 
 country is well taken care of, where every man takes care 
 of himself, and who therefore content themselves with per- 
 forming the military service enforced by law. Perhaps, 
 therefore, the disesteem we should feel for one who avowed 
 such a predetermination, is rather for the obduracy than 
 the injustice he betrays. We feel the same kind of emotion 
 against a surgeon who talks coldly of an operation, though 
 we certainly could not blame him should he avow his de*
 
 124 OF THE RIGHTS OF NATURE. [Lect. Ill 
 
 termination to go through it firmly, and ought even to 
 commend that firmness as a useful quality. 
 
 But it is not every degree of necessity, though very 
 strong and pressing, in which this principle of the tabula 
 in ncmfragio is applicable; for there were no end of vio- 
 lence and slaughter, if a man, under the pressure of even a 
 severe calamity, might for his own advantage, sacrifice any 
 life which he deemed of inferior important to his own. I 
 have a right to wrench, if 1 can, the last biscuit from my 
 companion on the wreck; but I would not be justified in 
 killing half the crew of my vessel, in order to save the 
 other half from a short allowance which might engender 
 disease, or prove highly injurious to a delicate person. I 
 have a right to seize the food of the traveller in the same 
 desert with myself, if I know that otherwise I must infal- 
 libly starve before I can obtain relief; but it were certainly 
 no justification for this, that the next post house was so 
 distant that I was likely to grow ill from the want of food. 
 It is not easy to measure every melancholy case of this 
 sort by the principle assumed; but this is the case with 
 many other rights, especially those of the imperfect sort. 
 The right we have considered, being beyond the control of 
 positive laws, is, like our natural rights before the institu- 
 tion of society, uncertain in its limits, and in its applica- 
 tion.* The right to life, therefore, we conclude to be the 
 
 * A shocking instance of the exercise of this extreme right, occurred in 
 England not long since. A carpenter, with his son, was engaged in re- 
 pairing a steeple in a country town. They were at a lofty point of the 
 spire, the father a few feet below the son, when the latter was observed by 
 his agonized parent to be seized with a vertigo. If he fell in a straight 
 line, he would certainly take his father along with him, and both would 
 perish. The father's life was necessary to the support of the boy's 
 mother, and many brothers. The wretched father's resolution was taken, 
 and, disengaging the ladder, and giving it a tilt in a direction from himself, 
 he precipitated his child to the earth. I am not aware (hat he was ever 
 tried for this act of dreadful necessity.
 
 Lect. Ill | OF J'HK RIGHTS OF NATURE. 125 
 
 most certain, general and valuable of all our natural rights, 
 and to stand first among our perfect rights, (adopting the 
 received division,) since it may be vindicated by force, 
 without measure, and to the point of sacrificing the lives of 
 any number of assailants. 
 
 Our right to life commences before we are born, and is 
 protected, both by the natural and civil law, as soon as the 
 foetus can move in ventre sa mere. By the law of England 
 in the time of Bracton, abortion procured by design, or 
 any violence done to a woman so as to produce miscarriage, 
 was adjudged to be manslaughter. But this law was 
 changed, and it was deemed merely a heinous misdemean- 
 or, until the late statute 43 Geo. 3, ch. 5S, rendered it a 
 capital offence. But if the child be born alive, and then 
 die in consequence of previous violence done to the mother, 
 it was always considered manslaughter, and by the natural 
 law would, under circumstances, incur the guilt of mur- 
 der. 
 
 The second great natural right which claims our atten- 
 tion, is to the fruits of our bodily and mental labour. It is 
 certainly just that what a man obtains by the exertions of 
 his mind, or of his hands, or both combined, should be his 
 own; and this appears clear enough where the property is 
 the product of mental labour alone. But as to corporal 
 things, whereon man's ingenuity and labour have been be- 
 stowed, although the justice of appropriation is equal, there 
 has been some refined reasoning, into which, however, it 
 is not my intention to enter minutely. 
 
 Property, as it is modified and guarded in civilized 
 states, is undoubtedly the creature of positive law; yet 
 such, under all circumstances of mankind, is the necessity 
 of some degree of appropriation of the soil and its pro- 
 ducts, that we can hardly imagine the rudest state of nature 
 without some notion of exclusive property. Even when 
 all the fruits of the earth made but a common stock, there
 
 126 OF THE RIGHTS OK NATURE. | Lect. III. 
 
 must for convenience' sake, have been some act acknow- 
 ledged as the sign of appropriation, and the beginning of 
 ownership, or there had been no end to conflicts; and the 
 fruit which I had plucked from the tree, had been snatch- 
 ed from my lips ere I had tasted it. Where all things be- 
 long equally to all, there is no act of an individual which 
 possesses the intrinsick property (so to speak) of making 
 it his own; yet such is the necessity of some common con- 
 sent in this matter, that it required men, as we have said, 
 to have made only the first step in association, to discover 
 the expedience, nay necessity, of such common and implied 
 compact; for implied it most probably would be, and un- 
 doubtedly is at this day, whenever one tribe, however 
 rude, approaches the possession of another. 
 
 We have said that there is no act of an individual which 
 can, independently of such consent, bestow on him the 
 ownership of any portion of the earth, or of its fruits; so 
 that the right of property, like all other rights, draws its 
 existence from consent, or acknowledged utility or neces- 
 sity. It is true that Mr. Locke has assigned to property a 
 different origin; for, in his opinion, things originally com- 
 mon, became the property of the first occupant, not by 
 that tacit consent or agreement by which, according to the 
 doctrine of Grotius and others on this subject, occupancy 
 was recognized as the mark of ownership, but solely in vir- 
 tue of the occupant's mixing with them the labour of his 
 body, which is his oivn, and thus makes the things them- 
 selves his own. Thus, for example, according to Locke's 
 theory, if any one removed fruit from a tree to his own 
 cave or hut, or fashioned the bough of the same tree into 
 a spear; in both these acts there was a labour of his own 
 mixed with the thing taken, and by this mixture, or remo- 
 ving of them out of the state of nature, the things be- 
 came the property of such person; for if any other person 
 should take the fruit thus removed, or the bough thus fash-
 
 Lcct. III. J OF THE RIGHTS OF NATURE. 127 
 
 ioned, he took, at the same time, the labour bestowed on 
 them, which never was common property, and to which 
 he therefore could have no right. Thus, while Grotius 
 considers occupancy as the signal of appropriation, agreed 
 on by the common consent of mankind, Locke ascribes 
 to occupancy the intrinsick quality of producing property 
 itself, independently of all consent, inasmuch as the very 
 act of occupancy takes the things out of their natural state, 
 and blends with them that which never was in common; an 
 opinion which does not seem to be justified by his reason- 
 ing, or by the nature of the act. We think it will be al- 
 allowed, that if I take the raw material from another man, 
 as, if I take wood from my neighbour, and expend on it 
 the greatest skill and labour imaginable, my original 
 wrongful taking will not be justified on that account; or, 
 in other words, it is nothing to my neighbour how indus- 
 triously soever I have exerted myself on the materials of 
 which I despoiled him, for they are not the less his own. 
 Nor is the case at all altered by the circumstance of the 
 material taken in a state of nature, having been common to 
 all when the occupant chose to bestow his labour on it; 
 for what is the meaning of its being common to all, but 
 that instead of one person having property, twenty, a hun- 
 dred, a thousand, or any number have a joint property, in 
 which case the many would have the same kind of right 
 which, when there is only one, we have supposed in that 
 one. Here, therefore, is no other difference than that in- 
 stead of taking from one, I take from twenty, a thousand, 
 or more; and how this alters the case, cannot well be made 
 to appear. As long as I take what I need for the present, 
 I take by the right which is common to all, but which, 
 however, is not the right of property: but the moment 1 
 take more than serves my present want, I exercise an act 
 of property or ownership contrary in the first instance 
 to the common right, and not justified by any subsequent
 
 128 
 
 OF THE RIGHTS OF NATURE- [Lect. 111. 
 
 labour bestowed, or skill exerted on it. We cannot, there- 
 fore, but adhere to the opinion of Grotius, adopted by 
 most writers, and consider occupancy as the commence- 
 ment of property, and this, not in virtue of any inherent 
 quality in occupancy, but solely by reason of the common 
 consent of mankind, involved in the received notion of oc- 
 cupancy, which is the most easy, obvious and certain ex- 
 ternal act by which an intention to appropriate can be 
 declared. The opinion of Locke, however, has been unqua- 
 lifiedly adopted by Sir Wm. Blackstcne, who advances it 
 as a received doctrine. This is certainly not the case, and 
 the learned commentator has manifestly confounded the 
 common right of using, with occupancy; or, rather, he has 
 not, we think, sufficiently adverted to the nature of the act 
 of occupancy, and the consequences which would result 
 from the doctrine, that occupancy, and the bestowing of 
 bodily labour, should per se create property, independently 
 of all consent. 
 
 The common consent to which we refer occupancy, 
 may well be presumed to have existed in the rudest 
 condition of mankind, since, though a community of 
 lands be now and then found among savage tribes at this 
 day, the notion of property in moveables is universal. And 
 well indeed it may be, as it is impossible to imagine any 
 state of mankind in which a consent of this nature is not 
 essential even for continuing the rudest companionship; 
 and as society became extended and refined, the necessity 
 of property became every day more apparent. The same 
 may be said of the fruits of intellectual toil, in regard to 
 which the notions of Mr. Locke may have some degree 
 of justness. Literary property, or the right of an au- 
 thor to the fruits of his mental exertions, has been re- 
 garded as an important natural right, and, as such, has 
 often been the object of special legislation, and of grave
 
 Lect. III.] OF THE BIGHTS OF NATURE. 129 
 
 and learned judicial discussion.* It would be out of place, 
 at this time, to state the enlightened arguments that have 
 taken place in England on this point; but it is manifest, 
 from the cases to which we have referred, that the able 
 judges who decided them, were familiar with the doctrines 
 of natural jurisprudence, and sought most of their lights 
 from the great code of natural law. We only allude to this 
 fact now, in order to assure the student that the principles 
 of this primeval law can never become obsolete, and that 
 he will have more frequent occasion to refer to them in the 
 discussions of the forum and the senate, than he may 
 perhaps at this time imagine. Municipal or positive law 
 has, no doubt, done much towards denning, and expressly 
 guarding our natural rights; but it is quite certain that 
 there is still much room for argument and illustration 
 from the principles of that copious fountain, the law natu- 
 ral,' which can never become a code of written reason; 
 and that he who has studied with care the pages of the 
 great luminaries of the natural law, will find how much 
 more valuable becomes the knowledge gained by him from 
 the volumes of a Coke, a Gilbert, a Blackstone, a Fearne, 
 or a Preston. 
 
 A third right of nature, to which we now advert, is re- 
 putation. On this subject it is sufficient to observe, that the 
 preservation of a good name is not less essential to the pur- 
 poses of life, than it is agreeable to the conscience which 
 nature hath implanted within us. To observe our pro- 
 mises, to regard an oath, to respect the property of our 
 neighbour, are circumstances essential to our conversation 
 with others, because without them we cannot acquire the 
 
 * Vide Miller v. Taylor, 4 Burrow's Reports, 2303. Donaldson v. Beckct, 
 7 Brown's Parliamentary Cases, 88. Macklin v. Richardson, Ambler's Re- 
 ports, 694. Clemcnti v. Walker, 2 Barnwall and Cresswell's Reports, 861. 
 Gyles v. Wilcox. 2 Atkinson's Reports, 111. WilUns v. Aikin, 17 Vesey'» 
 Reports, 422. 
 17
 
 130 
 
 OF THE RIGHTS OF NATURE. [Lcct. 1H. 
 
 confidence and esteem which would induce others to culti- 
 vate an intercourse with us; and therefore a reputation for 
 these, and other virtuous qualities, is essential to us in the 
 business of men. A fair name is also highly prized by us 
 from that inborn desire which we all possess alike, however 
 our modes of obtaining it may differ, of gaining the love or 
 admiration of our fellows; and whether the desire of that 
 love and admiration springs from the innate perception of the 
 intrinsick beauty of virtue, or from our sense of their ope- 
 ration on our interests, they are not the less sought and 
 loved, and ranked amon^ our dearest and least alienable 
 possessions. In the simple intercourse which man has with 
 man in a state of nature, an honest and unspotted reputa- 
 tion is still highly valuable: it is, indeed, the only means 
 he has to extend and strengthen the partial communion he 
 may have with the species. In society, reputation is pro- 
 tected as a natural right of inestimable value, and the penal- 
 ties against slander and libel have been, by the laws of most 
 countries, extremely severe. But as this subject more pro- 
 perly belongs to a distinct part of our course, and as we 
 shall be obliged to advert to it again, in the sixth lecture, 
 we decline at this time any inquiry into the enactments 
 of positive law against the infraction of this valuable natu- 
 ral right. 
 
 A fourth natural right is that of freedom from restraint, 
 or personal liberty. The rights of personal security, of 
 private property, of reputation, and of personal liberty, 
 have been always regarded as the cardinal or most valua- 
 ble of our natural rights; and are indeed the divisions to 
 which, perhaps, every species of natural right must be re- 
 ferred. 
 
 The right of liberty, simple as its nature may at first 
 appear, has been a topick of much discussion, and of very 
 contradictory opinion. The word liberty, considered gen- 
 erally, may perhaps be defined as the power which a man 

 
 Lect. III-l 6F THE RIGHTS OP NATURE. 131 
 
 has to act as he thinks fit, where no valid law or obliga- 
 tion restrains him. Natural liberty, therefore, is the power 
 of acting as we please, except where we are restrained by the 
 law of nature. Liberty, consequently, is not the power of 
 doing whatever we please, although the word is sometimes 
 used in that sense, for we hear in familiar speech of such 
 phrases as these; 'you are at liberty to kill him, but if you 
 do, you'll suffer for it;' 'you are at liberty to take it, but 
 you'll be punished for theft.' Now, according to the defi- 
 nition just given, a man would in neither of these cases be 
 at liberty to act in the way mentioned; for he would be 
 forbidden by the law of nature, and perhaps by positive 
 law also; and in truth, in using such a form of speech, we 
 should only be substituting the word liberty for physical 
 power, which is a very different thing from liberty, or na- 
 tural right. A man may indeed, on a principle of calcula- 
 tion, be willing to do the act, and submit to the sanction 
 or penalty of the law; but still he cannot be said to be at 
 liberty to do the act; he has the physical, but not the 
 moral ability to do it; and the word liberty, when properly 
 used, is always applied to man wholly in reference to him 
 as a moral agent, though, as we have already stated, it is 
 sometimes incorrectly used without this limitation. Hence 
 we find a distinction in the books between natural and sa- 
 vage liberty, which last, in truth, is not liberty at all. Sa- 
 vage liberty is that which limits its enterprises only by the 
 strength of the individual, or what of the united physical 
 power of others he may be able to wield by his influence, 
 without regard to rights of any kind. Such a liberty is 
 unhappily often used by bad men in all stages of society, 
 but has never been acknowledged, except by Mr. Hobbes 
 and his disciples, to belong, of right, to any individual or 
 nation, in any stage, however rude, of human existence. 
 Natural liberty, on the other hand, is subject to the laws, 
 or, more properly speaking, the obligations of the state of
 
 j 32 OF THE RIGHTS OF NATURE. [Led III. 
 
 nature, which are those pertaining to humanity at large; 
 and, as was laconically remarked by Montesquieu in rela- 
 tion to civil liberty, 'if a man could do what these laws 
 forbid, he could no longer be possessed of liberty, since all 
 his fellow men would have the same power;'* in other 
 words, that could with no justice be called liberty, which, 
 while it exercised an uncontrolled independence as to 
 others, was proportionably exposed to some fortuitous ty- 
 ranny from other quarters. As the liberty of physical mo- 
 tion must be regulated by the laws which nature hath im- 
 pressed upon matter, so moral liberty ought to be regulated 
 by the ties of mutual obligation. Since in a state of nature 
 there exist no positive laws; since there are no lawgivers 
 to be respected, no magistrates to be obeyed, our liberty 
 in this state is under no other restriction than such as 
 springs from our intrinsick nature, and essential constitu- 
 tion; and these restrictions are ascertained by the lights of 
 reason and conscience. 
 
 Liberty has different acceptations, according as it is va- 
 ried by circumstances, or the relations in which persons 
 may stand. Hence liberty has been said to be of the seven 
 following kinds: 1. Savage liberty, or the libertas faciendi 
 quidlibet. 2. Natural or moral liberty. 3. Social liberty, 
 4. Simple freedom from confinement. 5. Relative liberty, 
 or Facultas ejus quod cut que facer e libet, nisi quid vi 
 aut jure prohibetur. 6. Civil liberty: and 7. Political 
 liberty. Perhaps this classification is too minute, for some 
 of the kinds are scarcely distinguishable from each other. 
 Savage liberty is probably not entitled to be regarded as 
 liberty at all, for the reasons just given, and for others 
 which will be mentioned hereafter. Social liberty is dis- 
 tinguished from civil liberty, by a very nice, and almost 
 imperceptible line. The fourth kind, viz. Simple freedom 
 
 * Mont. Spir. of T.aws, book 1. ch. 3.
 
 Lect. III.] OF THE RIGHTS OF NATURE. 133 
 
 from confinement, is rather an actual condition, than a fa- 
 culty, or right; and as a right, it is included in several of 
 the other kinds. The seventh, viz. Relative liberty, seems 
 to convey no definite meaning, as distinguishable from na- 
 tural and civil liberty. For a detailed explanation of these 
 several kinds of liberty, we refer the student to the author- 
 ities below.* In the sixth lecture, however, we shall have 
 occasion to explain with care most of the foregoing divi- 
 sions of liberty. 
 
 (4.) Liberty is sub- We shall conclude the present lecture 
 ject by natural law .,, , . a ... , , ,, .. . 
 
 to three species of Wlth br,efl y P ointin g °ut to you the limi- 
 restriction. tations to which liberty is subjected by 
 
 the principles of the natural law. The restriction to which 
 we allude is three-fold, arising, first, from our duty towards 
 God; secondly, from our duty towards mankind; and 
 thirdly, from our duty to ourselves. These we shall con- 
 sider in an inverted order, beginning with our duty to- 
 wards ourselves. 
 
 1st. It is evident from the structure of our bodies, and 
 from the temper of our minds, that both are adapted to af- 
 ford us great enjoyment and pleasure, including under the 
 word pleasure all the utilities of life; which extended idea 
 is strictly philosophical under other systems besides that 
 of Epicurus. But neither of them will arrive at these de- 
 sirable ends without a proper order and. economy of them; 
 so that health of body, and soundness of mind, (the mens 
 sana in corpore sano,) are the foundation of all our plea- 
 sures, and all the utilities of life. It follows hence, that 
 it is a high duty in us to preserve our health, and to culti- 
 vate our intellect, so that the body may be guarded against 
 injury and premature decay, and the mind be preserved 
 
 * 1 Burlamaqui's N. Law, chap. 3, sec. 15. 1 Tucker's Blackstone, 124, 
 125. 145. 2 Rutherforth's Institutes, 374. 388. 1 Evans' Pothier on Obliga- 
 tions, 51. Montesquieu's Spirit of Laws, Book xi. ch. 15. 

 
 134 OF THE RIGHTS OF NATURE. [Lcct. III. 
 
 from the weeds of ignorance and vice, during the usual 
 term of life allotted by Providence to man. To this class 
 of duties belong temperance, self-government, industry, 
 and the pursuit of knowledge, qualities which are hardly 
 less grateful in their influence on our fellows, than they 
 are useful to ourselves. 
 
 2. Our natural liberty is limited, in the next place, by 
 our duty towards mankind. If we desire to live peaceably 
 with others, to derive our proper enjoyment from the 
 goods of nature, and make the best use of our faculties, we 
 must show to others that justice and benevolence which 
 will conciliate their confidence and affections, and engage 
 them to a similar demeanour to ourselves. This restric- 
 tion of our liberty, while it is thus essential to the purposes 
 of life, is happily heightened by that desire of mutual 
 esteem which, as we have elsewhere remarked, causes the 
 sacrifice of many selfish gratifications. And if all these 
 fail in producing a proper temper and conduct towards our 
 species, there is another principle which is yet loftier and 
 more solemn than all the rest, and which has been appeal- 
 ed to in all ages, as the foundation and principal bulwark 
 of human society, laws and obligations: we allude to, 
 
 3. Our duty towards God. If there were no other rea- 
 son for restricting our natural liberty by obedience to the 
 will of God, than his unlimited power over our destinies, 
 it were of itself sufficient. But we discover that this Be- 
 ing adds infinite benevolence to unlimited power, and that 
 all his laws are promotive of our felicity: and moreover, 
 as his benevolence embraces all mankind no less than our- 
 selves, we cannot violate the laws of justice or benevolence 
 towards any of our species, without at the same time op- 
 posing his designs. Our duty therefore, both towards 
 others and ourselves, is a part of our duty towards God. 
 But our more particular duty towards him, is to entertain 
 just notions of, and affections towards him; firmly to be-
 
 Lect. III.] OF THE RIGHTS OF NATURE. 135 
 
 lieve his existence, wisdom, power and goodness; and to 
 show these by our deportment in regard to him, as well as 
 by the discharge of our duties towards our fellows. 
 
 All these restrictions on our natural liberty obtain in 
 every modification of our existence. 
 
 Our natural liberty being thus limited in the three ways 
 we have stated, it has been made a question whether we 
 can voluntarily lay it under a general restriction; that is, 
 whether liberty be an alienable right. This topick has been 
 alluded to in the present lecture, with a promise to recur 
 to it. To determine this question in the manner that Ru- 
 therforth has done, by merely saying that liberty is alien- 
 able 'because all our rights are alienable as far as it is not 
 contrary to any law for us to part with them,' is, per- 
 haps, to determine right, but would not distinguish be- 
 tween the different and distinct ideas which are compre- 
 hended in the same phraseology. That I have a right to 
 restrain my liberty, that is, to part with it to a certain ex- 
 tent, is obvious enough from my daily obliging myself by 
 contracts and promises, which I am not only at liberty, but 
 bound in duty to perform. Unquestionably, too, I am un- 
 der an obligation to restrain my liberty according to the 
 behests of the laws; nor can it be questioned that a man 
 may sell his labour to another, even for life; nay, fur- 
 ther, he may bind himself by all the obligations of slavery. 
 So, likewise, a man may subject himself to imprison- 
 ment for life, under the influence of some extraordinary 
 motive, such as to save the life of a worthy man, or the life 
 of a parent necessary to his children. The doubt as to the 
 alienable nature of liberty, has, we conceive, arisen from 
 two causes; first, from not properly ascertaining the nature 
 and extent of the obligations of slavery; and secondly, 
 from not correctly distinguishing between natural liberty, 
 and civil and political liberty. It has been urged, in the 
 first place, that liberty is not alienable, for that no one
 
 136 OF THE RIGHTS OF NATURE- [Lect. III. 
 
 can sell himself into slavery, that being a perfect despot- 
 ism, or an absolute power in the master to control all the 
 actions of the slave, for the sole emolument of the master. 
 If this be the legitimate meaning of slavery, it must be ad- 
 mitted that liberty cannot be thus alienated. But this is 
 assuming the very ground of the controversy; we do not 
 think that this is the nature and extent of slavery. The 
 master's rights, and the slave's obligations, must always be 
 subject to the restraints of the natural law. The power 
 of the master may be called absolute, or a perfect des- 
 potism; but still these terms do not in se imply the ab- 
 sence of all limitation, but simply that the power is abso- 
 lute or perfect, because restricted by no positive compact 
 or agreement between the parties, and possibly by no ex- 
 press law of man. Thus, for example, parental power is 
 said to be absolute, because there may be no positive limi- 
 tations on it; but there are many implied restrictions, for 
 it is governed by a superior law, viz. that of God, of con- 
 science, of nature. So, also, civil despotism is said to be 
 absolute, as there are no constitutional nor positive limita- 
 tions on it; but yet it is, from its nature, limited by the 
 laws of God and nature, and by the ends of the civil union. 
 With a like understanding of the word slavery, there 
 can be no doubt that liberty is alienable to every extent 
 that does not import a power in another to direct all our 
 actions, without any reference to the laws of nature or of 
 God. To this extent no man can go, because no one pos- 
 sesses such savage and unlimited liberty, and, consequently, 
 cannot alienate to another what he does not himself pos- 
 sess. Could this be done, all the obligations of man might 
 be cancelled, and that might be effected per obliquum, 
 which could not lawfully be done per directum. Under- 
 standing slavery, then, in the sense we have defined it, 
 we can see no reason for supposing that the law of nature 
 forbids the alienation of liberty, even to the extent of
 
 Lect. HI] OF THE RIGHTS OF NATURE. 13? 
 
 placing the person who parts with it, in a state of sla- 
 very. 
 
 The second cause of errour on this head consists, as we 
 have stated, in not properly distinguishing between natural 
 liberty, and civil and political liberty. Men in society, 
 feeling the advantages of certain laws, and a defined con- 
 stitution, have endeavoured to establish it as a maxim, that 
 though natural liberty may be alienable, yet civil and poli- 
 tical liberty are not. And many persons, not adverting to 
 the various kinds of liberty, have erroneously contended 
 that liberty generally is unalienable. The alienation of na- 
 tural liberty, when it places the person in a state of slavery, 
 has been supposed by many writers to involve necessarily 
 the posterity of such person in the same condition. We 
 shall have occasion hereafter to comment on this doctrine, 
 which we conceive to be founded on a tissue of sophistical 
 reasoning. So also, as it is said that the alienation of 
 civil and political liberty seems necessarily to implicate 
 the rights of the posterity of those who make it, it has 
 been contended that the first of these cannot be alienated, 
 as society is constituted, without involving the slavery of 
 our offspring; and that the second cannot be renounced by 
 its possessors, without endangering the safety of the other. 
 In regard to the individual himself, we entertain no doubt 
 as to his right, under the lex naturse, to alienate either his 
 civil, or his political liberty. There is nothing immoral, 
 wrong, or inconsistent with natural law, in an individual's 
 expatriating himself, or becoming a mere cosmopolite, that 
 is, a citizen or subject of no country. He may contract to 
 relinquish his own civil and political rights entirely; but 
 how far these may be alienated so as to involve our posteri- 
 ty, will be a topick for future inquiry. When, however, we 
 consider that these rights are essential to our safety, to a 
 proper tone of mind, to intellectual and moral improve- 
 ment, it cannot be doubted that he who yields them up, on 
 IS
 
 138 OP THE RIGHTS OF NATURE. [Lect. Ill, 
 
 any occasion whatever when they can be asserted with any 
 prospect of success, and with less sacrifice than that which 
 may arise from their alienation, commits such a crime 
 against a prudent economy of his rights, as merits the ap- 
 pellation of a great enormity. 
 
 We have stated that a man has no right to alienate his 
 liberty, so as to give to another a power to command what 
 is contrary to the rights and obligations of nature. So, 
 also, there are many rights essential in themselves to hu- 
 man nature, and whose exercise we have neither a moral 
 nor physical power to restrain; such, for example, as the 
 right and duty of reverence to God, and the freedom of 
 thought, especially on matters of conscience and religion; 
 the persecution of which is surely the vilest infringement 
 of human liberty that despotism ever attempted, since it 
 was a matter which punishment might reach, but could ne- 
 ver amend or prevent, and was therefore no longer pun- 
 ishment, but cruelty and malice. So, too, the right to 
 judge in one's own cause, may be called unalienable, be- 
 cause it is, in truth, involuntary, and in society we in 
 strictness give up the right to redress, rather than the 
 right to decide. So, also, the cultivation of virtue, or the 
 mind, though its outward acts may be restrained by despo- 
 tism on the one hand, or publick licentiousness and turbu- 
 lence on the other, is the duty cf all situations alike, and 
 is the irrefragable obligation, as well as the unalienable 
 right of man, in all places, and under all circumstances. 
 The decrees of despots, therefore, which would limit the 
 diffusion of knowledge, and keep the mind enthralled in 
 ignorance, are the most alarming acts of tyrannical power, 
 and should be met at once by the most decided opposition 
 of the people. So, on the other hand, that unworthy jea- 
 lousy which is sometimes manifested by the people in re- 
 publicks, against knowledge, and the power and influence 
 which it justly confers, may be equally detrimental, and
 
 Lect. III.] OF THE RIGHTS OF NATURE. 139 
 
 should be obviated in the only effectual way, by a judici- 
 ous use of that power, and by timely and constant exer- 
 tions to enlighten the general mind. Little, however, of 
 this narrow jealousy is to be seen among the people of this 
 country; and that little is diminishing daily. But whether 
 the mind be shackled, and compressed within unnatural 
 limits, through the fear of despots, or the jealousy of an 
 ignorant multitude, the effect is the same, and the infringe- 
 ment of our natural liberty is equally enormous and unjust. 
 Happy is the country where the people are enlightened as 
 well as free; and free must that country soon become, if 
 the people are enlightened. There are a few remaining 
 rights which are referred to the natural law, and which are 
 yet to be briefly considered; with these we shall close the 
 present lecture. 
 
 A fifth right of nature is said to be that of patrimony, 
 or the domestic right of children to property acquired by 
 their parents. This right has been questioned by some 
 judicious writers, by whom it has been contended that we 
 can have no property by the law of nature, beyond the 
 mere demands for sustenance; that nothing can be assumed 
 beyond what is required for our use; and, consequently, 
 that we can have no control over our acquisitions, after 
 our power to use them has ceased by death. It is further 
 argued by them, that even if they be greatly improved by 
 our labour, it is sufficient if they have thereby become more 
 advantageous to ourselves, and that they can found no right 
 in us to transmit them to others after death: hence, say they, 
 such qualified property ends with our life, and then reverts 
 to the common stock, and becomes again subjected to the 
 claim of occupancy. They infer from this course of argu- 
 ment, that children have no better claim to their parents' 
 acquisitions, than others have; and that even in civil socie- 
 ty, there needs the sanction of law, not only to clothe them 
 with a superiour claim, but also to transmit such properly
 
 140 OF THE RIGHTS OF NATURE. [Led. ill. 
 
 in a prescribed and secured course of descent: So that in- 
 dependently of law, a man's estate, even in society, would 
 be a subject of occupancy, and the claim of strangers would 
 be equally valid by such occupancy, with that of the chil- 
 dren or other relatives of the deceased. The better opi- 
 nion, however, on this subject is wholly different, viz. 
 that property beyond the wants of man may be acquired 
 in a state of nature, and in society, independently of law; 
 that such property is not only alienable inter vivos, but 
 that children have a natural and superiour claim to the pro- 
 perty of their parents over strangers; that it does not re- 
 vert by the lex naturoe to the common stock; and that in 
 society it needs not the aid of law to vest such a right in 
 the children. Both Grotius* and Puffendorf have argued 
 this point full}', in favour of the paramount claim of off- 
 spring, and other relatives of a deceased person who has 
 been silent as to his wishes in relation to the disposition of 
 his property after his death, showing that the province of 
 the civil law is merely to regulate the course of descent. 
 We know, also, that in the eailiest records of human, no 
 less than of divine history, the right has not only been ac- 
 knowledged, but, in most nations, parents have been con- 
 sidered almost criminal who have neglected to amass pro- 
 perty for their children; and the earliest laws have inhibit- 
 ed their alienating property to the prejudice of those who 
 appear to have such strong claims. This was the law in 
 the forests of Germany no less than at Athens; and Plato 
 lays it down, that the possessions of a parent are held 
 merely in trust for his children; whilst by the Roman law 
 the child could be disinherited only for valid reasons, to 
 be sanctioned by a court of justice. 
 
 A sixth natural right is said to be that of making a will. 
 
 Those who deny the patrimonial right of children, of 
 course repudiate the idea of a parent having a natural right 
 
 * Grotius, De Jure Bel. et Pac. 6. 2. c. 1. sec. 5.
 
 Lect. III. 
 
 OF THE RIGHTS OF NATURE. 141 
 
 to make a will, and refer the testamentary power wholly to 
 the aid of the civil law. Grotius, however, is very clear 
 in considering it a natural right, and holds that civil laws 
 merely prescribe the formulae of the instruments by which 
 the testator's will is indicated, and sometimes interfere to 
 prohibit a prejudicial exercise of this natural right. Puf- 
 fendorf on the other hand, though he admits the natural 
 claim of heirs in case of intestacy, does not agree with Gro- 
 tius in referring the testamentary power to the natural law; 
 but his reasoning on the subject appears to us very unsatis- 
 factory. The weight of authority may be on the side 
 of Grotius; but his able commentator, Dr. Rutherforth, 
 has argued this point with his usual ingenuity, and has de- 
 cided against the natural right of disposing by will. The 
 course of his reasoning on this subject is substantially as 
 follows. He thinks that independently of the aid of the 
 municipal law, no one can transfer his property, either by 
 will or by intestate succession; for if the devisee be made 
 previously acquainted with the testator's kind intentions, 
 and accept of the bequest, such a transfer would not be 
 strictly by will; and if his acceptance were not during the 
 life of the testator, the transfer would come too late, the tes- 
 tator then ceasing to have any power over the property. 
 Consent to part with property, and acceptance by him to 
 whom it is to be conveyed, are essential to every transfer, 
 unless the laws of society see fit to sustain a transfer on 
 different principles. It is the nature of a will to operate 
 only after death; acceptance can come only at that time, 
 and positive law permits this in aid of the intention of the 
 testator, which would be otherwise defeated. The testator's 
 consent issufficiently manifested by the will itself; but where 
 the legatee's acceptance comes (as it must) after the death 
 of the testator, there would be an interval of time in which 
 the thing bequeathed would be without any owner, and 
 consequently it would revert to the common stock, to
 
 142 OF THE RIGHTS OF NATURE- [Lect. Ill 
 
 be awain the subject either of division or of occupancy. 
 Every one is supposed to have acquired property by occu- 
 pancy or by division. His property only extended to the 
 ri"-ht of enjoyment during life, and of alienation inter vi- 
 vos. So also, by the jus naturae, no one is competent to 
 transmit his estate to his heirs by right of succession ctb 
 inteslato, any more than he can transfer it to any one by 
 express will, because, in either case, as acceptance must 
 come after the death of the owner, the heir or legatee can 
 have no settled or fixed right at the very instant of the 
 owner's decease. If the acceptance or consent take place 
 during the owner's life, it can only be as to a present right, 
 to be enjoyed at a future period; and even in this light it 
 would not come up to the received notion either of succes- 
 sion ab intestato, or of taking by will. A will, moreo- 
 ver, is in its nature revocable till death, and can transfer 
 no inchoate right whatever before that event; so that if the 
 laws of society are wholly silent on the subject of succession 
 by right of inheritance, or of taking by will, the heir in 
 the one case, and the legatee in the other, have no more i ight 
 to the estate than any one else. It rests in the body of the 
 community, and there remains until it is again disposed of 
 either by occupancy or division. 
 
 The foregoing view of the subject is concurred in by Sir 
 William Blackstone,* who considers the jus disponendi, 
 whether by descent, devise, or otherwise, to be merely a 
 civil right, and that the law of nature suggests that, on the 
 death of any owner, the estate should become common, and 
 be again liable to the right of occupancy. This theory, 
 however, is not sustained, we think, by sound reasoning, 
 and it certainly has not the weight of authority in its fa- 
 vour. 
 
 But if the testamentary power be established as a natural 
 right, it is still doubted whether it extends so far as to ena- 
 
 * 2 Black. Com. 1.
 
 Lect. III. j OF THE RIGHTS OP NATURE. 143 
 
 ble a parent to bequeath his property wholly from his off- 
 spring. It would be difficult to come to any very clear de- 
 cision on this subject, since it depends on such a variety of 
 circumstances. The age of the child, its ability to pro- 
 vide for itself, its conduct to its parents, its character &c. 
 may all vary the decision; but on the whole it may be 
 stated, that a parent has no right by the law of nature to 
 disinherit his children, if they be left helpless, or a burden 
 on society or on friends; but if the child has been disobe- 
 dient, and be capable of gaining even a rude subsistence, 
 the parent may, consistently with the law of nature, wholly 
 disinherit him.* 
 
 We have now finished our notice of all the topicks in- 
 tended to be embraced in our examination of the Rights of 
 Nature. 
 
 In concluding the preceding lecture, we observed that, 
 after treating of the Rights of Nature, we should proceed 
 to inquire into the origin of Society, and the various rea- 
 sons which promoted and urged its institution; a topick 
 which has been necessarily treated, in part, in the very 
 consideration of the evils of a State of Nature, since those 
 evils are amongst the most powerful causes of civil associa- 
 tion. We shall, therefore, show you in the ensuing lec- 
 ture, the nature of primary society, as distinguished from 
 civil society, and explain the origin of civil government. 
 
 * The law of England has strangely departed from the jus naturce in this 
 respect; for it is understood to be the undoubted legal right of parents in 
 that country, to devise their entire estate to strangers, though their off- 
 spring should be left a charge upon the publick; and it is said that the 
 executors, who have property in hand, cannot be called on to relieve the 
 community from the burthen. On this subject Lord Alvanley, in the case 
 of Ruwlins v. Goldfrap, reported in 5 Vesey, 444, thus expresses himself: 
 f I am surprised that this should be the law of any country, but I am afraid 
 it is ihe law of England.'
 
 LECTURE IV. 
 
 OF THE ORIGIN OF PRIMARY SOCIETY, AND OF CIVIL GO- 
 VERNMENT. 
 
 (l.) Of Primary So- "We have stated in the preceding lee- 
 ciety, as distinguish- h ft and j ft ft certain 
 
 ed from political or ' r i 
 
 civil society. sense, the natural state of man, is that of 
 
 society. In that state his powers are best elicited; his 
 sympathies have their necessary objects and operations, 
 and convert the existence which was before brutish and 
 selfish, into an existence intellectual and generous. But 
 these advantages are not necessarily confined to civil so- 
 ciety: perhaps all the chief ends of man might be attained 
 without his ever entering into that peculiar species of as- 
 sociation, or departing from that state which, in contradis- 
 tinction to civil or political union, has been called by natu- 
 ral jurists, simple or primary society; and this certainly 
 would be the case, were man less prone to injustice, and 
 to the use of power without regard to right. 
 
 You will better understand this position, when you dis- 
 tinguish with a little accuracy between these two species 
 of society, and consider, in the first place, the definition of 
 a state, and of a citizen, and then the simple nature of that 
 primitive association of man which has been denominated 
 primary society, and which was certainly coeval with his 
 existence. 
 
 A state, then, is a combination of individuals for the 
 ends of political government: a citizen is a member of that.
 
 Lect. IV.] OF PRIMARY SOCIETY, &C. 145 
 
 state, considered in his capacity of making or obeying 
 laws. It is not in his capacity of parent, husband, master, 
 that we call a man a citizen; these are his private relations, 
 and we distinguish them by that term from his relations as 
 governor or governed, maker, minister or subject of laws; 
 in which last relations only is he properly called a citizen. 
 
 But man may well associate, and even establish many 
 important ties of union, without being formed into any 
 civil society. Such Grotius supposes was the state of the 
 early patriarchs, who dwelt in tents, and travelled from 
 place to place, without any political union whatever. So, 
 also, Gronovius is of opinion that the first inhabitants of 
 Italy, and some aboriginal tribes of Africa, were in this 
 state of simple union, or primary society, without laws or 
 government; and the Getulians, Cyrenaicans, and primi- 
 tive Libyans, are represented by Sallust, Pomponius 
 Mela, and other writers, as connected by no other ties 
 than those of parent and child, husband and wife; and as 
 scattered or wandering about the country, often in nume- 
 rous families of children, grand-children, and other rela- 
 tions by consanguinity or marriage. This comes precisely 
 up to the notion of primary society. 
 
 It is obvious, indeed, that men's motives for this simple 
 association may be very different in themselves, though 
 they look towards the same ends. The love of our moral 
 and natural pleasures would bring men together; and the 
 fear of their injury by some unworthier persons, would 
 in time induce their submission to political union and 
 laws: the first being done in pursuit of a good, the second 
 in avoidance of an evil. Men would be most happy to en- 
 joy these private relations without the interference of laws, 
 (whose partial operation is often exceedingly inconvenient, 
 and sometimes unjust to individuals,) if a greater mischief 
 were not avoided bv this smaller sacrifice. 
 
 19
 
 146 OF PRIMARY SOCIETY, [Lectin 
 
 It is probable that our intellect, our affections, and our 
 physical powers could be as effectually and happily exer- 
 cised without a political association as with it, if men 
 loved and did justice, and had capacity to apprehend the 
 necessity of yielding up individual gratification, in such a 
 degree as is called for by the general good. The father 
 could rear his child, and cherish its mother; the labourer 
 could till his field, and the scholar cultivate his mind, as 
 well without these complicated systems of restraint, as 
 they have done since their invention; and when we consi- 
 der how much natural liberty is abridged, and that men, 
 however much the sport of accident, or the slaves of cus- 
 tom, have in the main sought to promote their felicity by 
 their institutions, we shall be assured that they have not 
 made such sacrifices without the prospect, or, at least, the 
 hope of adequate compensation. Thus therefore, as we 
 have remarked, when it is said that society is essential to 
 man, we may be said to make two declarations in one, both 
 of which are true undoubtedly, but in a different sense. It 
 is impossible, we think, to conceive of men other than as 
 associated in groups, exercising their talents, and enjoying 
 the play of their s}'mpathies; in other words, it is impossi- 
 ble to think of mankind otherwise than in a state of at least 
 primary society; whereas it is more easy to conceive him 
 apart from his civick habits, practising virtue without law, 
 and doing justice from benevolence. The one situation, 
 in fine, that of primary society, essentially arises from our 
 organization; the other, that of civil society, appears wholly 
 adscititious, or the accident of our circumstances, and the 
 offspring of our vices, rather than of our virtues. 
 
 In considering this state of primary society a little 
 further, we shall find that there are three principal relations 
 which subsist in it, and which have been among the chief 
 topicks that have engaged the attention of those who have 
 treated of natural jurisprudence, viz. the relations of hu»~
 
 JLect. IY-1 AND CIVIL GOVERNMENT. 147 
 
 band and wife; of parent and child; and of master and 
 servant: to some consideration of each of which relations of 
 primary society, we now propose to draw your attention. 
 
 1. Of the relation of Husband and Wife. Since states 
 are composed of individuals, and educe their strength, 
 among other things, from the number of these; and since 
 families, considered with regard to the tie between their 
 members, are also a great support and bond of communi- 
 ties; we shall have occasion to consider marriage, or the re- 
 lation between husband and wife, in reference to these two 
 important ends; which ends, though they appertain more 
 strictly to civil than primary society, we shall briefly con- 
 sider at this time, in connexion with this latter association, 
 because they could not be examined under any other of 
 the heads we have proposed, and likewise because they 
 are, in truth, so intimately united with the other topicks 
 of this head, that they could not conveniently be disjoined. 
 
 To ensure the duration of a species so noble in its pow- 
 ers of intellect, and in its capacity of happiness, nature 
 has endued the two sexes with a physical inclination for 
 each other. But in order that this inclination shall be 
 controlled within such bounds as will ensure the propaga- 
 tion of the species, she has chastened it with a moral senti- 
 ment of love and esteem, very different from the emotion 
 to which we have alluded, and much more durable; and 
 also with a most tender affection for the mutual offspring. 
 This esteem, however, can neither be perpetuated without 
 constancy to each other, nor can the issue be so certain, or 
 so tenderly beloved, unless promiscuous intercourse be re- 
 strained. It is on these principles that matrimony has been 
 always regarded as essential to man's happiness; and is the 
 necessary offspring of association, or primitive societ} 7- , as it 
 is also the first care of civil and religious institutions. 
 
 It is not my intention to enter into all the considerations 
 which recommend marriage, or even into those more im-
 
 148 OF PRIMARY SOCIETY", [Lect. IV. 
 
 mediately connected with the topicks of the present lec- 
 ture. I would remark, however, that this is the most im- 
 portant relation of primary society; and that it must have 
 subsisted before civil associations and positive laws, because 
 it is a relation suggested by our nature, and the very first 
 circumstances under which man is placed after his maturity. 
 Hence Kutherforth defines marriage to be 'a contract be- 
 tween a man and a woman, in which, by their mutual con- 
 sent, each acquires a right in the person of the other, for 
 the purposes of their mutual happiness, and of the pro- 
 duction and education of children.'* This, it is evident 
 enough, may as well be made in primary, as in civil so- 
 ciety: the motives, the ends, the affections are the same in 
 both; and though positive laws may put restraints of va- 
 rious kinds on the making of the contract, or as to its ter- 
 mination, and enact many rules in regard to the conduct of 
 the parties, it is not the less a relation of mere primary so- 
 ciety. 
 
 The marriage contract is said to differ from all others in 
 this, that it is necessarily of perpetual obligation, and can- 
 not, like all other contracts, be dissolved by the mutual 
 consent of the parties by whom it Was made. This point 
 has been argued by the commentator on Grotius, with his 
 usual ingenuity, though perhaps with occasional sophistry. 
 The objects of marriage, and the obligations it imposes in 
 regard to the offspring, render it indissoluble by the mere 
 act of the parties. Nay, the consent of the offspring, 
 when of full age, added to the sanction of the community, 
 would not justify the parties in dissolving the contract. 
 Divorces, therefore, are against the law of nature. They 
 were indeed permitted by the Mosaic law; but the God of 
 Nature ordained this through the Jewish legislator, for 
 special reasons; and as the laws of nature are of his insti- 
 
 • I Ruth. 314.
 
 Lect. IV j A>D CIVIL GOVERNMENT. 149 
 
 tution, he alone was competent to allow the dissolution of a 
 contract, otherwise perpetual in its obligation. This view 
 of the subject appears to be confirmed by Christ, who, 
 when he repealed the Mosaic law on this subject, expressly 
 says, that though Moses (as the minister of God) allowed 
 the Israelites to put away their wives, yet 'from the be- 
 ginning it was not so.'* 
 
 But notwithstanding the perpetuity of this contract be 
 such, that although it originates in the consent of the parties, 
 it cannot be dissolved by their consent, yet there are circum- 
 stances recognized by the jus naturse to be of such a cha- 
 racter as to justify its dissolution; so that though the 
 maxim, applicable to all other contracts, that unumquod- 
 que dissohitur eo modo quo colligatur, does not apply to 
 the contract of marriage, yet it may be terminated short of 
 the death of one of the parties, by the circumstances to 
 which we have alluded. Thus, if one of the parties de- 
 prive the other of any essential and permanent right ap- 
 pertaining to the contract, that other, being the injured 
 party, may insist on its dissolution. The party doing the 
 injury, cannot dissolve it, for this would be acquiring a 
 right from his own injury, or breach of a perfect obliga- 
 tion, which is contrary to one of the clearest laws of na- 
 ture; but the injured party may insist on its termination, 
 because it is not in the power of the wrongdoer to place 
 matters in statu quo. Hence, for example, the law of 
 nature recognizes adultery as a valid cause for the dissolu- 
 tion of the marriage, when the innocent injured party in- 
 sists on it. The very definition of marriage shows that 
 adultery has deprived the injured party of a perfect and 
 essential right; but even this per se does not dissolve the 
 contract; it only clothes the injured party with the power 
 of dissolving it. It is perhaps on the same principle, 
 
 * Matthew, chap. xix. 8, 9.
 
 150 
 
 OF PRIMARY SOCIETY, [Lect. IV. 
 
 that the Canonists allow a divorce a vinculo matrimonii 
 for previous corporeal imbecility, though, in such cases, it is 
 rather on the ground that no marriage in fact existed, than 
 that one is '! ; «o!ved. So, also, it is to be remarked that 
 impotentia sen frigiditas renders the marriage voidable 
 only, and not void, for such a marriage is valid as to all 
 civil purposes, unless the decree of nullity take place in the 
 lifetime of the parties. It would be out of place, in this 
 institutionary part of our course, to dwell on the subject of 
 divorces; but we may state that the policy of most coun- 
 tries, in modern times, has been to allow of no other ground 
 for the actual dissolution of the contract, than adultery; and 
 even as to this, it has been the opinion of several learned 
 and philosophical writers, that it should be allowed only in 
 the case of the wife's infidelity, and this distinction appears 
 to be countenanced by scripture.* No power in England 
 is competent to grant a divorce a vinculo for adultery, but 
 parliament.! In regard to impotency prior to marriage, it 
 is regarded in several of the states of our union, as a valid 
 ground of dissolution:^ but a contrary doctrine has lately 
 been established in the state of New York.|| 
 
 From what has been said it is manifest, that neither by 
 the civil nor the natural law, can a marriage be dissolved 
 by consent; and that adultery is perhaps the only superve- 
 nient cause for annulling a marriage, under the natural law. 
 Supervenient frigidity has never been held in England suf- 
 ficient, and could only, if at all, be sufficient by the lex 
 naturse, under very special circumstances. Where the 
 spiritual or other courts grant a divorce a vinculo for 
 causes existing prior to the marriage, such as precontract, 
 
 * Taylor's Civil Law, 240. Pothier, Traxle du Contrat de Mariage No. 510- 
 Matthew, cha. six. 8, 9, 10. 
 t Blackstone's Coram. 441. 
 
 t 1 Hay's Connecticut Reports, 112, Benton v. Benton. 
 U 1 Hopkins' Chancery Reports, 557. Burtu v. Burtis.
 
 Lect. IV.] AND CIVIL GOVERNMENT. 15l 
 
 fraud, mental imbecility, consanguinity and affinity, it is 
 on the principle that no contract ever legally existed, and 
 therefore that none is actually dissolved by the decree of 
 divorce. A valid marriage contract, therefore, appears to 
 be of perpetual obligation, not only by the natural law, ex- 
 cept for adultery, but also by the civil law of most coun- 
 tries. When the Roman law, therefore, allowed voluntary 
 divorces, which were also introduced into France by the 
 code Napoleon, and were virtually the law of the Atheni- 
 ans, the jus natitrse was no doubt violated. This, however, 
 was the law of Rome from the time of the tables until 
 the full establishment of Catholicism, with the exception of 
 some restraints put upon its abuse by the emperor Augus- 
 tus, and its temporary abolition by Justinian. That this 
 divorce sine iilld querela was productive of much corrup- 
 tion, and of the most serious evils among the Romans, 
 there can be no doubt; and yet we find that in the novel of 
 the emperor Justin, which restored the ancient law of di- 
 vorce sine causd, it is gravely asserted in substance, that 
 Justinian's regulation had been productive of great evils 
 and crimes, and that the freedom of divorce hall become 
 essential!* By the laws of most civil societies, there is also 
 another species of divorce, called u, mensd et thoro: this, 
 however, is a mere legal separation of the parties from bed 
 and board, and is justified by the law of nature. It does 
 not dissolve the contract, and is granted only for such su- 
 pervenient causes as do not essentially affect the marriage 
 contract. The parties thus separated, cannot marry during 
 the life of either; and any issue born to the husband after 
 such legal separation, is legitimate. It is allowed only 
 where one or both of the parties have evinced such dispo- 
 sitions and habits as render it highly improper or dange- 
 rous for them to live together. 
 
 * Taylor's Civil Latr, 353. Digest. 24. S. 34. 157. Novel 140,
 
 152 
 
 OF PRIMARY SOCIETY, [Lect. IV. 
 
 The perpetuity of the marriage contract, considered 
 even in the light we have just stated it, has been questioned 
 by some, and Rutherforth has been thought to have pressed 
 the doctrine too far. We have sufficiently stated our rea- 
 sons for thinking otherwise. 
 
 The definition given of marriage, and the great ends 
 contemplated by that union, seem to confine its validity 
 and its utility to the alliance of one man with one woman. 
 Polygamy is generally inimical to the interests of indivi- 
 duals and of states, and this is demonstrated in nearly the 
 same manner as the perpetuity of the marriage contract. 
 There are circumstances, however, which render it less de- 
 plorable in some cases than in others. 
 
 Although polygamy is not, to our apprehension, defensi- 
 ble in any situation of nations, as a general custom, there 
 are some imaginable cases where individuals, apart from 
 the general effect, would be justifiable in having more than 
 one wife at the same time. Utility therefore, in this as in 
 other cases, must be the standard whereby to decide the 
 consistency of polygamy and monogamy with the law of 
 nature; and utility may incontrovertibly demand both. It 
 is unnecessary, and it would lead to too much detail, for us 
 to enter on the arguments generally used in support of this 
 position; for you will discover in all ages, and among all 
 people, the reception of this sentiment. We have consi- 
 dered marriage as a connexiun incident to primary society, 
 and not merely the creature of civil government, because 
 we find it to be essential to the existence of the most sim- 
 ple association of man, and enjoined by considerations 
 which are as prevalent before, as after the establishment of 
 civil union. For whether we consider it as enforced by 
 mutual affection; by the love of our offspring, and the ne- 
 cessity of nurturing and educating them; or by considera- 
 tions of quiet, and the tempering of appetites which often 
 grow fierce by indiscriminate indulgence; marriage is not
 
 Lect. IV«] AND CIVIL GOVERNMENT. 153 
 
 less necessary to men living out of the control of govern- 
 ment, than to those who are subjected to numerous laws, 
 and all the refined regulations of policed societies. • Mar- 
 riage is required by civil laws, not merely that the law 
 may have defined heirs among whom to distribute estates, 
 or on whom to bestow a throne or titles; nor merely be- 
 cause there are enough men born into the world, allowing 
 for the 'accidents of flood and field,' to afford a spouse for 
 each female; but because it is regarded as a dictate of the 
 law of nature, sanctioned by the civil law in such a degree 
 and manner only as comports with natural law; and hence 
 polygamy is generally regarded as adverse to its injunc- 
 tions, and has been no less generally proscribed by the 
 civil laws of enlightened nations, than by the natural law. 
 The deeper principles of love, which allows no division of 
 its empire; paternal and maternal affection, whose original 
 charm springs from the sympathetic attachment of parents; 
 temperance of appetite, which love teaches in the first in- 
 stance, and sober sense approves and confirms; all unite in 
 urging matrimony, and pointing out to men in all ages, 
 places and circumstances, monogamy, or at least single con- 
 cubinage, as in all respects most suited to promote our hap- 
 piness, and all the ends of the union of the sexes. Even 
 where polygamy and concubinage are received, the forcible 
 voice of nature selects some one as the more beloved ob- 
 ject; and policy distinguishes the legal wife from the pur- 
 chased slave. We find this the case among the Turks and 
 other Mahometans at this day; and it is true of those na- 
 tions which, in an earlier age, occupied the same climates, 
 and allowed the same indulgence. Even the Grand Seig- 
 nior has his Sultana, and Darius had his Statira; and as the 
 law in these countries requires a wife to give an heir to the 
 throne, love sometimes selects from the victims of tyran- 
 nical lust, some favourite who engrosses all its attentions. 
 
 20
 
 154 OF PRIMARY SOCIETY, [Leet. IV, 
 
 The limits to which we are necessarily restricted, forbid 
 us to discuss at large the various obligations imposed by 
 the natural law on man to contract marriage, for the pur- 
 pose of perpetuating his species, of rearing them in the 
 best possible manner, or of consolation and protection to 
 the other sex, whose tender nature requires his utmost care 
 and devotion. Nor can we here enter into the considera- 
 tion of many questions growing out of our subject, such, 
 particularly, as those which relate to the invalidity of mar- 
 riages between persons nearly related by consanguinity or 
 affinity; the prohibitions of the law of nature as to these 
 incestuous connexions; their nullity under the levitical, 
 the canon and the common law, and the laws of various 
 nations, ancient and modern; what marriages, (if any) are 
 valid under the lex naturse, though against Divine positive 
 law, and the received doctrines of sound policy and correct 
 morals; whether relationship by affinity and by consan- 
 guinity ought not to be distinguished in respect to in- 
 cestuous alliances; the true cause of the subjection of the 
 wife to the authority of the husband; whether consent 
 per se will constitute a valid marriage; in what respects 
 espousals differ from marriage; of the effect of fraud or 
 duress, idiocy or lunacy, or the want of proper age, on this 
 contract; of the effect of marriage where one is of compe- 
 tent age, and the other not; of the operation of a mere pro- 
 mise per verba cle futuro, by one of mature age, to one 
 who is not; of marriages formed in errour without fraud ; 
 and very many other questions, most of which appertain to 
 a different part of our course, and will occur to you in the 
 pursuit of your general and professional studies. You will 
 find, however, from sacred history, the source of much ex- 
 cellent knowledge, that marriage is coeval with the race, was 
 commanded by the Creator, and was respected as the most 
 solemn of all contracts; whilst general history will show 
 you that it has, in all enlightened countries, been based on
 
 Lect. IV.] AND CIVIL GOVERNMENT. 155 
 
 the principles from which we have argued its necessity and 
 excellence. 
 
 2. Parent and Child is the second relation which is 
 found in primary society; and this is a topick which will 
 not detain us long. 
 
 Casuists have not agreed as to the origin of the dominion 
 exercised by the parent over the child, and have sometimes 
 referred it to the mere act of generation; for, say they, as 
 God is entitled to our obedience because he created us, so 
 our parents, who begot us, hold a rightful dominion over 
 us, as they were the immediate agents in bringing us into 
 existence. Both parts of this proposition, however, are 
 perhaps equally false; for as it would seem that the obedi- 
 ence due to God, springs from our gratitude for the bles- 
 sings with which he has adorned life, and from the sway 
 which he possesses over our happiness, and not from the 
 mere act of creation; so the dominion of parents is more 
 justly derivable from its utility and necessity, and from the 
 obligation imposed by their tenderness and numerous ser- 
 vices, and by no means from the important agency they had 
 in our production, in which there can be no merit what- 
 ever, but positive unworthiness, if it be not succeeded by 
 those cares and offices in rearing the offspring, which can 
 alone fit them for the rational enjoyment of their existence. 
 On this subject, indeed, there ought to be no collision of 
 opinion. Paternal authority, there can be no doubt, is 
 founded on these two titles; first, the injunction imposed 
 on parents by nature, of rearing, and carefully watching 
 over the moral, religious and physical education of their 
 progeny, and the impracticability of advantageously dis- 
 charging that duty, unless children yield implicit obedience 
 to the dictates of parental concern, seeing that they are not 
 of sufficient age and discretion to limit the measure of their 
 submission or obedience. Every duty necessarily implies 
 the rights essential to its performance. The care of pa-
 
 156 OF PRIMARY SOCIETY, [Lect. IV. 
 
 rents were mostly thrown away, if they possessed not the 
 right of enforcing; compliance with the injunctions which 
 that care suggests. 
 
 The second title on which parental authority reposes, is 
 the presumed consent of the offspring. The parent shows 
 himself ready, by the care and affection manifested to his 
 child, to watch over him, and to supply all his wants, until 
 he shall be able to provide for them himself. The child, on 
 his part, receives these acts of kindness; a tacit compact 
 between them is thus formed; the child engages, by acts 
 equivalent to a positive undertaking, to submit to the care 
 and judgment of his parent so long as the parent, and the 
 manifest order of nature, shall coincide in requiring assis- 
 tance and advice on the one side, and acceptance of them, 
 and obedience and gratitude, on the other. 
 
 Puffendorf remarks, that this doctrine of implied consent 
 on the part of the child, has been objected to as sup- 
 posing a freedom of choice which cannot be supposed in the 
 case, until he has attained the age of choice. The objection 
 is specious; but in this, as in all other cases, reason, or the 
 law of nature, supposes a contract on the part of the child, 
 because it presumes a contract on the part of every indivi- 
 dual of mankind, to do that which is proper for the parti- 
 cular interest, and conducive to the general good; and in 
 this general principle of utility, (which, with Dr. Priestley, 
 we assume as the basis and measure of the natural law,) 
 may the first ground also of parental authority be included; 
 and thus are both titles, in fact, resolved into the obliga- 
 tion of parents, and the correlative duty of children, to do 
 nothing that shall impair the complete discharge of that 
 obligation which springs from the natural fitness of things, 
 or acknowledged utility. 
 
 If parental power arose not in truth from these princi- 
 ples, but from some fancied property given to the parent 
 in his offspring, by the act of propagation, it would seem
 
 Lect. IV.] AND CIVIL GOVERNMENT. 157 
 
 to follow, as a natural illation, that this authority would 
 appertain in the largest degree to the mother, since she not 
 only has the pains and deprivations incident to gestation 
 and parturition, but is the principal sharer in the cares 
 which succeed the birth. Yet it is the father who holds 
 and exercises the principal authority, except in the case of 
 promiscuous intercourse, where the issue necessarily be- 
 longs to the mother, as the father cannot with certainty be 
 known; or where, in the words of the maxim, t Partus se- 
 quitur ventrem.' 
 
 Such being the foundation of parental power, it remains 
 for us to inquire into its extent and limits. No very cer- 
 tain rule can be given on such a subject. Like the limits, 
 indeed, of all other government, its extent and boundaries 
 are prescribed by the good of the subject over whom the 
 authority is exercised, and are not to exceed what is neces- 
 sary for the due control and discipline of the child. This 
 power has been considered by various writers to be of 
 three kinds, according to the age or condition of the child. 
 These conditions are, first, Infancy; secondly, Majority, 
 the child still remaining under the parental roof; and, 
 thirdly, Majority and Separation, the child having ventured 
 into life, the pursuer of his own fortunes. 
 
 During the first period only, can the term, parental 
 power, be used with strict propriety, since at that period, 
 when the judgment of the child is naught or immature, the 
 constant and arbitrary direction of the parent is requisite 
 for his control and preservation. The authority of the 
 parent is strictly parental only at this period, because when 
 the child reaches the second stage, viz. that of full age and 
 mature judgment, but continues a member of his parent's 
 family, the authority exercised is rather that of a master of 
 a family, than of a parent; and the third period, viz. that 
 of separation from his home, le'aves no relation between 
 them, save that of veneration for age, deference, gratitude
 
 15S OF PRIMARY SOCIETY, [Lect IV. 
 
 and respect for parents, on the one hand, and a continuing 
 tenderness and affection for the offspring, on the other. 
 
 It is in the first period, therefore, that the principal ques- 
 tions arise regarding this species of authority; as, for ex- 
 ample, whether the original power over the child is vested 
 in its mother, and derived through her to others, or whe- 
 ther the paramount authority resides in the father; whether 
 parents may expose their children, or deprive them of life, 
 for gross deformity, great imbecility, their crimes, the 
 want of means for their support, or for any cause what- 
 ever; whether paternal power may be delegated, and, if 
 so, to what extent; whether parents may sell their chil- 
 dren, &c. all of which, and many like questions, have 
 been at various times, and in different nations, gravely ar- 
 gued, and affirmatively answered; and the rights claimed 
 under them, have been, and still are exercised by some 
 of them with great severity. 
 
 Paternal power, amongst most ancient nations, was abso- 
 lute, the child being esteemed the property and slave of 
 the parent. Life and death were at the discretion of the 
 parental master, and the unnatural right of infanticide was 
 not only recognized as legal, but so extensively practised, 
 that among the Greeks the goddess Infanticida was sup- 
 posed to preside over these atrocious outrages on humanity. 
 Even in the present age, it has been practised to such an 
 enormous extent in some of the eastern nations, that, if we 
 are to credit the calculation of Mr. Duncan, there were no 
 less than 30,0U0 infants sacrificed annually in the peninsula 
 of Guzerat, and the contiguous provinces of Kutch and 
 Sind. Owing to the laudable exertions of the East India 
 company, this cruel practice has been considerably dimin- 
 ished in India, particularly in Guzerat; though in Kutch 
 and Sind it still remains.* 
 
 * In a recent narrative of a journey through the upper provinces of 
 India, by the late Lord Bishop of Calcutta, the Rev. Mr. Heber, the learn-
 
 Lcct. IT.] AND CIVIL GOVERNMENT. 159 
 
 3. Master and Servant is the last relation of primary 
 society; in regard to which it seems necessary to distin- 
 guish between a servant and a slave, though Puffendorf and 
 others use these terms indiscriminately. 
 
 A servant is one who affords his labour in consideration 
 of hire, and whose servitude originates in his own consent. 
 A slave is one who is obliged to labour, and to submit his 
 actions to the will of the master, in consideration of the 
 supply of the bare necessaries of life, his state being gene- 
 rally indefinite in duration, and involuntary in its origin. 
 
 ed author speaks of female infanticide as still greatly practised in that 
 country. He ascribes the continuance of this cruel practice to the united 
 operation of pride, poverty, avarice, and a gross superstition. It is consi- 
 dered highly disgraceful in a noble family to have an unmarried daughter, 
 and still worse to marry her to one of inferior rank; whilst the poverty 
 of parents is often such as to prevent their suitably portioning their 
 daughters. Add to this, that it is a current belief among these people, 
 that the 'evil powers' are appeased by the sacrifice of a child. Most of the 
 females of a family disappear in a manner not exactly known. The popu- 
 lar notion of the strangers in the country is, that they are usually drowned 
 in a large vessel of milk, immediately after their birth: And others say 
 that they are destroyed by opium. In the island of Ceylon alone, the 
 census of 1821 showed an excess of 20,000 males over females; and in 
 some districts the proportion of the latter to the former does not exceed 
 one half. It is said that on the birth of a female, an astrologer is consult- 
 ed, and the child is inevitably sacrificed if it be pronounced to have been 
 born under evil auspices. 
 
 Mr. Heber thinks that, notwithstanding the great exertions of Major 
 Walker at Guzerat, the number saved is small, compared to that of the vic- 
 tims. He relates, however, that 'previously to Major Walker's departure 
 from Guzerat, he received the most affecting compliment which a good 
 man could receive, in being welcomed at the gate of the palace, on some 
 publick occasion, by a procession of girls of high rank, who owed their 
 lives to him, and who came to kiss his clothes, and throw wreaths of flow- 
 ers over him as their deliverer and second father. Since that time, how- 
 ever, things have gone on very much in the old train, and the answers 
 made by the chiefs to any remonstrances of the British officers is, l Pay 
 our daughters' marriage portions, and they shall live!'' Yet these very men, 
 rather than strike a cow, would submit to the cruellest martyrdom. — 2 He- 
 fcer's Aarr. 69. 192.
 
 160 OF PRIMARY SOCIETY, [Lect. IV. 
 
 The state of mere servitude is therefore easily ac- 
 counted for in primary society, and might have its rise in 
 any the most primitive state of man, as well as in commu- 
 nities of regular government and laws; since it might 
 arise under any circumstances which rendered difficult the 
 obtainment of a livelihood, there being nothing strange in 
 a man's giving his labour to another, in consideration of 
 some desired equivalent. 
 
 But slavery must arise from different circumstances, 
 perhaps was wholly unknown to primary society, and is 
 more difficultly reconciled to the law of nature if indeed 
 it be at all reconcileable to it. This, among casuistical ju- 
 rists, has always been a topick of considerable difficulty. 
 We cannot, for instance, impute slavery to the legitimate 
 exercise of superior minds over those which are confes- 
 sedly inferior, since every man is essentially free to direct 
 his own actions, however incompetent he maybe to it, un- 
 less he be an infant, an idiot, or a lunatic. Nor can we 
 resort to the notion of Mr. Hobbes, that the natural state 
 of man being that of warfare, any one has a right to in- 
 vade another, and reduce him to slavery by the right of 
 conquest. So, also, the position of Puffendorf and others, 
 that, as an enemy in a war just on one side, may fairly be 
 killed, so the victor may make his bargain with him, giving 
 him life on condition of perpetual servitude or slavery, 
 seems extremely questionable. It must be allowed that 
 there are innumerable wars where the vanquished are not 
 so much in fault as to merit a punishment so severe and 
 lasting. But the right to reduce to slavery is said to be 
 founded on the right to destroy life in a just war. No such 
 right exists, we apprehend, except dum fervet opus, 
 whilst the battle rages, or in very special cases. If such 
 cases exist, it would be very questionable whether those 
 could be so considered, where the victors could with pro- 
 priety commute the punishment from death to slavery; for 
 
 J
 
 Lect. IV.] OF CIVIL GOVERNMENT. 161 
 
 this very right of depriving the vanquished of life, would 
 seem to occlude those facts and circumstances which would 
 render it proper to grant them life on any terms. Per- 
 haps the only case in which slavery would be justifiable, is 
 one which in fact can hardly be supposed to occur in pri- 
 mary society, or indeed in any relation of man: it is 
 where a body of men have shown dispositions so hostile to 
 others, that it is requisite to the safety of the last, that the first 
 shall be separated and restrained. Now such a case can scarce 
 be supposed before the institution of civil government; for 
 in primary society there could hardly be a body of ill dis- 
 posed individuals so numerous as to require such disper- 
 sion, nor such an association of injured persons as could 
 serve the purpose of dividing them, and thus coercing 
 their good behaviour. And where the societies are politi- 
 cal, other means could perhaps be in all cases resorted to. 
 The right of slavery, if it exist at all, must, we suppose, 
 be founded on the necessity for security or for punishment, 
 or for both. Now, if individuals, or large families, (for 
 we cannot suppose any other injured entities in primary 
 society) were to detain persons in slavery, it is difficult to 
 imagine how the mere end of security could be reached, 
 such security being generally the result of the superiority 
 of the victors in number and power. If we proceed on the 
 principle of punishment, this will hardly excuse an unli- 
 mited enslavement, as punishment is to answer the ends of 
 correction to the individuals, and example to others, and is 
 necessarily limited in its nature, because it is supposed to 
 be proportioned to the injury or crime. In short, the prin- 
 ciples both of security and punishment are limited, because 
 they should be adjusted to the case, and cannot justify 
 what is admitted to be perpetual in duration, and with no 
 other bound but the will of the master. But the case 
 which is generally supposed to be the foundation of sla- 
 very, is compounded of these principles, and also of a sub- 
 21
 
 162 OT PRIMARY SOCIETT, [Lect. IV 
 
 sequent necessity which their exercise is supposed to in- 
 duce. Thus, a community being harrassed perpetually by 
 another of essential^ predatory or restless habits, sees no 
 other security than subduing them, dividing them among 
 themselves, and exercising a scrutiny, and a discretionary 
 power over them. Afterwards, they know not how to get 
 rid of them, for they can neither release them, send them 
 abroad, nor admit them to equal privileges at home; a situ- 
 ation necessarily productive of hostility on the part of the 
 slave, and of augmented severity on the part of the master- 
 But, to say nothing of the many innocent persons involved 
 in an indiscriminate punishment of this sort, it is obvious 
 enough that there are various other preferable methods of 
 security; such as giving them in the first instance, or after a 
 time, a limited privilege of citizenship; dividing them into 
 very small communities remote from each other, yet retain- 
 ing their liberty; and many others, short of either of the 
 plans mentioned, but which would answer the end pn>- 
 posed. The above remarks are founded on the supposi- 
 tion that it is a body of persons that are thus reduced to 
 slavery, by another body of persons. Let us now see how 
 the case stands between individuals. I am. let us suppose, 
 an individual in a state of nature, and have accumulated by 
 labour or skill, some quantity of the necessaries of life. 
 An unjust man assaults my life, and carries off the fruits of 
 my toil and skill; I pursue and capture him; and as re- 
 venge is not less forbidden by the law of nature, than by 
 the revealed law of God, I detain him for the two purposes 
 of punishment and reparation. The punishment must be 
 proportioned to the correction to be made, and the exam- 
 ple to be enforced; and the reparation must be made to the 
 amount of the property taken from me, and the actual dam- 
 age which I have sustained. I have therefore a right to 
 restrain the liberty of this individual so far as may be ne- 
 cessary for the purposes of punishment; and. also, to direct
 
 Lect. IV.] AND CIVIL GOVERNMENT. 163 
 
 his labour to my use until I am fully compensated. This, 
 and this only, is the measure of the right of war and con- 
 quest; a measure which, it is obvious, is far from reaching 
 to the extent of rightfully enslaving the captive, that is, of 
 giving to the conqueror an unlimited dominion over his 
 person, his actions, and his property, however it might 
 sometimes happen that the offender's whole life might be 
 insufficient to atone for the injury, or repair the damage. 
 Let us now, in a few words, consider the situation of the 
 offspring of an enslaved enemy. These, it is conceded, are 
 not participators in the offence of their parents, and there- 
 fore the same reasoning is altogether inapplicable to them. 
 How, then, is the retention of these in perpetual bondage 
 to be defended? Can it be said that there is a contract on 
 the part of the infant slave, with the master, as of the child 
 with his parent, to remunerate him for his care and expense 
 in rearing him? We think not: for between parent and 
 child there is no actual consent; it is merely presumed from 
 the heavy debt of gratitude, tenderness and affection due 
 by the child; and also from the moral fitness of things, 
 which demands obedience in order to enable the parent to 
 discharge his duty. But such an implication cannot well 
 be presumed in the case of the infant slave; for he has re- 
 ceived no such tenderness, careful nurture, or expensive 
 support; and if all this, and much more, had been practised 
 towards him, the obligation would not be that of slavery 
 for life. Still, however, two considerations have been 
 urged regarding this point; first, that the claim for remu- 
 neration, which I have mentioned to be one of the ends of 
 slavery, might survive the parent, though the right of pun- 
 ishment would not; and secondly, that as the only induce- 
 ment of the master to preserve the life of the infant slave, 
 whose parents can subserve no interest save their master's, 
 is the hope of eventual profit from his labour, the law of 
 nature may be sn^nosed to raise a duty on the side of the
 
 |64 °F PRIMARY SOCIETY. [Lect. IV. 
 
 slave, to repay by his services the preservation of a life 
 which would otherwise have been disregarded; and this 
 might be called the policy of the law of nature. The 
 whole of this reasoning appears to me entirely fallacious. 
 The claim to reparation may, indeed, survive; but only so 
 far as to give the master a claim to any property the slave 
 may possibly have accumulated, and, even then, only so 
 far as the original debt may have remained unsatisfied; but 
 this surviving claim cannot per se be a personal charge on 
 his offspring. As to the supposed inducement of the mas- 
 ter to preserve the life of the infant slave, and the ima- 
 gined policy of the natural law, nothing, it appears to me, 
 can be more sophistical and erroneous. It is founded on 
 an assumption that the master can rightfully be regardless 
 of the lives of such persons, (whose parent he certainly 
 must have taken cum onere;) and also on the supposition 
 that he has such an exclusive right to the enslaved parent's 
 labour, that such parent is not entitled to have, and to rear 
 children; and, further, that the law of nature, like human 
 laws, can compromise for wrong on principles of policy: all 
 of which positions, we apprehend, are erroneous, and have 
 been so considered in the preceding lecture, when we had 
 occasion to speak of the unalienable nature of some of our 
 rights. 
 
 We have now briefly examined the three great relations 
 of primary society, or that primitive association which 
 would be essential to the happiness of man, how much soe- 
 ver his desire to do justice might render civil government 
 and laws unnecessary. 
 
 We now proceed to the remaining topicks of the pre- 
 sent lecture.
 
 Met. IV.] AND CIVIL GOVERNMENT. 165 
 
 (2) Of the Motives After the establishment of primary 
 which induced men soc i ety the transition to that of political 
 
 to establish civil so- l 
 
 ciety and govern- government and laws has been variously 
 
 ment " accounted for; and different writers, an- 
 
 cient and modern, have supported their respective theories 
 with zeal, and often with great ingenuity. Before we exa- 
 mine these theories, we would remark first, that it has 
 been at all times a fruitful source of errour, that theorists 
 are so prone to build their system on some single or ele- 
 mentary principle, instead of taking an extended view of 
 their subject, and seeking for its solution in the operation 
 of a multiplicity of causes. This desire to refer an effect, 
 originating in complex causes, to a simple principle, ap- 
 pears almost innate; for it will be found, on examining va- 
 rious theories in physicks, and morals, that scarcely any of 
 their authors have been content to rear their system on the 
 resulting effect of concurring causes, but have imagined 
 that their argument loses the character of theory, and the 
 charm of novelty, if they solve their problem by reference 
 to all the circumstances which may possibly combine to 
 produce a single result. This notion of simplifying the 
 composite machinery of nature, and of attributing to one 
 cause, what may have arisen from an infinite number, of 
 minute operation, has, no doubt, been the source and per- 
 petuation of most of the visionary systems which have 
 been the reproach of learning and philosophy in all ages. 
 We know that the human mind is composed of faculties 
 extremely implex and delicate in their operations, but in 
 which the most wonderful and undeviating harmony is pre- 
 served. All -its parts have a dependence on each other 
 strictly reciprocal; and no spring of this admirable piece of 
 mechanism can be set in motion, without in some degree 
 exercising all the others, however minute and insignificant 
 they may appear to be in the great whole. An attempt, 
 therefore, to refer most of the operations of the human
 
 166 OF PRIMARY SOCIETY, [Lect IV. 
 
 mind and heart to a single source, or to derive from one 
 spring of action, effects depending on a complication of 
 causes, is highly irrational, and has generally proceeded 
 from an overweening zeal in support of some favourite 
 theory. The second remark which we have to make, be- 
 fore we inquire into the opinions advanced as to the origin 
 of civil governments, is that the foundation which we adopt 
 as the main guide in ascertaining the law of nature, is utility: 
 in other words, the mischief that would result fro:n the 
 disobedience of its dictates, is the sanction of the law of 
 nature. It must, however, be quite evident to all, that this 
 general utility is neither always discernible to men without 
 government and laws, nor is always correctly argued from 
 by casuists themselves, nor alterable as circumstances and 
 necessities vary. There is generally this difficulty in de- 
 termining the justice of an act, under the natural law, viz. 
 that what men were designed to be, and what they invaria- 
 bly are, seem to require two distinct measures of action; a 
 difference to which the most virtuous casuist cannot be en- 
 tirely insensible. Thus, for example, the retention of the 
 offspring of a slave, we have just seen, has been attempted 
 to be justified on a supposed policy of the law of nature, in 
 order to avoid a greater evil. This would certainly present 
 a dilemma, about which the virtuous and considerate might 
 innocently differ. "We think, however, the case is free of 
 difficulty, and that no such policy exists. It is conceded 
 that no right can be founded in an injury; and such an ac- 
 quiescence of the law of nature would be an indirect sanc- 
 tion of that which in itself is clearly a violation of justice. 
 Others, however, are equally confident that such a policy 
 must be consistent witli the lex nalurse, because so great 
 an evil might unavoidably arise from denying to the master 
 any interest in the infant slave. Variety of opinion often 
 preponderates on the side of errour, and truth is sometimes 
 obscured, for a time, by the voice of even general opinion
 
 Lect. IV.] AND CIVIL GOVERNMENT. 167 
 
 against her, and this too in matters even of feeling, consci- 
 ence, and ohvious reason. But it is full time that we now 
 proceed to direct your attention to various opinions assigned 
 by authors as to the origin of civil or political government, 
 and laws. This, together with the obligation to it, it will 
 presently be seen, we refer in a great degree to the utility 
 we have just spoken of, and which we shall have occasion 
 fully to explain hereafter. 
 
 1. Divine Command. Some have contended that the 
 first institution of civil society and government, was in 
 compliance with a divine command. They suppose that 
 Adam was invested by Deity with supreme political au- 
 thority over all his progeny, and that the right of govern- 
 ment descended as an inheritance in the elder lines of the 
 several branches of his family. That this is a hypothesis 
 wholly destitute of historical support, is very evident, as 
 we can refer to no other source than the Bible, and no such 
 doctrine is there to be found. Independently, however, 
 of the absence of historical evidence on this point, we can 
 see no occasion to have recourse to this intervention of di- 
 vine command, since there is clearly a sufficient obligation 
 urging the establishment of such societies, arising from the 
 numerous benefits which flow from them, and the avoi- 
 dance of many evils which obtain without them; nor is it 
 ever philosophical to impute any effect to divine agency, 
 which can be otherwise satisfactorily accounted for. 
 
 2. The Social Principle. A second theory supposes 
 men originally solitary animals, wandering in the woods 
 and fields in search of food, and, like the beasts of the fo- 
 rests, occasionally meeting in their excursions. Finding 
 from this casual intercourse, that they could be reciprocally 
 advantageous to each other, and nature having, in fact, im- 
 planted in them certain social affections, they thus formed 
 those simple associations, which, in process of time, be- 
 came subjected to a few plain regulations, chiefly in refer--
 
 163 OP PRIMARY SOCIETY, [Lcct. IV. 
 
 ence, perhaps, to hunting, the division of their spoil, the 
 sanctity of their humble habitations, and such like; and 
 finally matured into regular governments or nations. 
 
 3. Sense of Impotenct. Another hypothesis on this 
 subject, assumes that men are the most helpless of all ani- 
 mals; that it was not the social principle which first induced 
 them to come together, but a sense of impotency, a know- 
 ledge of their total inability to sustain themselves sepa- 
 rately against the inclemencies of the seasons, the ferocity 
 of animals, the inroads of hunger &c; and that laws, and 
 political government were coeval with the first associations 
 of man; or, in other words, that a state of primary society 
 perhaps never existed, but that the earliest associations 
 were political, though they may have been extremely sim- 
 ple, and scarcely distinguishable from primary society, in 
 the sense in which we have described it. 
 
 4 Natural Hostility. The theory of greatest note, 
 is that of the celebrated Ilobbes, which makes the original 
 principle of all societies to be fear, and a natural hostility 
 of man against his species. This doctrine supposes that 
 some men united for defence, and others for aggression; 
 that as mankind are naturally enemies to each other, they 
 soon found that their schemes of opposition and plunder 
 were better promoted by a union of action; and that this 
 being the case, those who were attacked would in turn 
 unite for their defence. If Mr Hobbes's notion be cor- 
 rect, it is not very material to inquire whether the first 
 communities were aggressive or defensive. We cannot, 
 however, agree with a late sensible writer on Political 
 Economy, Mr Raymond, that the first associations must 
 necessarily have been for the purposes of aggression. He 
 appears to have adopted this idea of natural hostility to its 
 utmost extent. 'It is very clear,' says he, 'that aggression 
 must precede defence, and that before communities could 
 have been formed for defence, there must have been others
 
 Lect. IV] AND CIVIL GOVERNMENT. 169 
 
 formed for aggression. Had there been no such thing as 
 attack, men would never have thought of defence. The 
 primary object, therefore, in forming the social compact; 
 must have been plunder, and the first article of that com- 
 pact no doubt was, 'we will plunder our neighbours.' The 
 second article probably was, 'we will not plunder each 
 other:' this article was necessary to enable them to carry 
 the first into effect. Other articles were afterwards added, 
 as the occasions and necessities of the society required, 
 until the social compact has increased to ils present form 
 and dimensions.'* This view of the subject by our coun- 
 tryman, is perhaps an extension of the theory of Mr 
 Hobbes beyond the limits designed by that learned but 
 misguided philosopher. He, indeed, considered men in- 
 clined to rob and oppress each other; but it is not a legiti- 
 mate inference from his theory, that political associations 
 were first formed for the express object of aggression and 
 plunder: for the evil dispositions of men may reasonably 
 be supposed to have induced the better disposed among 
 them to unite for the purposes of defence, or even to regu- 
 late their own evil habits and propensities, after their expe- 
 rience had taught them that there was no safety nor tran- 
 quillity, if the uncontrolled indulgence of predatory war- 
 fare were not checked. But be this as it may, there are few, 
 if any, in this enlightened day, who will concur with Mr 
 Raymond in a doctrine which places our species in an as- 
 pect still more hideous than that in which we find it in 
 the description of Mr Hobbes. We do not perceive the 
 necessity of supposing that the first political communities 
 were formed for plunder. It is true, no doubt, that defence 
 must be preceded by aggression, and that no defensive com- 
 munities could have been formed unless there had been 
 previous aggression; but there is no need that this should 
 
 * Raymond's Political Economy, vol. 1.19- 
 22
 
 170 OF PRIMARY SOCIETY, [Lcct. IT 
 
 be of communities, and they, too, formed expressly for as- 
 saults. May not individuals or families have manifested 
 those evil and aggressive dispositions which would give 
 rise to communities for defence; and if so, may not the 
 first civil associations have been formed merely for defence 
 against such individuals and families? The whole ques- 
 tion is, whether defence or aggression was the cause of 
 civil union; and to infer the latter merely from the princi- 
 ple, that aggression must precede defence, is a manifest so- 
 phism, by departure from the point, in controversy: it is 
 what logicians calls ignoralio eluchi, since if the postu- 
 late be admitted, as it must be, that aggression precedes 
 defence, still it goes no way to justify the conclusion that 
 the aggression was that of a community, as it ma) 7 have 
 preceded from individuals, whilst those who were injured* 
 may have associated for defence, and thus originated the 
 first civil communities. 
 
 The truth, no doubt, is, as is generally the case in such 
 controversies, that these societies were formed neither for 
 the one nor the other purpose solely. Men may have 
 united from a great variety of causes, such as relationship, 
 social propensities, the advantage of union in labour &c. 
 and even if men are natural enemies to each other, they 
 are also, as we know, reasoning beings, and may therefore 
 have easily arrived at. the conclusion, that an association of 
 numbers of their own species, under certain simple regula- 
 tions, might be productive of much advantage. The theo- 
 ry of natural enmity is, indeed, a shocking and disgusting 
 view of the character of that being which, on earth, is the 
 only one endued with reason, and capable of society. Wo 
 had hoped the day was past, when any of the cold and sul- 
 len sophistry, or the wild and incomprehensible figmeuts 
 of Mr Hobbes, could have found an advocate. 
 
 5. The Urgency cf our Wants. A fifth theory has 
 accounted fcr the origin of societies wholly from the se-
 
 L*ct. IV.] AND CIVIL GOVERNMENT. 171 
 
 verity of our wants in primary society, as well as in a 
 state of nature. A thousand urgent calls, which men or 
 families unallied, however much they toiled, could not 
 have provided for, must have linked them together; and 
 a thousand pleasures to which we are naturally addicted, 
 would have subsequently cemented the society thus formed. 
 That these considerations would have united men, and 
 given rise to political regulations, cannot be doubted; and 
 if the state of nature ever existed, its miseries must have 
 urged men to society and law, unless mankind had been 
 separated by a repulsive principle of which we can per- 
 ceive no traces in the present nature of our species. * 
 
 6. Sexual Passion. The merit of originating society 
 and government has also been ascribed to the attachment 
 of the sexes. The mode in which this proclivity of our 
 nature operated in producing this effect, must have been, 
 we presume, somewhat after the following manner. The 
 sexes were first brought together by the influence of sex- 
 ual passion, allowing that to have been the sole attraction 
 to union: marriages, with all their consequences, would en- 
 sue: the numerous ties of relationship would bring num- 
 bers together, and extend the dominion of family affection 
 and influence: the social principle would be set in opera- 
 tion, and give rise to friendships among many, beyond the 
 limits of blood and affinity: all these would unite for every 
 purpose of common interest: these objects of union would 
 require rules for their regulation; and as they increased in 
 importance, more permanent confederacies would be esta- 
 blished, and thus give rise to regular governments and 
 laws. 
 
 7. The Love of Knowledge. This has likewise been 
 regarded by some as the foundation of civil union. Its ad- 
 
 * This view of the subject differs, if at al!, but little from the third one, 
 which refers the origin of society to a sens3 of impotency.
 
 172 OF PRIMARV SOCIETY, [Lect. IV 
 
 vocates have not been very explicit in stating the modus 
 operandi by which man's thirst for knowledge terminates 
 in such an important result. We may suppose it to have 
 been thus. Man, as we know, is a being endowed with 
 observation and reason: these beget curiosity, or a desire 
 for knowledge. Man awakens the curiosity of man, and 
 would be as likely to be observed and studied by man, as 
 any other object in nature, and even more so, as the simi- 
 larity of his ostensible nature and pursuits would excite 
 a livelier interest. This desire for some knowledge of our 
 species, would bring men together: friendships, marriages, 
 common enterprises, and, in fine, primary societies, would, ti 
 soon be formed: knowledge on various subjects would be 
 desired: the general mind would expand: the objects of 
 curiosity and research would greatly multiply: these could 
 not be advantageously pursued without union of action, and 
 the adoption of some rules: these rules would multiply, 
 until their enforcement and exposition would demand a 
 common force, and a common tribunal. Some distinguish- 
 ed expositor of these rules would gain an ascendency: his 
 worth and talents would gain him authority: he becomes a 
 governor, and perhaps, finally, a king. 
 
 8. Patriarchal, Government. The last theory we 
 are aware of is, that nations arose from patriarchal govern- 
 ment. This supposition appears to us the most probable, 
 and is the best sustained by the early history of our species. 
 Patriarchal government consisted in the fathers of families, 
 and their first born after them, exercising civil, ecclesiasti- 
 cal and economical authority in their respective house- 
 holds. The simplicity of primary society in all countries, 
 and in all ages, would require no other power than that of a 
 father of a family over those under ihe same roof: but the 
 patriarchal government to which we allude, is that which 
 obtained among the Jews from their earliest history, until 
 their settlement in Egypt. During their residence in the
 
 Lect. IV.] AND CIVIL GOVERNMENT. 173 
 
 land of Canaan, they had no form of civil or political go- / 
 vernment. The fathers of families exercised sovereign 
 power over their children, who were disinherited by them, 
 or punished with death, or dismissed from their homes, or 
 blessed or cursed, as the parent should determine, without 
 any interference by any foreign power whatever. These 
 patriarchs even concluded solemn treaties with the petty 
 kings who had dominion in various parts of Palestine, and 
 vveie considered their equals in dignity and power. On the 
 death of a parent, his eldest son succeeded to the parental 
 or patriarchal authority, and this being sacerdotal as well 
 as secular, embraced every power which their necessities 
 demanded.* 
 
 The process by which this species of government would 
 mature into political power, may easily be conceived, and 
 needs no explanation. A knowledge of the nature and be- 
 nefits of civil union being once known to the first progeni- 
 tors of our race, history or tradition would seldom, if ever, 
 suffer it to be entirely lost, and thus it is that all the na- 
 tions of the earth are indebted for their exemplar of civil 
 society, to those primitive political associations which 
 spring from the patriarchal dynasties of which we have 
 spoken. The student, if desirous to investigate the nature 
 and extent of patriarchal authority, may consult the au- 
 thorities in the margin.! 
 
 We have now concluded our remarks on the various the- 
 ories advanced to account for the origin of society and go- 
 vernment. We have dwelt longer on the subject than was 
 perhaps necessary, as many of them are the fancies of spe- 
 culation, but still, when taken together, give us a tolerably 
 correct view of the actual origin and progress of nations. 
 
 * Gen xiii. 6. 12; xiv. 13. 18. 24; xxxi. 44. 54; xlix. 3. 4. ct passim. 
 
 t Jennings 1 Jewish Antiquities, 1 vol. 100. Harrington's Works, 241. 331. 
 332. Sydney on Government, chap. 1, sec. 7. Pufiendorf, book 1, ch. 3, 
 sec. 6. Home's Introduction, vol. 3, part 2, chap. 1.
 
 174 OF PRIMARY SOCIETY, [Lect. IT. 
 
 They also show us how unphilosophical it is to impute the 
 origin of these institutions to the operation of any single 
 principle, and that probably nearly all of them concurred 
 in their production. 
 
 Let us now briefly advert to some of the benefits con- 
 ferred on man by submission to positive laws, and the va- 
 rious institutions of civil society. 
 
 1. We have had occasion to speak of the uncertainty of 
 the law of nature, or rather the difficulty of knowing its 
 prescriptions under particular circumstances; for though 
 this law be not dumb, it is sometimes not easy to under- 
 stand its injunctions. Be men's inclination to do justly 
 what it may, they often want time and talent to come to 
 correct conclusions regarding what is just; nay, in many 
 cases, there wants rather a consent to take one of two paths 
 which are indifferently right, than judgment to decide 
 which is best. Innumerable cases occur in the most sim- 
 ple relations of life, in which, for example, the hunter, the 
 aitificcr, the labourer cannot stay to form a deliberate judg- 
 ment: in such cases, it is in the law of nature, as in the 
 municipal law, less important what the law is, than that it 
 should be fixed. Now civil society is intended to remedy 
 this difficulty: men submit themselves to some common 
 head, or select the most able minds from the mass, to con- 
 sider what rules will be best promotive of general good, 
 under the particular circumstances in which the community 
 may find itself; and hence originates the legislative pow- 
 er of government. 
 
 2. A not less essential circumstance than the directing 
 of men's minds by the common understanding, is the sub- 
 jugation of their wills by the common force. As the for- 
 mer is creative of the legislative power of a community, 
 so is the latter of the executive. Though the tenden- 
 cy may be to good in the main, there are, we know, 
 sufficient restless spirits to be found, who disturb the con-
 
 Lfect. IV.] AND CIVIL GOVERNMENT. 175 
 
 cord of the many, and therefore require the union of the 
 majority for their speedy and certain correction. Nor is 
 it necessary, as has been shown, that we should resort to a 
 prevalent evil principle in man, since, as Puffendorf well 
 remarks, 'if out of the whole multitude of mankind, each 
 man had but a single foe, this were enough to fill the whole 
 world with hatred and dissention.' A competent force, 
 therefore, being provided for the execution of the laws of 
 policed societies, renders legislation efficient, and compels 
 the observance of laws, where virtue and good morals arc 
 not sufficient to maintain their supremacy. 
 
 3. Although we have diffeted from those jurists who 
 maintain that man resorts to civil society immediately from 
 the social principle, yet it is evident that mediately this 
 principle is an essential, and perhaps a primary cause of 
 simple association, and may, with others, have tended 
 largely to the production of laws and regular governments. 
 Men, doubtless, might indulge their love of society in a 
 good degree, might trade and contract together, and enter 
 into many other relations, in mere primary society; but 
 as the social affections expand, as the ties of relationship 
 increase, as numbers multiply, there arises more and more 
 necessity for some clear arrangement of the rules of order, 
 a fixed source for their emanation, and some strong and 
 prevailing power to control the heedless and the base, and 
 finally, to see that all the rules prescribed shall be obeyed. 
 It is thus that the social principle may become strongly 
 though mediately operative in the production of political 
 societies or nations. 
 
 4. The foregoing principles enable us to explain why all- 
 mankind are not one civil society; but are found parcelled 
 out into numerous political states, larger or smaller ac- 
 cording to choice or circumstances. As all these associa- 
 tions have principally in view the constitution of a com- 
 mon understanding for legislative purposes, the society
 
 176 OF PRIMARY SOCIETY, [Lect. it 
 
 must not be so large as to render this difficult, either as to 
 the collection of the common will, or its communication 
 to the common force which is to have in charge the exe- 
 cution of that will. We need not advert to the various ac- 
 cidents which have, in fact, produced civil societies, as we 
 gee them exist every day. These topicks will be more 
 properly remarked on, when we cornc to speak of the va- 
 rious forms of civil government, and the principles on 
 Which they are based. 
 
 5. It has not been our design to enumerate with exact- 
 ness, or to discuss with precision, the numerous advanta- 
 ges and motives of the adoption of regular governments; 
 the perception of which a priori by mankind, may be 
 supposed to have influenced the transition from a state of 
 nature to that of primary society, and then to that of po- 
 litical. These inquiiies lead to useful results, though, in 
 point of fact, such progressive changes may never have taken 
 place. In conclusion, we may mention another great ad- 
 vantage derived from civil societ}', which is. that men ob- 
 tain thereby the full benefit of exclusively exercising those 
 peculiar talents with which nature has endowed them. In 
 primary society, every father of a family must he supposed 
 to act, in some degree, the part of a legislator; he must 
 establish some rules of duty, attach some penalties to the 
 neglect of them, and therefore must either learn to think 
 on matters infinitely various, and often much beyond his 
 comprehension, or must be content to observe and borrow 
 such as he finds most beneficial in the families of his neigh- 
 bours. Civil society, on the other hand, leaves every one 
 at liberty to mind his particular or favourite occupation; 
 while on exalted genius and knowledge is devolved the 
 task of planning the government and laws, and, in turn, this 
 genius and learning are discharged from all humbler callings. 
 Enough, however, has been stated to show the powerful 
 obligation imposed on man to cultivate political society.
 
 Lect. IV.] AND CIVIL GOVERNMENT. 177 
 
 It is the most efficient guard of his felicity, and the 
 surest promoter of all the ends of his heing. Under this 
 view, and to this extent only, is it that government is re- 
 ferrible to a divine command, and thus may we, also, un- 
 derstand Aristotle, when he denominates man a Political 
 Animal; for he, doubtless, is a political being, whose hap- 
 piness cannot be secured, whose acquisitions cannot be 
 guarded, whose faculties cannot be expanded, and whose 
 nature cannot be exhibited in its vast power and variety, 
 without this species of association. 
 (3.) History, and a In bringing this lecture to a close, I 
 
 knowledge of man's have to remark that the science of go- 
 moral and physical , ..... , 
 nature, are more to vertim ent and politicks is much more in- 
 
 be relied on than po- debtee! to authentic history, and an accu- 
 
 litical systems. , • , ... ,, , , 
 
 J rate acquaintance with the moral and 
 
 physical constitution of our species, than to the theories 
 and speculations of philosophers. It cannot be doubted, 
 however, that the learning, zeal and ingenuity displayed 
 in these investigations into man's natural state, and his pro- 
 gress to political refinement, though based on much specu- 
 lation, have contributed in no small degree to illustrate 
 the science of natural jurisprudence, and to fashion our 
 minds to correct views in political philosophy. But in 
 order to avoid error, we must study human nature in all its 
 varieties, in all ages, and in all countries, and be always 
 careful to separate history from fable, the latter being by 
 far the greater portion of a great deal that is called history. 
 Political wisdom, also, will be found to be the offspring of 
 experience, not of theory; and history is the record of that 
 experience, and its results. From this source must we de- 
 rive those lights which experiments shed upon the specu- 
 lations of men; and to these only will students look, as 
 the lamp and clue which are to direct them to the adytum 
 
 of truth. 
 
 Hinc orantibus 
 
 Responsa dantur certa. 
 23
 
 LECTURE V. 
 
 OF THE RIGHT OF CIVIL GOVERNMENT. 
 
 Introduction. The motives which possibly induced 
 
 men to establish society and civil government, having been 
 sufficiently considered in the. preceding lecture, we are now 
 to discuss the Right of civil government, and to ascertain 
 the limits of that tight, by reference to the objects which 
 government is designed to attain. 
 
 Civil government, whether viewed as an improved mo- 
 dification of our primary or simple association, or as a ne- 
 cessarv evil springing from the multiplication of our num- 
 bers, and of our mutual transactions, must, in either case, 
 be subject to the limits prescribed for the accomplishment 
 of its purposes: for if we look on political union as an 
 improvement, we must measure and conduct it according 
 to the objects contemplated in that improvement; and if 
 we regard it as an evil, we must then view it as a sacrifice 
 of some good, and some liberty, for the security of other 
 goods, and oi our remaining liberty, and it were obvious- 
 ly i'.))easonable to carry the sacrifice beyond the bounds 
 dictated by the clear necessity of the occasion. We are 
 therefore to consider civil government in no other light 
 than as an association of men for the production and preser- 
 vation of good order; a good order which is to be purchased 
 by yielding up in some degree ihe liberty of self-control, but 
 which yielas, or should yield, in return, the advantages of
 
 Lect. V.] OF THE RIGHT OF CIVIL GOVERNMENT. 179 
 
 secured liberty and property, and of the tranquil discharge of 
 all acts and purposes essential or convenient to human happi- 
 ness. Viewed in this light, civil government is an insti- 
 tution established for the happiness and advancement of the 
 governed, and not, in any degree, for the advantage and 
 aggrandizement of those who govern. 
 (i.) The right of Few questions have been discussed 
 
 civil government is „, -.i ,1 
 
 . t , ° _. . . , with more warmth, or given rise to a 
 
 either Original or » 
 
 Subsequent. greater display of learning, than that of 
 
 which the object, is to ascertain the true relation between go- 
 vernors and governed. The right of civil government has 
 been at all times a topick full of interest, no less to the 
 admirers of despotic!? power, than to the zealous advocates 
 of humanity. If the sycophants of royalty have, in all 
 ages and countries, been watchful of the interests of their 
 masters, the people have not been uniformly submissive to 
 their guidance, but have chosen sometimes to understand 
 and to vindicate their own rights, or to listen to, and be di- 
 rected by the superior intelligence of a few in whom they 
 could justly confide. 
 
 By the right of civil government we mean the source or 
 tenure of civil or political power; or, in other words, the 
 right by, or in virtue of which, those exercising govern- 
 mental powers do rightly claim to exercise them. The 
 government de facto is to be distinguished from the go- 
 vernment de jure, though the former may be wisely and 
 virtuously administered, and the latter weakly and vicious- 
 ly. An inquiry into the origin and motives of civil go- 
 vernment, (which was the subject of the preceding lecture) 
 terminates with an investigation of the facts, actual or pre- 
 sumed, which induce men to submit to it; but the right of 
 civil government demands a further inquiry; and we are 
 then to examine into the tenure, and legitimate source of 
 the power claimed by those exercising political rule.
 
 130 °P THE RIGHT of [Lect. V. 
 
 These topicks are all closely allied; and hence the suhject 
 of the present lecture is the natural sequel of the prece- 
 ding. 
 
 The right of civil government may be considered, first, 
 as original, and secondly, as subsequent. By the origi- 
 nal right of civil government we mean that which arose 
 on the establishment of the particular government, and 
 which flowed from the original source of power, whate- 
 ver that may have been, to those first receiving it, and 
 whatever may have been the form of government then 
 adopted. By the subsequent right of civil government is 
 understood that which subsists during the various changes 
 that take place in the form and circumstances of the go- 
 vernment, in the persons exercising the political rule, and 
 in the members of the community over which it is exer- 
 cised. Thus, for example, if a man be selected as the 
 chief of an infant community, in him resides the original 
 right of civil government. If his son succeeds him in 
 this power, or if he himself should happen to survive all 
 those from whose choice his right originally flowed, the 
 right, if any, by which he continues to rule, or that of his 
 successor, would be the subsequent right of civil govern- 
 ment. 
 
 To ascertain the foundation or source of this" right, 
 original and subsequent: that is, to determine on what 
 principles, and by whom, and for whom it was first esta- 
 blished; how the posterity of the original framers of this 
 government are bound to obedience; and how the recipro- 
 cal obligations of those who rule, and are ruled, are con- 
 tinued throughout the various changes to which we have 
 alluded; have, simple as they are, been the topicks of much 
 discussion, and will form the only matters of inquiry in 
 the present lecture.
 
 Lect. V.] CIVIL GOVERNMENT. 181 
 
 (20 Of the original Some writers have ascribed the insti- 
 
 risht, supposed to tution, not only of primary and civil so- 
 
 arise, 1st, fr-nn Pi- • , i ,. r ^^ r.-i 
 
 yine Command; 2d, cietv ' but of a11 po'^cal government, to 
 
 from the Consent of Divine Command. They suppose that 
 
 the Governed. • . i ••.• , , • . , . 
 
 society and political rule in the abstract, 
 
 are of divine ordinance; that the right of all civil go- 
 vernment, whether original or subsequent, must be re- 
 ferred to this high source; and that if even the consent of 
 the governed be impliedly, or ever so expressly manifest- 
 ed, this is merely in accordance with a previously existing 
 right, derived from the fountain of all power. In the pre- 
 ceding lecture, when speaking of the origin of society, we 
 stated our reasons for dissenting from the theory which as- 
 cribed the institution of society to divine command. So, 
 we think, sufficient motives may be easily pointed out as 
 the source of government in fact, and to evince its rights 
 and obligations, without recourse to any injunction from 
 heaven. We conceive that political communities are to be 
 upheld or rejected on precisely the same grounds by which 
 innumerable other dictates of the law of nature are demon- 
 strated, viz. by (heir conduciveness to the good or preju- 
 dice of man. This is the great principle to which all 
 others must be reduced, and to this, as we shall endeavour 
 to show, all other principles to which the right of govern- 
 ment has been referred, such as possession, inheritance, 
 prescription &c. &c. as far as they are in any degree ope- 
 rative, are reducible at last. 
 
 We have reason to thank the diffused good sense of the 
 times, that the derivation of all government from the divine 
 command is no longer pervertible to the wicked usurpa- 
 tions on the rights and peace of mankind, to which it has 
 in worse days been abused, by ignorance, servility and 
 pride. For the position that government in the abstract 
 sprang from divine command, very naturally gave birth to 
 the notion that 'God conferred on certain individuals, fa- 
 
 :f
 
 X82 OF THE RIGHT OF [Lect. V. 
 
 milies and successions the exclusive right of political au- 
 thority over the rest of their species, and imposed on 
 others a correspondent obligation to obey them.' To 
 such absurdities does the wrong use of phrases often be- 
 tray us. To drop for the moment all consideration of the 
 idleness of such a doctrine as respects the law of nature, 
 and the genera! utility which that law is always supposed 
 to regard, we would ask what else than the arrogance of 
 despotism on the one hand, and the abjectness of slavery 
 on the other, could have engendered the notion that heaven 
 communicated a right of government even to the virtuous 
 and the wise, mucW less to the weak, the wicked, the ig- 
 norant, the imprudent, and the tyrannical indiscriminately? 
 Scarcely any supposition can be more disparaging to that 
 Providence which directs the world, than to erect into his 
 particular favourites, and to invest with the prerogative 
 which approaches nearest to his own, the spoiled inheritors 
 of hereditary rule; a race which has almost always been 
 most ignorant and wicked in proportion as this despicable 
 opinion has pervaded the age. But when we come to re- 
 member, (what no sound mind could well forget or over- 
 look) that the good of mankind is the only object which 
 the moral governor of the world can be held to entertain; 
 that general felicity is the end and final cause of all his cre- 
 ation; and that utility, which is nothing more than general 
 and durable good, is constantly proposed to us in all his 
 laws, whether collected from the physical or moral crea- 
 tion, it seems highly absurd to imagine any ether founda- 
 tion of the mutual rights and obligations of civil govern- 
 ment. It is true that the jure divino government of 
 kings has not been the notion merely of barbarous ages 
 and people, but has been a political dogma almost of our 
 own day, and been sustained by a nation eminent in wis- 
 dom and virtue; forming one among numerous examples 
 of the slow advances which have been made in political
 
 Lect. V.] CIVIL GOVERNMENT. 183 
 
 science in all countries, and in all ages of the world. It 
 would indeed seem infinitely strange, if equal and greater 
 absurdities were not discoverable in every stage of human 
 opinion, that princes should have been deemed the peculiar 
 favourites of heaven, or, to use the language of Dr Paley, 
 'to be ordained of God by virtue of any other than that 
 general decree by which he assents, and adds the sanction 
 of his will, to every law of society promotive of his pur- 
 pose, viz. the communication of human happiness:' A 
 principle, we would add, whereby the meanest minister 
 or ordinance of law is not less of divine right, than the 
 most important and equitable ordinances of the most pow- 
 erful and just princes. 
 
 It is a singular fact in the history of man, that this belief 
 of a divine right in governors has been, in all ages, and in 
 most nations, nearly as prevalent as the other, and only 
 sound opinion, which ascribes all political rule, as to both 
 its origin and form, to the consent of the governed. This 
 belief in the divine right of civil government originated, 
 we apprehend, from two causes, viz. first, from not proper- 
 ly distinguishing between the moral necessity that man is 
 under to submit to government of some kind, which is pro- 
 perly referred to the will of God; and that right claimed 
 by some kings, of governing in their own way, exempt from 
 all control or limitation from those over whom they exer- 
 cise such power. It is extremely plain, that whilst sub- 
 jection to rule of some kind is essential to the happiness 
 and well being of man, and is consequentl)-, in one sense, of 
 divine appointment, this is altogether different from the di- 
 vine right which ha> been asserted by certain monarchs and 
 dynasties. Secondly, this notion of a jure divino political 
 power arose from the ambition of tyrannical monarchs, 
 whose policy it was to inculcate a belief which not only sanc- 
 tioned their enormities, hut silenced all opposition, since it 
 would be regarded as sacrilegious to raise the arm of h«-
 
 1S4 OF THE RIGHT OF [Lect. V. 
 
 man power against the vicegerents of deity. Many kings 
 and princes have been fond to trace their origin from some 
 god. It is said that Numa received his laws from a deity. 
 The founders of the imperial city were traced to the same 
 illustrious origin. Octavius Ccesar's usurpation could be 
 legitimated only by proving the descent of the Julian fami- 
 ly from a goddess; and Alexander the Great, not content 
 with^ his descent from those celebrated heroes, Hercules 
 and Achilles, claimed to be the immediate son of Jupiter 
 Ammon. So, also, the royal family of Abyssinia claim 
 Solomon for their great progenitor, and they encourage the 
 opinion among their subjects, that they inherit from that 
 wisest of all men, a species of divine right of government. 
 We know, likewise, that the Peruvians, on a similar prin- 
 ciple, believe their Incas to be the offspring of the sun; 
 and the dynasties of Aid and Omar rest their right of politi- 
 cal rule on their descent from Mohammed, the prophet of 
 
 God. 
 
 In more modern times, and among more civilized na- 
 tions, this doctrine of the divine right of political rule 
 has generally been considered too pregnant with evil, and, 
 indeed, too absurd to be endured. The opinion which is 
 now usually advanced is, that although some government 
 is ordained of God, yet the particular form of government, 
 and the series of laws, are to be left wholly to the wisdom 
 and discretion of men, that is, of the governed. Hence, 
 in the language of Milton, 'the institution of magistracy 
 is jure divino, and the end of it is, that mankind might 
 live under certain laws, and be governed by them: but 
 what particular form of government each nation should live 
 under, and what persons should be entrusted with the ma- 
 gistracy, was, without doubt, left to the choice of each na- 
 tion.'* To the same effect are the opinions of Forteseue,t 
 
 * Milton's Defence of the People of England, 64. 
 ■j Fortes, de Laud. Leg. Ang. ciii, xiii.
 
 Lect. V.] CIVIL GOVERNMENT. 185 
 
 Parsons,* Dolman, t Bellarmine,J Sydney, || Plowden,§ and 
 numerous others to whose works we might refer, were 
 further authority necessary on such a point. In conclu- 
 sion of this question we would only remark, that most of 
 the advocates of the divine right of civil government have 
 not distinguished sufficiently between the obligation to 
 submit to political rule in general, and the duty of yield- 
 ing to the government of particular individuals, and such 
 forms of polity as they prescribe. In support of their 
 opinion, they have also uniformly applied the arguments 
 applicable only to the former, to sustain them in the latter 
 position; and have availed themselves of a confusion thus 
 inevitably produced, to uphold an otherwise naked absur- 
 dity; well knowing that as the author of nature required 
 all men to submit to government of some kind, the igno- 
 rant and nndiscriminating could be easily made to adopt 
 the opinion, that particular forms of government, adminis- 
 tered by particular families, (more especially if possessed 
 of such power for many generations) were equally obliga- 
 tory. But we now dismiss this question, (at one time of 
 great moment,) to the oblivion to which the good sense of 
 the day, or the diversion of its prejudices into some other 
 channel, has consigned it. 
 
 We now proceed to the discussion of the second divi- 
 sion of this inquiry, viz. that which refers the original 
 right of civil government solely to the consent of the go- 
 verned. 
 
 Though there has been much mistake, either ignorant 
 or wilful, on this long debated question, we cannot but 
 think that the antagonists have approached much nearer to 
 each other's opinions than they have been aware of them- 
 
 * Parsons' Answer to Sir Edw. Coke, cii. 
 t Dolman's Conference on the Succession of the Crown, 8, 9. 
 | Bellarmine de Laicis, Lib. 3, c. 6. 
 || Sydney on Government, 15, 55. 
 S Plowden's Jura Anglo. 61, 69. 
 24
 
 180 OF THE RIGHT OF [Lect. V. 
 
 selves. The question between such as refer this right to 
 divine command, and those who found it on consent, ap- 
 pears resolvable into this shape, viz. whether this contract, 
 (for a contract it must be to every rational appreher-sion,) 
 may rest on the same basis as other contracts, viz. the will 
 of the contracting parties; or whether it alone of all other 
 compacts, requires a divine interposition to establish and 
 fortify it. If we have not assumed the point in calling 
 government a compact, there seems to be no reason whate- 
 ver for referring its obligation, in any degree, to any other 
 principle than that which regulates all other agreements, 
 that is, the mere will of the contracting parties. If it be 
 a contract, it lies on those who assert that it differs from 
 others, to prove how and why it differs. No reason, wor- 
 thy of that name, has ever been assigned for referring 
 political rule to any other origin than the consent, either 
 express or implied, of the governed. It has rested at 
 all times on mere assertion, forced analogies, and con- 
 fused reasonings deduced from expediency, or the mere 
 moral necessity of yielding to government of some kind. 
 But if a particular government be not wholly independent 
 of the consent of the governed; if it reposes, in any degree, 
 on their consent, they may well ask for evidence of its 
 having any other basis than that of consent. It may be 
 here remarked, that not every tiling to which a man vo- 
 luntarily consents, is therefore just and lawful, according 
 to the law of nature. It is undoubtedly obligatory on him 
 who consents or contracts, so far as it is uncontradicted by 
 the precepts of that law; but still its character cannot be 
 conceived to be in the least changed by the circumstance 
 of consent; so that justice and injustice, right and wrong, 
 are abstractly altogether independent of man's consent. 
 Consent, indeed, may tend to evince more clearly the pro- 
 bable character of an action; but it can make it neither 
 more right, nor more wrong. How then, it may be asked.
 
 L ec t. V.] CIVIL GOVERNMENT. 187 
 
 can the right of civil government be referrible to consent, 
 when we deny to consent the power to confer on the ac- 
 tion a character, so as to make it right or wrong, and there- 
 fore obligatory or otherwise on him who consents? The 
 question is a natural one, and the point demands some ex- 
 planation. We have hitherto maintained that utility or 
 expediency is the sole basis and measure of the natural 
 law. From this we educe general rules, and to this we 
 refer our conduct when we desire to ascertain its justness. 
 But as God has made no man the judge of another, and as 
 all individuals are essentially entitled to the exercise of 
 their own judgments, whatever the difference of natural 
 endowments may be, there can be no other depository of 
 the precepts of the natural law, than each man's bosom; 
 no other interpreter of its language, than his own judg- 
 ment Hence men are naturally quite independent of each 
 other, and while they must all recognize the general con- 
 venience as the measure of their actions, each must judge, 
 in the last resort, of the conformity of every action, or of 
 anv course of conduct, with that measure or standard. 
 This being the case, we find that man's independence of 
 judgment becomes itself speedily limited by that very uti- 
 lity or expediency, and that we must submit to certain 
 rules which the common sense of mankind has in all times 
 and circumstances found essential to the just order and 
 peace of human life; and the necessity of keeping one's 
 promise or contract, will be found to be a primary princi- 
 ple, very soon recognized, and fully established. 
 
 Now, in giving a promise, or entering into a contract, 
 we express our consent, and the expression of that consent 
 is the date from which the right of another, and our own 
 obligation commence. Before that consent was given, there 
 existed only such a right, and such an obligation, as general 
 expediency created, and we are to look to the consent 
 as merely defining and ascertaining a right and obli-
 
 J38 OF THE RIGHT OF [Lect. V 
 
 gation that repose on the rule of expediency, which binds 
 us to keep our promise. Hence we see that the general 
 happiness is the origin and measure of the right; individual 
 independence is essential to the preservation of that happi- 
 ness; that independence confers on all the power of sus- 
 pending assent; but. that, once given, defines the right which 
 before was indefinite and unascertained. Thus, for exam- 
 ple, a man already convinced of the justice of a required 
 action, is under an obligation to God to perform it, and 
 under a general obligation to man likewise; but as no one 
 can undertake to decide for him, without violating a first 
 principle of nature, one thing is wanting to confirm, or 
 rather to ascertain the right, and that is supplied by the 
 individual's consent. While it is therefore very true that 
 expediency is the remote basis of the right of civil govern- 
 ment, it is equally certain that the consent of the parties is 
 the immediate fountain of the right; in the same way that 
 natural law dictates marriage, and individual consent binds 
 the parties under the immediate obligation. So that in 
 truth, though expediency and consent should go hand in 
 hand, yet we may properly reject expediency as the imme- 
 diate foundation of political rule, and contend that consent 
 is the true basis, although consent per se, and independent- 
 ly of utility, cannot confer the character of right. Hence, 
 we must go a step further before we get entirely rid of the 
 objection, that consent does not give the character of right 
 to an action. And here it may be asked, whether the con- 
 sent of men to live without the restraints of civil govern- 
 ment, would make such a state of perfect freedom right in 
 itself. There can be no doubt, as we have before remark- 
 ed, that there exists an abstract fitness of things, indepen- 
 dent of all human opinion, and which is perfectly suited, 
 could we but know it, to promote the best possible happi- 
 ness of the race. But as this fitness must be perceived by 
 human judgments, before it can be adopted and adhered to
 
 Lect. V.] CIVIL GOVERNMENT. 1S9 
 
 as a rule of conduct; and as it subsists only in the human 
 mind, so far at least as it concerns man in this world, and 
 is therefore to be seen through its medium alone; it follows 
 that that which men, or a clear majority of mankind, con- 
 sent to as expedient, just and fitting, is the only measure 
 of that expediency, justice and fitness. These propositions 
 are equally true whether we admit or deny a moral sense. 
 Hence, nothing can be declared to be true, but what the 
 mass of mankind, with the means of judging, and in the 
 exercise of their sober senses, consent to consider as such. 
 And it is by this almost universal consent that the expedi- 
 ency of civil government is demonstrated. As far as our 
 argument is concerned, it is of no consequence that the ad- 
 vances to truth have been very gradual, and that the opin- 
 ions of mankind on many important topicks have under- 
 gone great mutations. Happily, nature has so ordered it, 
 that the principles essential to the formation and conserva- 
 tion of society, have been much the same in all ages; and 
 if our deductions from these first and acknowledged princi- 
 ples are not always just; if, from time to time, we discover 
 that the track of our reasoning deviates from good logick, 
 and that our conclusions are to be rectified accordingly; this, 
 we say, although it may serve to show us that abstract truth, 
 and what we think we have demonstrated to be such, may 
 be different things in themselves, yet does not relieve us 
 from the necessity of considering the one as the other, since 
 there is no possibility of distinguishing them, as guides of 
 human action. If consent, therefore, cannot make a thing 
 right or wrong in the abstract, it is at least an intimation of 
 what men consider such; and, as regards them as moral 
 agents, it is truth and right, since they can have no ac- 
 quaintance, unless by some supernatural revelation, with 
 any other species of right. 
 
 Hence you perceive with what reason we pronounce that 
 the right of civil government has its origin in the consent
 
 j gQ OP THE RIGHT OF [Led. V. 
 
 of the governed; and that this is the true, the rightful, and 
 the only source of legitimate political power. 
 
 When we come to review the various opinions as to the 
 foundation of what is called the subsequent right of civil 
 government, we shall find no difficulty in showing that 
 there is no occasion for distinguishing so warmly as has 
 been done by some writers, between expediency and con- 
 sent; and that expediency, if not. followed by consent, can 
 never be the source of legitimate political power, be it ori- 
 ginal or subsequent. 
 
 - ,. * ^ We have previously stated, that fay the 
 
 (3.) Of the Subse- r 
 
 quent Right of civil subsequent right of civil government is 
 government; and 1st ^^ thaf ^y aut hority by which a gO- 
 that this, as well as m 
 
 the. original right; is vernment, once established, is afterwards 
 founded on consent. cont i nuec ] ? either by the original function- 
 aries, when those who were first governed no longer exist; 
 or by the heirs or other successors of those functionaries. 
 The title by which these latter claim to exercise the powers 
 of government, may be the same as, or very different from 
 that which sustained the government originally. 
 
 According to the opinion we entertain as to the true ori- 
 gin of civil power, a government may originally have been 
 wrongful, for it may have been usurped by fraud or vio- 
 lence, and yet it may subsequently become rightful by the 
 mere consent, express or implied, of the governed. If the 
 original right of political rule be referrible only to consent, 
 it would seem to follow that the subsequent right can be as- 
 cribed to no other cause;* and yet this has been doubted by 
 some learned and able writers. Mr Macaulay remarks, that 
 'the division of this right into original and subsequent, had 
 been undeserving of notice, had not some political philoso- 
 phers endeavoured to maintain, that however the consent of 
 a political community may have been originally necessary to 
 constitute a rightful government, yet the right of a govern- 
 
 * Macau. Rudi. 140.
 
 Lect. V.] CIVIL GOVERNMENT. 191 
 
 merit already established, may exist independently of such 
 consent' The grounds on which these writers would rest 
 the subsequent right of government, we shall presently 
 proceed to explain, and endeavour to confute. We would 
 premise, however, that in referring the subsequent, as well 
 as the original right, in all cases to the consent of the go- 
 verned, the principle of expediency, to which we have so 
 often adverted, is in no degree impugned: for the moment 
 that we acknowledge the happiness of man to be the sole 
 object of civil rule, and of course the only measure of its 
 restraints, we perceive the necessity of allowing men the 
 full exercise of their discretion in the choice of a govern- 
 ment and rulers. It is not only that there is no umpire to 
 decide who are the wisest and best, and to select them as 
 their political guides; nor that power begets injustice and 
 folly in the best and wisest bosoms; that men are induced, 
 at last, to refer to the great mass the selection, not only of 
 the constitution and its administrators, but also the expe- 
 diency of every change in either, or in both. The people 
 must be regarded, after all, as the best and the only judges 
 of their true interests, and what is promotive of them. If 
 they are not, to whom can the matter be referred? Igno- 
 rant, interested, mistaken, capricious and rash, no doubt, 
 they often are; yet in what class of mankind, at once wise 
 and just, shall we hope to find a depository of their inter- 
 ests? What body of men would be always wise enough to 
 rule; and, if wise, unassailable by the lust of power? It is 
 very true, that a body of men in every respect qualified for 
 the salutary exercise of power, may occasionally be invest- 
 ed with it; but who are to be their successors; who shall 
 correct their errors, should they commit any; who shall 
 displace and punish, if any of them should become corrupt? 
 The People. 
 
 What is now urged, therefore, in regard to the people, 
 obviously relates to them as the permanent tribunal and 

 
 192 OP THE RIGHT of [Lect. V. 
 
 source of all political power; who, though they may often 
 delegate portions of that power, must still remain the ulti- 
 mate, as they were the primary fountain of all knowledge, 
 and of all authority. 
 
 That consent of the people is the only mode of originat- 
 ing and continuing the right of government, is indeed, like 
 other plain propositions, yet more demonstrable from the 
 absurdity of assuming any other principle as its basis, than 
 its own intrinsick reasonableness. If, then, we examine 
 the pretended titles to subsequent dominion, and apply the 
 reductio ad absurdum vel impossibile to each, we think 
 it will be found that they are wholly to be rejected as the 
 sources of a legitimate title to political dominion. These 
 supposed grounds of the subsequent right of civil govern- 
 ment, are reducible to the following six, viz possession, 
 inheritance, prescription, ancient consent of the govern- 
 ed, virtues of political rulers, and expediency ; each of 
 which, it has been urged by some writers, is sufficient to 
 legitimate an existing government. We propose to make 
 a few remarks on each, and 
 
 1. Of Possession. This at once presents itself to the 
 mind as a very singular ground on which to establish a right. 
 It is true, indeed, that the municipal laws of most countries 
 recognize, under some circumstances, a preference for, or a 
 prima facie right in a possessor; not because he is the pos- 
 sessor merely, but because there is a supposition, in most 
 cases in which possession is respected, that there is no one 
 who can exhibit a better title. Where we find one in actual 
 possession, without any knowledge on our part of the 
 means by which he obtained it, or now retains it, it is a 
 just presumption that the possession and the right are not 
 severed, but that they harmonize in the same individual. 
 This inference is drawn from the admitted existence of a 
 right somewhere, and it then becomes a rule of mere po- 
 licy, that melior est conditio possidentis; and this obtains
 
 Lect. V.] CIVIL GOVERNMENT. 193 
 
 until a better title be made out, when the right takes place 
 of that which was tolerated for a time, and the rule of po- 
 licy yields to the superior claim of him who is out of pos- 
 session. Possession then, even when favoured by munici- 
 pal laws for the quieting of controversies, is no more than 
 a temporary presumptive title; it is regarded as a mere evi- 
 dence of right, and not as the source of it; for whenever 
 there exists a clear right in opposition to such possession, 
 there, as we have seen, the possessory claim is wholly un- 
 availing, except, indeed, in the solitary case of what is 
 called prescription or limitation. In such case, the positive 
 law has defined the time in which the right must be pur- 
 sued, which, if disregarded by the true owner, clothes the 
 mere possessor with a title which overreaches that of the 
 person out of possession. But, even in this case, it would 
 be more proper to regard it as the conferring on the pos- 
 sessor of anew right, than as the confirmation and enlarge- 
 ment of an old one. This title of limitation or prescrip- 
 tion, moreover, is not a right flowing from possession 
 merely, but is a positive estate or property vested by the 
 law of the land, which thus punishes the laches of the for- 
 mer owner. At the same time that these laws stimulate 
 the indolent to a timely vindication of their just rights, 
 they quiet the titles of those in possession, and thus give 
 security, not only to the mere possessor, but to those who 
 have been at all times rightfully possessed. The foregoing 
 views in respect to property are, in part, equally applicable 
 to the mere possession of sovereign power. But indepen- 
 dently of what has been thus far stated, we may now re- 
 mark, first, that it is always unsound to argue from matter 
 of fact to matter of right; nor can any just reasoning or 
 analogy rest on a comparison of mere positive institutions 
 with the general precepts of natural law, since the former 
 may pursue, or vary from the latter, whilst the latter can- 
 not be made to yield in its provisions to the enactments or 
 25
 
 194 °F THE RIGHT OF [Lect. V. 
 
 policy of human laws. And, secondly, we may remark, 
 that if the right of civil government did not originate in 
 possession, it cannot be continued by possession, because it 
 may be laid down as an axiom in morals, no less than in 
 physicks, that a consecutive series of inefficient causes can 
 never produce a positive result. If the original taking of 
 possession does not confer a right, it is not conceivable 
 that the continuance of that possession can add any thing 
 to that right. For if I have supported myself in the un- 
 just occupation of my neighbour's habitation for a year, the 
 injury is so far from being lessened by length of time, that 
 it is in fact only aggravated. Such a foundation of right 
 involves the paradox, that the longer an injury is continued, 
 the less right has the injured person to complain, and the 
 more innocent does the wrongdoer become; and yet such, 
 in reality, would be the effect of placing the subsequent 
 riorht of government on mere possession. In conclusion of 
 this topick we will only remark, that possession, as a source 
 of any right, is still less tenable on the principles of natu- 
 ral law, than on those of civil society. It is said, indeed, 
 that occupancy is the mode of acquiring property in a state 
 of nature; yet even this, when correctly understood, will 
 be found to rest solely on consent, express or implied, as 
 has been shown in a preceding lecture. Occupancy shows 
 the intent of men to appropriate specific things, and is the 
 date of their exercise of a right; but it is evident enough 
 that occupancy per se is not the foundation and actual 
 source of the right. This may be exemplified by suppos- 
 ing men to appropriate by occupancy certain things, as, for 
 instance, the ocean, wherein property is wholly unneces- 
 sary for the purposes of life and convenience. In such a 
 case we know that occupancy would confer no right whate- 
 ver, because the consent of mankind could never be pre- 
 sumed to an appropriation of that sort. We have dwelt 
 perhaps unnecessarily long on this point, as, without argu-
 
 Lcct. V.] CIVIL GOVERNMENT. 195 
 
 ment, there can be no hesitation in rejecting possession as 
 a source of the subsequent right of government. 
 
 2. Of Inheritance. What has been stated of a conti- 
 nued possession of the powers of civil government, applies 
 in a considerable degree to inheritance, or hereditary suc- 
 cession. A man can transmit to his heirs only what belongs 
 to himself; and he leaves his rights subject to all the limi- 
 tations and defects which they had while they appertained 
 to himself. If a false or defective right was liable to be de- 
 feated in regard to the possessor, there can be no reason why 
 it shall gain strength in the hands of his posterity, who, in- 
 dependently of positive law, are always considered as pars 
 antecessoris, and, as such, clothed with no greater rights 
 than he. Hence the legal maxim, founded on the nature and 
 reason of things, 'quod derivativa potestas non potest esse 
 major primitivd.' There is no question, then, that in the 
 mere transmission there can be no quality which fortifies a 
 weak claim, or justifies a bad one. Whatever was the infir- 
 mity in the ancestor's title, descends with it, and is visited on 
 the heir. Even if the title of the possessor be a valid one, 
 its vesting in his posterity depends altogether on the nature 
 of the right itself. Some rights are merely personal; oth- 
 ers are alienable inter vivos. Some are, by the common 
 consent, not only allowed to be transmissible by a formal 
 declaration, called a will, but, in the absence of such a de- 
 claration, vest in the heir of their late possessor. All this, 
 however, depends wholly on the consent of the community, 
 either expressed or implied. The right to make a will, 
 and the succession ab intestato, even of things in which 
 we have absolute property, and may alienate during life, 
 are not necessarily consequent on such absolute property, 
 and such right of alienation. If this be the ease in regard 
 to corporeal things of our own acquisition, and which, to 
 use the language of the Civilians, are in patrimonio, it is 
 manifestly absurd to treat sovereign power, or the right of
 
 196 0F THE RIGHT OF [Lect. V. 
 
 civil government, as hereditary property. A sound ad- 
 ministration of government and law demands experience, 
 knowledge and integrity; and these, unfortunately, are 
 merely personal, and consequently are wholly incapable of 
 hereditary transmission. To confer the right then, without 
 its essential concomitants, would be obviously unreasonable. 
 The mischiefs which would be apt to result from dealing 
 with sovereignty as hereditary property, may indeed be 
 countervailed in a degree, as they are in many countries, 
 particularly in England, by the virtual government of 
 ministers, in some sense elective, or controllable by the 
 voice of the people; or they may be allowed by the con- 
 sent of the same people, to avoid greater mischiefs from 
 competitions for royalty. But this furnishes no argument 
 in favour of the hereditary transmission of the right to go- 
 vern; for all this is based on consent, and does not come 
 up to the point of inquiry, which is merely, whether the 
 posterity of a sovereign has any right whatever in conse- 
 quence and virtue of the powers formerly exercised by 
 such sovereign. If the progenitor possessed it not, his 
 heir can have no better title; and if the ancestor were a 
 lawful ruler, and his heir competent and virtuous, still his 
 claim to the exercise of sovereign power would not be su- 
 perior to that of others, unless it were conferred on him by 
 the consent of the governed. Inheritance per se may, 
 therefore, be wholly rejected as a source of the subsequent 
 right of civil government. 
 
 3. Of Prescription. The next plea on which the 
 right to supreme political power has been supposed to rest, 
 is that of long continued inheritance, or succession; that 
 is, of custom, more frequently called prescription. A pre- 
 scriptive right to command, and the correlative prescrip- 
 tive duty to obey, is a doctrine which sounds very strange 
 to republican ears. Its novelty, however, should be no ob- 
 jection with us to its correctness. If it can pass the
 
 Lect. V.] CIVIL GOVERNMENT. 197 
 
 ordeal of just examination, it is entitled to be respected, 
 though it be wholly unknown to the political jurisprudence 
 of this, and all other republican countries. We are to in- 
 quire, then, whether sovereign power can, in its nature, be 
 liable to the rules of prescription. If we advert to the 
 definition given of prescription by Grotius, Puffendorf, 
 Rutherforth and others, we shall find that no part of it can 
 be made to embrace sovereign power, unless, perhaps, it be 
 conceded that the entire and absolute power was in fact in 
 those who exercised political rule, without any ultimate 
 scintilla juris in the people; and even with that admis- 
 sion, we should find no difficulty in showing the inapplica- 
 bleness of prescription to such a right as that to political 
 power. Prescription has been defined to be that right 
 which may arise from long, honest and uninterrupted pos- 
 session, though, before such possession, some other person 
 or persons, and not the possessor, had the ownership. The 
 doctrine of prescription rests altogether on the presumed 
 dereliction of the former owner. Now, if prescriptive 
 sovereignty means any thing, it will not only legitimate 
 the title, of the successors of a lawful sovereign, but also 
 confirm the claim of those now in power, even against the 
 consent of the governed, be they ever so vicious and in- 
 competent to govern. If the long, honest and uninter- 
 rupted exercise of political rule is of itself sufficient to 
 confer a perpetual title, without regard to the merits of the 
 present incumbent, it can be on no other ground than that 
 sovereignty, like property, if once alienated, can never re- 
 vert. But the exercise, of all political power is for the 
 happiness and protection of the governed. It differs, in its 
 very essence, from propert} 7 : it is not, in its nature, aliena- 
 ble for ever, but only so long as the alienee is fully qua- 
 lified to rule; and there can be no tribunal to judge of that 
 qualification, but that of the majority of the people. A 
 prescriptive right of sovereignty implies that it originated
 
 198 OF THE RIGHT OF [Lect. V. 
 
 honestly, that is, with the consent of the governed; and 
 that from the long and uninterrupted exercise of it, those 
 who are at present in power, are equally in hy consent: but 
 this latter presumption endures only until the people have 
 judged, that he who is now in power, is not competent to 
 rule them. When that opinion is manifested, all presumed 
 consent must vanish. If the political power originated in 
 wrong, the doctrine of prescription does not apply. If it 
 originated in right or consent, it is continued by implied 
 consent, which, in truth, is not a prescriptive title at all. 
 But the friends of this prescriptive right are not content 
 with this; they go further, and contend that an honest title 
 becomes a perpetual one, simply by long and uninterrupted 
 use. But they must at least admit that mere length of time, 
 and uninterruptedness of possession can raise no presumption 
 in favour of its continuance, unless there be both knowledge 
 and liberty in the governed, whereby they might have effi- 
 ciently dissented; for if their silence were the result cither 
 of ignorance or fear, no inference favourable to its conti- 
 nuance can be made. But allowing to the advocates of 
 this prescriptive right, that it originated honestly? and was 
 continued by the voluntary consent of the governed, 
 through a succession of ages; and admitting further, that 
 the present possessor is fully qualified to govern, can these 
 facts confer on him a title to political rule, after the s 
 verned have manifested a desire to change their ruler, or 
 the form of their government? We apprehend not, be- 
 cause the long, and uninterrupted continuance of political 
 power can have no other effect than to raise the presump- 
 tion of a full consent to all that has passed; but it cannot 
 be considered as an alienation of political power for the 
 future, because it is not of the nature of political power to 
 be granted or alienated absolutely, iti reference to the fu- 
 ture. On the whole, therefore, it may be laid down, that 
 prescription, like possession and inheritance, is at most but
 
 • Lect. V.] CIVIL GOVERNMENT. 199 
 
 evidence of the right of civil government, and can never 
 be the source of that right. 
 
 4. Of Ancient Consent of the Governed. This is 
 another pretended foundation of the subsequent right of 
 civil government, and appears to us equally untenable with 
 those we have already examined. To compare the right 
 of a sovereign to impose obligations on his countrymen 
 and posterity, to the recognized right of an individual to 
 charge and burthen as he pleases, the property which he 
 transmits to his descendants, appears to us extremely ab- 
 surd, were it on this ground only, that the property which 
 we transmit is our own, while the personal and political 
 liberty of our countrymen is entirely theirs, and cannot be 
 touched or affected, in right, by any act of ours. If my 
 progenitor, immediate or remote, is incompetent to bind by 
 his acts my personal and political rights, though he may 
 fetter the transmission of his property as he pleases, it 
 seems to follow that any number of men, or, in other words, 
 any prior generation, is equally incompetent to bind a suc- 
 ceeding one. The ancient consent of the governed can no 
 more he construed to extend its obligatory force to the 
 present, or to future generations, than the present consent 
 of an individual to remain in servitude or in poverty, can 
 bind his posterity to remain forever in the like condition. 
 Nor is the case at all varied by the fact, that a positive and 
 great benefit was conferred on the governed by the politi- 
 cal rule to which they consented. The benefit conferred, 
 and the power gained, are reciprocal, and merely personal. 
 A contrary doctrine would be pregnant with every mis- 
 chief; it would be making one set of people judges of the 
 rights and condition of another; and, still more, it would 
 be establishing a fixed rule in regard to a subject variable 
 in its very nature. For the greater part of governments, 
 taking their rise in the infancy of societies and states, are 
 adapted only to that infancy, and necessarily require pro-
 
 200 OF THE BIGHT OF [Lect. V. 
 
 gressive alterations, perhaps not merely in the smaller mat- 
 ters of the law, but also in the fundamental principles of 
 the government. Allowing, therefore, the original framers 
 of a government to have done the best for the occasion, 
 which in truth has but seldom been the case, yet if the 
 right in question be allowed, they would have left only a 
 curse to succeeding generations. Who would be thankful 
 to his progenitors for their wardrobe, however ample, and 
 adapted to us at the time, if he were to receive it under the 
 condition to wear it in all the different extremes of seasons, 
 and amidst all the variety of successive modes? 
 
 5. Virtues of Political Rulers. The claim to politi- 
 cal rule, based on the virtues of those who de facto have 
 the charge of government, also appears to us wholly unte- 
 nable, although it was a very favourite doctrine with the 
 political philosophers of ancient times. However conspi- 
 cuous and useful these virtues may be, they certainly, of 
 themselves, can impart no such authority, unless they be 
 thus respected by those over whom jurisdiction is claimed. 
 For it may well be asked, who shall sit in judgment on 
 these virtues, and declare their existence and operation? 
 If those who claim their possession, should in fact be supe- 
 rior to those who are at present in power, who shall pass 
 on the conflicting claims, or make a selection among per- 
 sons equally competent? If, on the other hand, those who 
 are in power are more virtuous and wise than all others, 
 how is the fact to be ascertained but by the ultimate deci- 
 sion of the people; and when thus ascertained, does it lead 
 to any thing beyond the expediency of continuing them in 
 the exercise of the political rule? If the political rulers be 
 more wise and virtuous than any who are not in power, 
 and they be not the sole judges, but the people are to de- 
 cide, and even do decide that they are pre-eminent in every 
 qualification; Plato and Aristotle, indeed, may hold them 
 to be kings de facto and de jure, but the political philo-
 
 Lect. V.] CIVIL GOVERNMENT. 201 
 
 sonhy of more modern times, and especially of our own 
 day, must smile at the strange conceit, and demand some 
 further recognition of their political authority, before the 
 people can be' bound by an allegiance to them To deny 
 to the people this right, is virtually to deny them the 
 pursuit and security of their own happiness; and to trans- 
 fer to their governors an unalterable right to sovereignty, 
 because they had wisely and virtuously administered the 
 government, and might continue so to do, would be very 
 like giving to your agent the whole of your valuable pos- 
 sessions, in consideration of his skilful and honest manage- 
 ment of them. The knowledge and virtues of rulers may, 
 indeed, often render it highly expedient that they should 
 be continued in power; but the righr of judging of this ex- 
 pediency can reside no where but in the majority of the 
 people; and this amounts to a full rejection of the doctrine, 
 that the virtues of political rulers can be relied on as a foun- 
 dation of the right of civil government. 
 
 Were we, indeed, to argue from matter of fact to matter 
 of right, it must be admitted that history furnishes us with 
 many striking examples of such respect to wisdom and vir- 
 tue, as would sanction the idea thai they of themselves con- 
 ferred the right of political power. Where the people have 
 been free to act, though ever so rude and savage, they have 
 very generally selected for their rulers, those who were dis- 
 tinguished for age and experience. The kings, governors 
 and magistrates selected by the people in the infancy of so- 
 ciety, were generally venerable for their age, and admired 
 for their wisdom, knowledge, and long experience. The 
 very names or titles usually conferred by ancient nations on 
 their rulers, indicate their great respect for age, and the 
 virtues of the heart and mind. Alderman, senator, elder, 
 father, ancient, king, are all words expressive of age or 
 knowledge. The title also of JJ'tfl, Rash, among the He- 
 brews, of Sheikh among the Arabians, and Heix among the 
 26
 
 202 OF THE RIGHT OP [Lect. V\ 
 
 Scythians, are of like import. Camden derives our word 
 king from the Saxon Cyning, or from the words can and 
 ken, the former signifying power, and the latter, know- 
 ledge, both of which kings ought, and, in the simplicity of 
 primitive times, were presumed to possess. 
 
 6. Of Expediency. The last of these supposed founda- 
 tions of the right of civil government, on which we have to 
 remark, is Expediency. In descanting on this principle, as 
 it has been applied to the original right of civil government, 
 we have already considered some of the objections to which 
 it is justly liable. What remains to be said in regard to its 
 operation in sustaining the subsequent right, will be conse- 
 quently more limited. 
 
 That expediency, utility, durable happiness, or whatever 
 other name we choose to call it, is the only ground and 
 measure of human obligation, is a doctrine that has been 
 ably defended by many eminent writers, as Paley, Hume, 
 Bentham and others, though it has been warmly impeached 
 by Mr Gisborne, and, in the opinion of Macaulay, entirely 
 overturned by him. We cannot pretend, within the nar- 
 row limits to which we are necessarily circumscribed, to 
 enter fully into so extensive and celebrated a question. 
 Though we differ from Paiey and others, in attiibuting 
 the light of government in any case to expediency, yet we 
 would refer it secondarily to expediency, and primarily to 
 consent; or, in other words, we think the expediency itself 
 must be ascertained by the general consent, or by that of a 
 majority ol the people. It is sufficient for our purpose to 
 assume expediency as the reason of the institution of civil 
 government, and the measure of its laws, its constitutions, 
 and its various modifications; and, in the sense which we 
 have just intimated, we think it will be found to steer clear 
 ol the objections to which the theories on either side have 
 been supposed to be liable.
 
 Lect. V.] 
 
 CIVIL GOVERNMENT. 203 
 
 ' If it were expedient originally to introduce government, 
 or any particular form of 'polity, it might be expedient sub- 
 sequently to modify and accommodate it to various exigen- 
 cies; and we conceive that neither of these expediencies 
 can be ascertained but by the consent of the governed. 
 Expediency may justify, and almost force that assent; but, 
 no political rule, we think, can justly exist until the go- 1 
 verned have pronounced on the expediency, or, what is the 
 same in effect, have given their implied consent by wilful 
 silence, they having full knowledge, and perfect liberty. 
 Thus we may reach the same conclusion as others, though 
 by a different track. While expediency must be the law 
 to each man's conscience, there is no human tribunal to 
 enforce the law. Neither those who like himself require 
 to be ruled, nor those whom nature hath ever so eminently 
 fitted to rule, can enforce his consent to any form of go- 
 vernment on the score of expediency. This motive, in- 
 deed, should guide his consent, and, if he wilfully acts con- 
 trary to it, will mete out exactly the measure of his guilt 
 to the great governor of the world; but as respects his fel- 
 low beings, his assent is not only the date, but the source 
 of right, and on this assent, express or implied, must the 
 right of dominion solely depend. We have shown that a 
 man's assent to actions, cannot alter their quality; and 
 while we contend that consent must exist to justify a go- 
 vernment, we do not see the absurdity of Dr Paley's expe- 
 diency, as a principle to regulate that consent. That au- 
 thor, indeed, makes it the ground of the subjects' obliga- 
 tion. It is, without doubt, the motive which every good 
 and wise man must have in view, and must propose to him- 
 self when he yields his assent to any measure, whether pri- 
 vate or publick. Still, expediency per se cannot confer 
 the right, but must be followed by consent, before the ex- 
 pediency is ascertained or denned. And this expediency, 
 also, must not be mistaken for what appears to be such to
 
 204 OF THE RIGHT OF [Lect. V. 
 
 every narrow mind, and untutored understanding. The 
 rules of general utility, or expediency, are, after all, the 
 rules of morals, when applied to private affairs, and of po- 
 liticks, when they are applied to publick concerns. They 
 are the general rules deduced from large views of human 
 life and affairs, and are no more to be left to the invention 
 or the interpretation of vulgar minds, than the principles 
 of ph) sicks are to be established by them. Expediency 
 soon taught rules suitable to infant communities; and the 
 principles of truth are so consistent with themselves, that 
 they naturally expanded, and accommodated themselves to 
 the extension and complication of society. Morals may 
 perhaps be compared to opticks: their original princ pies 
 are few and simple; and he who has measured a few angles 
 of the rays of light, comprehends with facility the pheno- 
 mena which lead the ignorant observer into a thousand 
 false notions as to their causes, though experience keeps 
 him from practical mistakes regarding them in daily life. 
 This expediency, we repeat, is no vulgar, every-day conve- 
 nience, adapted to a present particular exigency; but is 
 founded on general views; is embodied in general rules, to 
 be found in the books of ethicks and politicks; has been 
 practised by legislators; and is every where taught by 
 wisdom, and embellished by genius; animates an Aristo- 
 tle, and sparkles even in the system of a Lucretius. 
 
 The very justice of referring the original right of civil 
 government to consent, is the dictate of this expediency. 
 For if God had determined we should be happy at all 
 events, and with this view had imposed civil society and 
 political government upon us at our very creation, it 
 would have been tantamount to depriving us of free agency, 
 not only in this, but in other matters. Divine wisdom, 
 however, has acted towards man in this matter as in other 
 objects of good presented to his choice; it lias given to man 
 a liberty or power of choosing, and, of course, of consenting
 
 Lect. V.] CIVIL GOVERNMENT. 205 
 
 or dissenting; while, at the same time, it has proposed mo- 
 liv, ? for determining that choice. And in deciding; on this 
 question from these motives, we should not fail to remem- 
 ber, that if we consider expediency as any thing; more than 
 a guide (or our consent, we should necessarily be obliged 
 to have ascertained, before we did any one act, whether it 
 were actually expedient, and correspondent with the design 
 of God in the government of the world; whereas, accord- 
 ing to what has been already urged, it is sufficient for 
 others that our consent has been obtained; and for our own 
 consciences, that we have consented on grounds which the 
 common sense of mankind conceives to be just. 
 
 Dr Paley's doctrine, that 'every man must judge for 
 himself concerning the general expediency of publmk mea- 
 sures/ has been objected to by Gisborne, Maeaulay and 
 others. But their objections soem equally applicable to 
 their own theory of consent. The objections to which we 
 aliude, are the confusion and anarchy which would be in- 
 troduced by the variety and inconsistency of men's opi- 
 nions, and the inconvenience of preferring these to the 
 voice, will and consent of the community. But, in reality, 
 what advantage in these particulars has the principle of 
 consent over that of expediency? It is obvious to the least 
 reflection, that consent, however arbitrarily it may be sup- 
 posed to bind others, must proceed in every man's mind 
 on some reason or motive, and the question is as to this 
 motive. Whether that motive be the good of the commu- 
 nity in particular, or decorum, or virtue, (allowing them, 
 for the sake of argument, to be essentially different,) is it 
 not apparenWthat there is in men's minds as much contra- 
 riety of opinion as to the character of these, as there can be 
 imagined to exist respecting expediency? Is not every 
 man as likely to differ from his neighbour as to what things 
 fall under the denomination of particular good, decorum, 
 virtue &c. as he is on questions of general utility or expe-
 
 206 OF TPTE RIGHT OP [Lect. V. 
 
 diency; and must not his consent therefore, (while it is as 
 completely within his own power, as is his opinion as to 
 what is expedient,) be quite as likely to be given for the 
 common weal? We can, for our part, discover no manner 
 of difference. What has induced men, in violent and cor- 
 rupt times, to pull down an ancient establish nent, and 
 erect a new constitution and appoint new functionaries? 
 Generally, no doubt, the wish of the nation; or, in other 
 words, its strongly expressed consent. But what caused 
 this wish, this consent, but the vexations of the old system, 
 on the one hand, and the advantages hoped for in the new, 
 on the other? considerations which made the expediency 
 obvious, at least to a majority of the thinking part of the 
 community. Individuals, then, must judge, and give their 
 consent as to questions of expediency; but whilst this is 
 the case, no wise and virtuous man will see it expedient to 
 assist in any change, unless a clear majority deem it equal- 
 ly so; or, if you please, until he is assured of the consent 
 of a clear majority. In truth, it is apparent, on weighing 
 the different foundations which have been assigned to the 
 right, of civil government, whether original or subsequent, 
 that they all proceed on, and have at least a remote refer- 
 ence to, the notion of expediency, or consent, or both. 
 
 If we again cursorily advert to the foregoing six grounds 
 on which political power has been supposed to rest, we 
 shall not fail to find this the case. Possession and in- 
 heritance have gained something like the character of a 
 right, partly from the consent which is to be presumed 
 from them, and partly from the inconveniences which have 
 generally been found to result from a hasty*change, and 
 rapid succession of governors. So, also, prescription is 
 indebted for the force attributed to it, to the same princi- 
 ple, viz. dereliction, or implied consent. The resort to 
 the ancient consent of the governed, amounts almost to an 
 admission of the principle we contend for, not only because
 
 Lect. V.] CIVIL GOVERNMENT. 207 
 
 if one generation has the privilege to consent, another can 
 hardly he denied it, hut because by resembling these obli- 
 gations on posterity, to the charges which men sometimes 
 make on the inheritances which they leave to their heirs, 
 the similarity of this contract to others is admitted; which 
 is enough, as we before stated, to draw afier it the prin- 
 ciple we have been advocating. So, also, the virtues 
 of political rulers, when appealed to for the same purpose, 
 is a principle clearly proceeding on the idea of their ser- 
 viceableness to the governed, and this, again, is nothing 
 but another name for expediency; and that expediency is 
 presumed to be ascertained by consent, because it is be- 
 lieved that men will consent only to what they find expe- 
 dient. So, on the other hand, consent may be said to im- 
 ply expediency, because the experience of the expediency 
 must be supposed to have preceded and elicited the con- 
 sent. 
 
 We should not have dwelt thus long and pertinaciously 
 on these topicks, had not these various theories, ground- 
 less as they are, assumed an importance from the lustre of 
 the names with which they are connected, and had not 
 bad men and designing politicians attempted to justify 
 acts in political rulers, which the laws of God, and sound 
 morals unite in condemning in others. From this source 
 arose the preposterous distinction which politicians are 
 sometimes bold enough to make, between moral and politi- 
 cal virtue, and which is a monster generated by sophistry, 
 fostered by state policy, used by "wicked ambition, and up- 
 held by slavery, and vulgar prejudice. In an enlightened 
 and virtuous community this distinction can find but few 
 supporters; it is, however, a mischievous and dangerous 
 doctrine in the hands even of a few; and the people of no 
 country are so virtuous and wise as not to be sometimes 
 misled by doctrines the most unsound. It is true that 
 divine wisdom hath implanted a powerful conviction in
 
 20S OF THE RIGHT OF [Lect. V. 
 
 men's minds, of their right to happiness; so that most of 
 the artifices by which they have been occasionally deluded 
 into an abandonment of the bulwarks of their felicity, have 
 been ultimately detected. The truth is, that governments 
 have so often resulted from chance; have so frequently 
 grown up by successive and distinct accidents; been ad- 
 ded to by subtle ambition; and variously modified by 
 change of times and tempers; that it is no matter ot sur- 
 prise that their original principles of construction should 
 have been at times forgotten, and their, objects and advanta- 
 ges lost sight of. Princes, long accustomed to rule, at 
 length imagined that both the country, and those whom 
 they governed, were their patrimony; and from the long 
 abuse of power, conceived that they could do no ivrong, 
 as, what is still more strange, the people, long subdued to 
 submission, almost forgot they were not designed to be 
 slaves. 
 
 When we speak of the original principles of govern- 
 ment, we mean such as are strictly so; that is, such as are 
 fundamental, and which ought to be the basis of all go- 
 vernments: not of such views as sometimes actuate the 
 heads of two contracting parties, the one consenting to be 
 ruled, the other to rule, on certain principles. For it is 
 sufficiently obvious how political societies grew up, and 
 that the spectacle was not unfrequent, of a whole commu- 
 nity of men basely submitting themselves to unrestricted 
 servitude. Indeed, if we were to be bound by the po- 
 litical compacts, as by the bonds of our ancestors, it is 
 pretty plain that there is some time in the historj' of most 
 nations, from which tyranny might date the existence of a 
 compact between subjects and rulers, whose observance 
 would perpetuate the most lawless oppression. As to the 
 original formation of societies, we know them to have 
 been too limited in their nature and occasions, to provide 
 for the numerous exigencies, and essential changes of con-
 
 Lect. V.] CIVIL GOVERNMENT. 209 
 
 dition, which would occur in their political progress; so 
 that the just limits of the reciprocal duties of rulers and 
 subjects, could not be defined. But if we refer even to 
 the families of patriarchs and shepherd kings, (those first 
 faint images of states) we shall find in them the principles 
 which we contend are the only ones on which government 
 of any kind can be justly founded. It is not to be sup- 
 posed that the natural affection of fathers, during these pa- 
 triarchal ages, imposed any other than salutary restraints 
 on those whom they ruled, or any more than were requi- 
 site for restraining either the sallies of youthful passion 
 yet unsubdued, or correcting the errors of reason yet un- 
 disciplined. There is no other foundation for parental 
 power; and when, on the parents' decease, the government 
 of the family descended to the elder sons and branches of 
 the family in succession, they could administer the sacred 
 trust only with the view of counsel and protection to 
 those whom they regarded as equally entitled to happiness 
 as themselves, and who were free, had they so chosen, to 
 seek for counsel and protection at other hands. So that 
 whether we seek the foundation of the right of govern- 
 ment in general principles, or trace it in the ancient nu- 
 clei of societies, we are conducted to the same conclusion, 
 viz. that government is the creature of communities for 
 their good order, melioration, defence and happiness; and 
 that the people are the sole judges of what is convenient 
 and conducive thereto. 
 
 But if in all of the foregoing theories even an implied 
 consent is excluded, and their respective advocates refer 
 the right of civil government to mere possession, inheri- 
 tance, prescription, ancient consent, virtues of rulers, or, 
 lastly, expediency, wc can agree with none of them: for I 
 may possess another's property, and it gives me no manner 
 of title; I may leave to my heir estates, but they cannot 
 enjoy them unless I had been rightfully possessed; I may 
 27
 
 £10 OF THE RIGHT OF CIVIL GOVERNMENT. [Lect. V. 
 
 hold the estate of another during any period, and no pre- 
 scription can per se legitimate my title. So, also, I may 
 hold these estates with the consent of the owner, but my 
 right to hold terminates the moment he withdraws his con- 
 sent. I may make better use of these estates, and may ad- 
 minister them more skilfully and virtuously than would the 
 owner, and yet these circumstances could not add one par- 
 ticle of right to my claim to retain them; and, lastly, I may 
 be so circumstanced in regard to these estates, that it would 
 be highly expedient for the owner to permit me to remain 
 in possession; but no one could imagine that this would 
 confer on me a right to withhold them against the wishes 
 of the owner. Whence then, in all these cases, can any 
 right proceed, but from the consent of the true owner. 
 This, we conceive, is the precise case with civil or politi- 
 cal power. It originates in consent, and is continued by 
 consent; and any other notion of government is abhorrent 
 to common sense, and sound reason; whilst the administra- 
 tion of it on any other principle will sooner or later in- 
 volve it in destruction. Philosophy itself, alarmed at the 
 idea of subverting existing institutions, and of appealing to 
 the consent of injured and uninstructed communities, has 
 sought indeed sometimes, with an excusable prejudice, ; | ( 
 for other props to the political system: but she may remem- ' 
 ber on the one hand, that in extreme cases the people have 
 never been long deluded by this sophistry; and, on the '■ , 
 other, that the increasing melioration of mankind renders 
 such an appeal every age less alarming.
 
 LECTURE VI. 
 
 OF THE EFFECTS OF SOCIETV AND GOVERNMENT ON THE 
 NATURAL RIGHTS OF MAN. 
 
 (1.) Jurisdiction and The act of associating himself with a 
 Law the necessary civil society, produces a material aitera- 
 result of the change ,. ,, . , . _ .-,..,, . , 
 
 f^ m „ *»„.<> ~e „t tion in the rights of an individual. At 
 irom a state of na- o 
 
 ture to that of civil liberty before that act, to assert his rights, 
 and to redress his wrongs, without con- 
 sulting any mind, or using any force but his own, he binds 
 himself by the union to take the general will of the com- 
 munity as the guide of his; and while he gains the advan- 
 tage of having on his side a prevailing force, to aid him in 
 the assertion of his civil rights, he is, on the other hand, 
 obliged to renounce all resort to his own. In all matters, 
 therefore, in which the publick have any concern, the in- 
 dividual particularly interested is obliged to submit to the 
 common understanding, which resides in the legislature 
 and the judiciary; and to the common force, which is 
 wielded by the executive. 
 
 The standard, moreover, whereby the quality of his ac- 
 tions is to be estimated, is considerably altered: for it can 
 no longer be his individual good, nor even the general good 
 of mankind, that is to define his rights, since many things, 
 innocent as they affect individuals, or the general society 
 of man, may assume a contrary character when considered 
 in reference to the particular community of which he is a
 
 212 EFFECTS OF GOVERNMENT [I.cct. VI 
 
 member. Hence it follows, that instead of consulting his 
 own felicity, with regard at the same time to the general 
 good of mankind, a member of a civil society may more 
 properly be said to consult his happiness with regard to the 
 peace and order of that society to which he is attached. 
 
 The difference thus caused in the rights of man, may be 
 described as immediate and mediate; that is, it arises either 
 from civil union itself, or from the civil laws which are in- 
 stituted after the union. 
 
 Some rights are affected by the immediate operation of 
 the civil compact or union itself: such, for example, are 
 those which arise from an injury, either before or after it is 
 committed; viz. the defence of one's self at discretion, and 
 the pursuit of reparation for a damage sustained. Both of 
 these rights are, by the very act of union, considerably 
 modified; and sometimes, under certain circumstances, are 
 wholly taken from the individual, and vested in such func- 
 tionaries as the publick have constituted for the express 
 purpose of ascertaining and enforcing such rights. 
 
 Other rights, untouched by the mere act of civil union, 
 are nevertheless understood to be subject to such restric- 
 tions as the common will of the society may afterwards, from 
 time to time, impose on them. The relinquishment of the 
 right of avenging our own wrongs, is necessarily immedi- 
 ate, by the very nature and object of government, or rather 
 of the agreement to be governed: but after political union, 
 those rights which are not affected by the mere act of 
 union, remain in full force until the society either modifies 
 or abolishes them. Thus, to give an example of the se- 
 cond species of rights, there is no reason why a man should 
 not be permitted to vend the products of his labour at any 
 market he pleases. Every citizen, therefore, exports and 
 imports what he pleases, until the laws partially or wholly 
 forbid the one or the other.
 
 t.ect. VI.] «"W NATURAL RIGHTS. 213 
 
 Again; before this union, men have a right to contract 
 marriage in any form they please: the act of political 
 union leaves this right unimpaired, and we may enter into 
 this contract in any mode we see fit, until the society ex- 
 pressly legislates on the subject. From what has been said 
 the student at once perceives that the right to judge of and 
 to vindicate many of our natural rights, is transferred at 
 once to the society of which we become political associates: 
 whereas many other natural, and all our adventitious rights, 
 remain unimpaired until the society expressly or impliedly 
 modifies or annuls them. 
 
 Jurisdiction and law of some kind are, as we have 
 stated, the natural consequence of civil union. By juris- 
 diction we mean the right of a civil society to make laws, 
 to determine matters in dispute between its members, and 
 to compel the parties to submit to such determination. In 
 its largest sense, it means the sovereignty or power resid- 
 ing in a state or nation, by which it is enabled rightfully to 
 legislate, and to determine in reference to all matters which 
 concern the territory or soil, to all moveables therein, and 
 to the conduct of all persons who reside within its limits, 
 whether as citizens or strangers, and, finally, in regard to 
 the claim of all others, be they nations or individuals, who 
 assert a right over the country, or any part thereof, or over 
 the persons or moveables therein. This extensive power, 
 with which every independent nation is clothed, is usually 
 partitioned out by the collective body, and exercised by 
 their three great functionaries, the legislative, judicial and 
 executive branches of the government. But however this 
 power may in fact be exercised, it will be found that there 
 is no conceivable jurisdiction which may not be referred to 
 one or more of the three following heads; first, jurisdic- 
 tion in locum, or that which is strictly territorial, being 
 not only confined within certain local boundaries, but flow- 
 ing solely from the relation subsisting between the commu-
 
 014 EFFECTS OF GOVERNMENT [Lect. VI. 
 
 nity and the place over which the power is claimed. Thua, 
 every state or nation has jurisdiction in locum within 
 its territorial limits. The state of Maryland has this spe- 
 cies of jurisdiction within her own limits. The United 
 States have it within the District of Columbia, and also 
 within their forts, arsenals &c; but the other jurisdiction 
 exercised by the Union is not strictly in locum, though 
 it be restricted within the limits of the United States, but 
 flows from other sources, as we shall have occasion to no- 
 tice hereafter. 
 
 Secondly. Jurisdiction in personam,hy which is meant, 
 not merely the power to compel persons to submit them- 
 selves to the law, (for in this view all jurisdiction may 
 be regarded as ultimately in personam,) but that juris- 
 diction which flows from, and is exercised in respect of 
 some special personal privileges claimed by those over 
 whom it is to be exercised, and which privileges ex- 
 empt such persons from the ordinary judicatories of the 
 country. Thus, for example, the peers of England claim 
 to be judged by their peers. So, also, both in England 
 and on the continent, the pious fervour of a former age 
 bestowed on all ecclesiastics an exemption of their per- 
 sons and property from the control of the ordinary tri- 
 bunals of the country; and the emperor Theodosius ex- 
 tended this privilege to all persons attached to his private 
 domain, whether freeman, freedman or villain, and ordered 
 that in all matters, civil and criminal, in which they were 
 concerned, a special jurisdiction should be constituted, 
 entirely independent of the ordinary judges. The empe- 
 ror Constantine granted various immunities to the veterans, 
 and, among the rest, that they and their sons should be pri- 
 vileged to sue and be sued before the Praetorian Prsefect, 
 - and be in no way amenable to the inferior judges. So, 
 likewise, the emperor Leo ordained that all commanders of 
 the fortresses, and the generals and officers of the frontier
 
 Lect. VI.] ON NATURAL RIGHTS. 215 
 
 militia, should be subject to no other jurisdiction than that 
 of a certain dignitary of his imperial household. In like 
 manner, to come to our own time and country, the presi- 
 dent, vice-president, and all civil officers of the United 
 States, can be removed only by impeachment before the 
 senate; and ambassadors and consuls have, under our 
 constitution, the privilege of being amenable only to the 
 federal courts. In all these, and numerous other instan- 
 ces easily cited, the jurisdiction is said to be in perso- 
 nam. 
 
 But this expression, 'jurisdiction in personam,' has also 
 a distinct, and a more popular acceptation, in which sense 
 it is contrasted with the antagonist expression, 'jurisdic- 
 tion in rem.' By the former is simply meant, that the 
 actor or plaintiff is only entitled to call on the reus or de- 
 fendant to respond personally, in damages; and by the 
 latter, that the claim set up can be enforced against, and 
 satisfied out of property attached within the jurisdictional 
 limits of a particular tribunal. Thus, for example, a court 
 of admiralty will proceed in persona?7i to vindicate a 
 mere personal claim, arising either ex contractu, or ex de- 
 licto: but if there be any charge or lien on the defendant's 
 property, or if he cannot be found within the territory, 
 but his property is there, the court then proceeds in rem, 
 that is, against his property, as a means of compelling him 
 to respond to judicature. This distinction, however, re- 
 gards rather the process of the tribunal, than its jurisdic- 
 tion, for all proceedings in rem may be considered as 
 means to compel the judicial appearance of the defendant; 
 and though process in personam, and in rem, often issue 
 in the same cause, it is competent for the defendant to re- 
 move the attachment from the specific property, by other- 
 wise effectually securing to the actor the benefit of his 
 claim, in the event of its being established.
 
 216 EFFECTS OF GOVERNMENT [Lect. VI- 
 
 Thirdly. Jurisdiction in subjectam materiam. This 
 flows from the peculiar nature of the subject matter in 
 controversy, and is often referred to the compound consi- 
 deration of locality, person, and the nature of the grava- 
 men itself. Hence we find judicial power divided into 
 various classes; and tribunals are constituted to adjudicate 
 on matters referrible only to one or more of these classes. 
 In such case, the court is said to have jurisdiction hi sub- 
 jectam materiam. Under this view, the cardinal divi- 
 sion of jurisdiction is into civil and criminal; but there are 
 also many subordinate divisions; thus, we have natural, 
 maritime, military, ecclesiastical, equitable, fiscal, and 
 common law jurisdictions, and many others still more li- 
 mited. 
 
 So, likewise, courts may possess a general jurisdiction 
 in subjectam materiam, but a limited or personal one as 
 to the parties litigant; in which case, however, it would 
 be better to speak of the jurisdiction as in ■personam, 
 since the chief object of this three-fold division of juris- 
 diction is to give a distinctive name to each, as it flows 
 mainly from place, personal privilege, or the nature of the 
 controversy. Hence, though a general jurisdiction may 
 be exercised in locum, in personam, in subjectam ?na- 
 teriam, yet each should take its appropriate name, as it is 
 characterized by one or the other of the three enumerated, 
 sources of jurisdiction. So, again; though there are distinct 
 systems or codes of law usually applied to the various clas- 
 ses into which this last species of jurisdiction is divided, yet 
 the character and limits of each division are ascertained ra- 
 ther by the nature of the controversy than by the code of 
 laws by which a particular tribunal may profess to be main- 
 ly directed. So, also, in the exercise of all jurisdiction, 
 controversies are often affected by different systems of 
 law, varying according to circumstance: hence it is that the 
 student will often hear the expressions ( lex forif Hex loci
 
 I.ect. VI.] ON NATURAL RIGHTS. 217 
 
 contractus;' Hex loci rei acta?;' Hex loci rei sitae,' &c. 
 which simply mean that the cause in judicature must be 
 governed, according to circumstances, by the law of the 
 tribunal appealed to, or of the country where the contract 
 was made, or of that in which it is to be performed, or of 
 that where the res subject a is found. These topicks are 
 only briefly alluded to at this time, as coming within the 
 scope of my general design, which is to shadow forth the 
 elements and leading doctrines of the entire system of ju- 
 risprudence. But to proceed. 
 
 The student will find that jurisdiction has been generally 
 divided by the writers on natural and political law, into 
 two kinds, viz. that over persons, and that over things, 
 though the first may very properly include the latter; for 
 though the right to a thing be involved, still the contro- 
 versy touching the right, is between persons. This dis- 
 tinction of jurisdiction into two sorts is made in reference 
 to the sources whence society and government derive the 
 right to decide; for, as has been already stated, one case in 
 which persons are obliged to abide by the determination of 
 a community is, that the thing about which the controver- 
 sy arises, as, for example, land, is under the control of that 
 community, though the parties litigant, or one of them, 
 may be members of a different community. In this case, 
 then, it is manifest that the jurisdiction which is claimed 
 flows solely from the control which the community has 
 over the res subject a. So, likewise, jurisdiction may 
 arise over persons, either because they are members of the 
 community, or because they are temporarily in the coun- 
 try, in which latter case they owe a temporary allegiance, 
 and are bound to submit to its laws, and to the jurisdiction 
 of its courts. All jurisdiction however, as is well ob- 
 served by Grotius, is, in one sense, over persons, since it 
 consists in a right to determine controversies between two 
 or more persons, and ultimately to compel them to submit 
 28
 
 2 IS EFFECTS OF GOVERNMENT [Lect. VI. 
 
 to the determination, be it to do or forbear an act, or to 
 receive or abandon a thing. Thus, for example, if A at- 
 taches the goods of B, his absent debtor, or brings eject- 
 ment against land claimed by B, who is not a citizen, nor 
 resident within the community, and judgment, with execu- 
 tion, is had thereon, the jurisdiction which has been exer- 
 cised arises, it is true, from the fact that the goods or land 
 were within the court's jurisdiction; but still, as respects 
 the operation of that jurisdiction, it is also personal; for 
 it compels B, in the first instance, to appear and defend his 
 interests, or to be for ever bound by the decree or judg- 
 ment which is past; and the property is thereby fully 
 vested in A, the plaintiff. The foundation of all civil sub- 
 jection, or jurisdiction over persons, is laid, either imme- 
 diately or remotely, in such a civil union as places such 
 persons under the control and protection of the society. 
 We shall have occasion presently to consider the nature of 
 this power over persons; and even now it must appear to 
 the student sufficiently intelligible as to its origin and ge- 
 neral objects. But the jurisdiction claimed by govern- 
 ments over things, when this exercise of power is to af- 
 fect the rights of those who are not members of that com- 
 munity, is not quite so obvious. We shall therefore, at 
 this time, advert to the origin and nature of this species of 
 jurisdiction, and then recall your attention to that over 
 persons, with its various restrictions or limitations. 
 
 When a number of individuals have united themselves 
 into a community, and have settled on a tract of land, as, 
 for example, an island, or an uninhabited country, which 
 they take possession of, and claim by some natural or other 
 boundaries; such a people found their title in what is called 
 Occupancy in gross, which means that the right of property 
 has been vested in the whole body or community of men, 
 and that no individual has any property, or exclusive right. 
 The effect, then, of general occupancy being to vest in the
 
 Lect. VI.] ON NATURAL RIGHTS. 219 
 
 collective body a full property, it is thereby enabled to ex- 
 clude all other nations and individuals from any participa- 
 tion in this property, in the same manner as particular oc- 
 cupancy, on the other hand, vests a similar right in an in- 
 dividual to exclude all others from interfering with the par- 
 ticular parcel of land thus appropriated to himself. This 
 right of general property in a community has been de- 
 nominated sovereignty or jurisdiction, in order to distin- 
 guish it from the private right which the separate members 
 have in their respective shares, which is strictly called 
 property. Occupancy in gross acquires to the society, in 
 the very first instance, a general property; but after the 
 society has permitted individuals to appropriate to them- 
 selves particular parcels, either by occupancy, (which is 
 founded on the tacit or implied consent of the community,) 
 or by the express grant of that community, the society 
 then ceases to have property in such appropriated lands, 
 but retains over the whole, and their owners, a general or 
 publick right, called, as we have said, jurisdiction or sove- 
 reignty; and the country over which it is exercised is de- 
 nominated its territory. Two effects arise from this sove- 
 reignty. The first, which is immediate and necessary, is 
 that none who are not members of the body which acquired 
 the whole by general occupancy, and now exercises juris- 
 diction, are capable of having private property in such ter- 
 ritory; so that no member of the community can transfer 
 anv property in the soil to an alien, nor can an alien inherit 
 it; and both these disabilities remain forever, and under all 
 circumstances, unless the community sees fit to remove 
 them. The second effect to which we allude relates to 
 moveables, and is not the natural or immediate result of oc- 
 cupancy in gross, or of the sovereignty or jurisdiction 
 which remains after the establishment of individual pro- 
 perty, but is merely consequential, or rather accidental. 
 The effect we speak of is, that as an alien cannot, in virtue
 
 220 EFFECTS OF GOVERNMENT [Lect. VI. 
 
 of the first principle, even enter within the limits of such 
 territor) 7 , unless with the consent of the society, it follows 
 that he cannot come thither even to take away moveables, 
 over which the society never had any right of occupancy, 
 or jurisdiction, and which have been expressly relinquish- 
 ed by their owners in favour of such alien. Hence, under 
 the mere lex naturae, an alien can be neither grantee, devi- 
 see nor heir, either of land or of goods; not of the former, 
 because its proprietor received it subject to the transcen- 
 dental control of the community; not of the latter, be- 
 cause the grantee, legatee &c. cannot come into the terri- 
 tory to take them away, though in all other respects he 
 may have a right in them. With regard to moveables 
 therefore, if the laws of the country did not prohibit it, the 
 grantor or his executor &c. might transmit them to the 
 alien claimant, and no principle of natural jurisprudence 
 would interfere with the exercise of such a power. The 
 civil laws, however, of most communities have variously 
 legislated on this subject, as also in regard to landed or 
 immoveable estates; some of them taking away the natural 
 law impediment altogether, in regard to both land and 
 goods; whilst others have wholly inhibited aliens from en- 
 joying either, and have even forbidden the representatives 
 of deceased persons from transmitting to alien claimants 
 goods bequeathed to them, or which they claim in virtue of 
 relationship. 
 
 The laws as well as usages of most ancient and modern 
 nations gave to the national fisc all the moveables belong- 
 ing to foreigners who died within their dominions, leaving 
 no native heirs. This barbarous custom of confiscating 
 such property to the state, in exclusion of the moral claim 
 of the relations of such strangers, obtained among the 
 Greeks and Romans, and was much practised in modern 
 Europe until ve^ lately. So inveterate has been this 
 custom, particularly in France from its earliest history,
 
 Lect. VI.] ON NATURAL RIGHTS. 221 
 
 that although it was abolished in that country in 1791, by 
 the constituent assembly, yet when the laws came to be re- 
 vised and digested under the late emperor, the Droit 
 ITJlubaine was revived; and it has been retained ever 
 since, with the sole exception that this droit of the crown 
 shall not be enforced wherever the subjects of France are 
 secured against it by treaty in that country to which the 
 deceased alien belonged; but in the absence of treaty sti- 
 pulation, an alien is not permitted to bequeath property 
 situate in France, and it vests in the crown absolutely, as 
 in ordinary cases of escheat, caduca, or devolution to the 
 exchequer, propter defectum sungiimis. 
 
 The legality of this Droit D'Jlubaine has not been 
 denied by civilians and publicists, but it has been very ge- 
 nerally guarded against by reciprocal treaties; and, in some 
 instances, aliens have been permitted by treaty to enjoy 
 and transmit even lands to their heirs, whilst, in others, 
 they have this privilege granted to them by the express 
 laws of a country, which extend either to aliens generally, 
 under certain conditions however, or to particular aliens, 
 upon their special application for the privilege. 
 
 But to explain the theory of this doctrine a little fur- 
 ther. The student, on reflection, will perceive that this 
 territorial jurisdiction in the state or nation is a very dis- 
 tinct thing from a collection or congeries of rights in so 
 many individuals; for if I happen to occupy a tract of land 
 in company with other individuals who take tracts in a 
 like manner in my neighbourhood, though they be ever so 
 numerous, there would, in such a case, be nothing to pre- 
 vent my alienating my portion to whom I pleased. But 
 where a number of associated persons, however few, joint- 
 ly take possession of vacant lands, this bestows on that 
 collective body a joint and general property; and when 
 the individuals obtain separate portions, the collective body 
 still retains a right in such portions, so far, at least, as to
 
 222 EFFECTS OF GOVERNMENT [Lect. VI. 
 
 regulate their transmission; and, in the absence of positive 
 law, the lands would revert to the common stock on the death 
 of the owner, as some contend, but certainly on his death 
 without heirs who are members of the same political com- 
 munity. The collective body parted with their property 
 to individuals oia the implied terms of retaining a salutary 
 control; and in explaining the theory of sovereignty and 
 individual property, all jurists have agreed that the right 
 to exclude strangers from participating in the ownership of 
 lands, and even to forbid their entry within the territory 
 for any purpose whatever, is a power essential to the safe- 
 ty and well-being of every community, and must always 
 be regarded as impliedly reserved on the establishment of 
 every political association. The abstract right, then, can- 
 not be questioned; but the only modern nation of which 
 we have any knowledge, that has exercised this right to 
 an extent of nearly total exclusion, is China: her right to 
 do so has never given serious offence; it is based on prin- 
 ciples recognized by all nations, at all times, and rests on 
 the theory we have stated, viz. the acquisition of her terri- 
 tory by occupancy in gross, or some other equivalent 
 means, as conquest, if indeed this be a fully recognized 
 means of acquiring a plenary title to territory and juris- 
 diction. You now perceive how it is, that this collective 
 right in the abstract person of a community implies three 
 species of jurisdiction; first, over things, viz. the lands 
 taken possession of; secondly, over the persons taking pos- 
 session of specified portions of land; and thirdly, over 
 strangers whilst resident within the territorial limits of a 
 country. You likewise see how jurisdiction, being exer- 
 cised over land, involves and influences incidentally the 
 claim of strangers, even to moveables on such land.
 
 Lect. VI.] ON NATURAL RIGHTS. 223 
 
 (2.) Men are not The jurisdiction or sovereignty of a 
 
 reduced to a state of state may . exhibit itself in various forms, 
 
 nature by a dissolu- m ... 
 
 tion of the govern- ana " De exercised by various ministers. 
 
 ment - One man or many may exert it over the 
 
 rest, and over the territory which they inhabit. It seems, 
 then, to follow from this circumstance, and from the re- 
 marks just made on the nature of jurisdiction, that the 
 change or dissolution of a government does not destroy 
 this sovereignty, and thereby reduce the members of the 
 community to a state of nature. Hence, though the depo- 
 sitory of its jurisdiction may be changed, the power itself 
 resides in the nation at large: the taking of the sovereignty 
 out of the hands of any particular person or persons, and 
 even an utter uncertainty where particularly to place it, can 
 have no other effect than to reduce the community to that 
 situation in which it was before the jurisdiction was placed 
 in special hands. For to the formation of a government 
 two circumstances are requisite; first, that a body of men 
 shall unite to form a political society; and secondly, that 
 they shall have determined in what form it shall be ruled: 
 hence the social compact, and the constitutional compact 
 are two very distinct things. It appears, then, to be ob- 
 vious that the dissolution of the government, which is the 
 constitutional compact, cannot reduce the members to a 
 state of nature, but merely to a state of social and civil 
 union; in which case the sovereignty has reverted to that 
 abstract entity called the state or nation. When an event 
 of this kind happens therefore, as it did in Rome, on the 
 expulsion of Tarquin; in England, on the decapitation of 
 Charles; in France, when they executed their king, and 
 dissolved the government; and in the United States, when 
 we absolved ourselves from all allegiance to the British 
 throne and nation, and declared ourselves independent: in 
 all these cases, I say, the members of those states were, in- 
 deed, no longer subject to the entire code regulating the
 
 224 EFFECTS OF GOVERNMENT [Lect. VI. 
 
 political state, or form of government. Still they were 
 not without law, but remained under the general obliga- 
 tions resulting from the nature, ends and necessities of 
 civil society; and likewise subject to all the civil and cri- 
 minal laws which were not necessarily involved in the 
 downfall of the political state. In every case where such 
 a dissolution occurs, the jurisdiction over the citizens at 
 most results back to the source whence it came, and the 
 collective body may either adopt a new and different con- 
 stitution, or dissolve even the social compact also. In 
 such a case only would they be reduced to the supposed 
 primeval state of man, and could then emerge from this 
 state of nature only by uniting themselves to other com- 
 munities, or by forming themselves into a new society, 
 either primary or civil. Vou perceive, then, not only 
 that a dissolution of the government leaves its members 
 in a state of civil union, but that all the municipal or civil 
 law > of that society remain in full operation, as far as they 
 do not relate to the mere political state, which it was the 
 design of the revolution to change. And though these 
 civil laws may have emanated from a particular form of 
 government, and from a policy somewhat peculiar to such 
 a form, the abolition of that form does not per se imply a 
 repeal of those laws. The ultimate sovereignty of all so- 
 cieties must reside in the people. The constitutional com- 
 pact, or form of government, originated from them, with 
 full powers in certain functionaries to enact, from time to 
 time, such laws as should be deemed expedient. Now, if 
 the people see fit to abolish the constitution, the laws 
 which have been established by that government, having 
 been virtually sanctioned by the people, are not annulled 
 by the mere abolition of the government by which they 
 were expressly enacted. All laws therefore, whether 
 they concern things mala in se, or mala prohibila, re- 
 main in full force, and their violation would be punished
 
 Lect. VI.] ON NATURAL RIGHTS. 225 
 
 according to such forms and by such functionaries as re- 
 mained, or by such as should be subsequently provided. 
 A mere declaration by the people, that a monarchy or an 
 aristocracy, for example, should no longer exist, but that 
 all such delegated powers should revert to the people, 
 would neither abolish existing civil laws, nor deprive the 
 judiciary, and various other depositories of power, of their 
 right, nor lessen their duty, to vindicate the laws. If the 
 people indeed, by a proper declaration of their wishes, 
 were expressly to abolish the whole, there can be no ques- 
 tion but that the whole political fabrick would be dis- 
 solved, and every individual would be placed in a mere 
 state of nature, or, at most, of primary society. 
 
 Revolutions, under any system of melioration, are suffi- 
 ciently pregnant with evils, without those direful conse- 
 quences which would necessarily result from the doctrine 
 we have impugned. We presume, therefore, that publick 
 policy, and the implied wishes of the people would sanc- 
 tion the opinion, that all revolutions which do not express- 
 ly declare by the voice of the people, that all powers, of 
 every kind, should revert to them, and that all laws should 
 be abolished, could have but the effect to revoke those poli- 
 tical powers which it appeared to have been the manifest 
 design of the people to abolish, and to leave all other 
 powers and laws in operation, so far as they can con- 
 sistently operate, after the constitution or political state is 
 annulled. We have dwelt the more on this point because, 
 obvious as it certainly is, it has not been always practically 
 regarded, as the history of revolutions abundantly proves. 
 In revolutionary times, when the passions are excited, 
 there are men, and philosophers too, who boldly maintain 
 that revolution implies a dissolution of all compacts, go- 
 vernment and laws; that the people, in their majesty, are 
 once more placed in a state of natural equality; and that all 
 responsibility, except to God, or to the people as in a 
 29
 
 23 5 EFFECTS OF GOVERNMENT [Lect. VI. 
 
 state of nature, has terminated. In a country like ours, 
 whose constitution and laws so manifestly originate from 
 the people, and where the relations between that people 
 and their functionaries are so clearly denned, we have lit- 
 tle to apprehend from revolutions, should they occur; and 
 still less from such dangerous and disorganizing teneis as 
 have sometimes disgraced revolutions in other countries. 
 It was nevertheless proper that the salutary doctrine of 
 this subject should be clearly inculcated. 
 (3.) Of the effects I now proceed to a consideration of 
 
 of civil union on the the cnanees pro duced bv civil union on 
 risrht of Personal Se- 
 curity, certain rights of individuals; and first, 
 
 as concerns the right of Personal Security. 
 
 We may remember that, in the state of nature, each man 
 is the defender of his own rights, and the avenger of bis 
 own wrongs. This freedom is matcri illy and, we think, 
 immediately restricted by the very act of civil union. We 
 propose to bestow a few thoughts on the origin, foundation 
 and extent of this restriction. 
 
 Individuals of a community being precluded from the 
 exercise of their own discretion and their own force in 
 preventing or avenging an injury, and being obliged to 
 apply to the society, or its constituted organ, the magis- 
 trate, to exercise its judgment and force, let us see how 
 they lose the first right, on the one hand, and the terms on 
 which they acquire the second, on the other. 
 
 By the act of civil union men do not explicitly renounce 
 and transfer their right of defence or redress; for by this 
 compact they only bind themselves to act with the joint 
 force, and to acquiesce in the rules prescribed by the com- 
 mon understanding. Whatever, therefore, may be im- 
 plied from this compact* there is here no. express renuiu i- 
 ation and transfer. So, too, though laws may directly take 
 away this right, the inquiry goes further, viz. whether it is 
 not impliedly restrained by the act of civil union, without
 
 Lect. VI.] ON NATURAL RIGHTS. 227 
 
 the aid of express legislation; and common opinion seems 
 to answer the question in the affirmative. The point 
 itself may at first appear scarce worthy of examination, 
 since a necessarily implied abandonment is quite equivalent 
 to an express one, and, even if not so implied, express le- 
 gislation would be certain to follow very soon after the so- 
 cial compact. The question, however, has been started, 
 and jurists have esteemed it of sufficient value, not only to 
 be argued, but to take sides on; and it is proper that stu- 
 dents should know, not only the settled laws and conceded 
 opinions respecting all legal subjects, but the reasons on 
 which they are based, the conflicts they have had to encoun- 
 ter, and the views, however eccentric, which have been en- 
 tertained on these subjects, before the true doctrine in re- 
 gard to them came to be fully settled. For this kind of am- 
 ple exposition, I must refer the student to his library gene- 
 rally. As to this particular point, however, I shall very 
 briefly examine it. 
 
 It may be argued that, although each individual is enti- 
 tled to the joint force of the community for his defence, 
 it is no reason why he should not also be permitted to ex- 
 ercise his own, as far as it goes; that there is no direct in- 
 consistency between the two; and that his having the one 
 right, does not of itself take away from him the other. 
 It may be further stated, that the question is not solved by 
 reference to the constitutional compact, which follows 
 the first or social compact, even if the former should de- 
 clare expressly on the subject; for the inquiry simply is, 
 whether the mere act of civil union, (by which can be 
 meant only the social compact) takes from the members of 
 that society all right of self-redress. And in regard to 
 this second act, it is either a civil law or a compact If it 
 be a civil law, and is silent on the subject, the question still 
 is as to its extent in impliedly excluding private defence; 
 and if it be a compact, the same point occurs, viz. whether
 
 228 EFFECTS OF GOVERNMENT [Lect. VI. 
 
 the appointment of magistrates necessarily excludes all pri- 
 vate defence and punishment. But hesides that the acqui- 
 sition of a new right to defence by the community, does 
 not seem necessarily to destroy the old one, it may further 
 be contended, that the magistrate is bat the delegate of the 
 society, and that the power committed to him would be 
 only co-extensive with that which resides in the collective 
 body; and that if this latter power be not inconsistent 
 with the right of private defence, the authority of the 
 magistrate cannot be. In reply to all this it may be ob- 
 served, that there is an obvious reason why the society 
 must necessarily interpose to prevent the use of any pri- 
 vate force, if that of the community be attainable either 
 before or after an injury. The society has laid itself un- 
 der an obligation, by the very nature and object of civil 
 union, to protect every individual member of the commu- 
 nity; and how it is that because the society is obliged to 
 exert the common force for the safety of each, the indivi- 
 dual ability of each to secure himself is thereby restrain- 
 ed, will appear if we examine a little closer into the pre- 
 cise nature and direct object of the civil union. A com- 
 munity is, indeed, stronger than each of its members; but 
 this of itself is no reason why each should not resort to 
 his own strength; it would be a restraint rather in fact 
 than of right. If, therefore, we consider merely separate- 
 ly an individual's right, and the community's obligation, 
 we shall not arrive at the true reason of the necessary 
 abridgment of private defence and redress, as impliedly 
 consequent on the very act of civil union. We think, 
 then, that an individual is understood to part with his 
 right of private defence &c. by the very act of civil 
 union, not merely because this act places him under the 
 protection of the society, but mainly because the society 
 is also under a like engagement to protect all others, and 
 consequently the society cannot make any engagement to
 
 Lect. VI.] ON NATURAL RIGHTS. 22$ 
 
 the one, without reference to its obligations to the other: 
 and this duty of the state would be necessarily interfered 
 with, if the right of defence and of punishment were in any 
 degree participated in by the injured individual. The indi- 
 vidual's own act, indeed, by which he became a member of 
 the community, made him a party to the state's engage- 
 ment, and he thereby incurs an obligation to abstain from 
 all defence, revenge or punishment, and to look solely to 
 the state. It is very true that it is immaterial to an indi- 
 vidual what engagements the state, apart from himself, 
 might have contracted; but if we find in that very com- 
 pact which binds the state to him, an engagement on his 
 own part, in the society's compact with others, it furnishes 
 a solution to the question; and that this is the case cannot 
 be questioned. The act of civil union clearly implies that 
 each individual takes from the society, in return for what 
 he gives it, only what the society has it in its power to 
 grant. He consents to take the publick protection with 
 the limitation springing from the society's obligation to 
 others; and as that obligation is, to guard the rights of all 
 from the possibility of invasion by any, he, as a member of 
 that society, is a party bound, and therefore cannot be a 
 judge in his own cause. 
 
 Such being the origin of civil jurisdiction, and the 
 true reason of vesting in the state alone the right and duty 
 of protecting our personal security, our next inquiry is 
 whether, and under what circumstances, this jurisdiction 
 ever ceases, either in factor in right, so as to place an indi- 
 vidual, pro hue vice, in a state of nature. Jurisdiction is 
 said to cease in fact, whenever the threatened injury is so 
 immediate that we cannot possibly be defended at all un- 
 less we resort to our own private force; and it is said to 
 cease in right, when members of the same, or of different 
 societies, out of the territory of any society, come into 
 conflict, to the injury of the one party. In this case it is 

 
 230 EFFECTS OF GOVERNMENT [Lect. VI 
 
 immaterial how immediate or how remote; how great or 
 how small, the threatened injury is, since the parties are 
 now actually in a stale of nature, amenable to no law ex- 
 cept that of God and of conscience. When the parties re- 
 turn to a state of society, whether the jurisdiction ceased 
 in fact only, or in right, their responsibility again becomes 
 the same as if the jurisdiction had never ceased. This 
 may be stated as a general rule; but perhaps there may be 
 exceptions. 
 
 It is not, however, every immediate injury, or threat of 
 injury, which will justify the right of self-defence in its 
 full extent, when the individuals are living under the same 
 jurisdiction: for an injury, though immediate and certain, 
 may be too small to justify the taking of life, or even the 
 doing of any grievous harjtn to prevent it. Lesser injuries 
 in society may commonly be adequately repaired after they 
 are inflicted; and when they are of such a character that 
 amends may be made, the principle on which jurisdiction is 
 said to cease in fact, does not obtain. The loss of life or of 
 chastity, for example, is irreparable, and if the individual, 
 when assailed, might not defend himself or herself by all 
 necessary means, at the very time, the party threatened 
 might never be compensated. In such cases, therefore, 
 the law imposes no restriction whatever; the parties are 
 wholly in a state of nature; and the injured one is entitled 
 to ward off the impending calamity by any means which 
 may be called for by the occasion. 
 
 There are also some cases where injuries of a much 
 lower sort may accidentally be irreparable; as, for exam- 
 ple, where the plunderer of our goods is unknown, or 
 where there is a moral certainty that the society can never 
 interpose for their restitution. In such cases there can be 
 no doubt that great lengths may be resorted to for their 
 preservation, without subjecting us to the imputation of 
 criminally assuming the state's prerogative, or of violating
 
 Led. VI.] ON NATURAL RIGHTS. 231 
 
 the greater rights of others in defending our own, which 
 may he of less consequence. 
 
 It. would lead to much detail and subtile inquiry, were 
 we to examine into the probable law that might affect the 
 numerous cases where jurisdiction may be supposed to 
 cease in fact; as, for example, during civil war and rebel- 
 lion; or where the magistrate cannot be found; or where 
 he refuses his aid; though as to this last it may be observed, 
 that when this happens, it must rather be supposed that 
 the society has judged the application unfounded, and 
 therefore that an individual thus situate might be bound to 
 submit, whatever might be his right. But there are cases, 
 no doubt, where an individual would be justified in redres- 
 sing his own wrongs, where a corrupt or ignorant magis- 
 trate manifestly disregarded his unequivocal right. 
 
 As respects the rights of individuals where jurisdiction 
 ceases in right, cases ot great difficulty might easily be 
 mentioned, each dependant on principles which, at this 
 time, it would be premature to discuss. In this case it is 
 to be remarked that the jurisdiction ceases, not from any 
 partial or temporary insufficiency in> the society or its func- 
 tionaries to do justice, but from its having no jurisdiction 
 at all, as in the case of individuals from different states 
 meeting in unoccupied countries, or at sea; and therefore 
 the extent to which the private right may be exercised, 
 and how their rights are affected on their return to society, 
 present questions of some nicety, not easily definable, and 
 on which it is not well to speak positively in such elemen- 
 tary prelections as the present. Thus, to give some idea 
 of the nature of these questions, the individuals, placed 
 perhaps on some loneiy island, out of the jurisdiction of 
 any country, may have been subjects of the same state, or of 
 different states; the act committed may be malum in se, 
 or malum prohibitum, in one only, or in both of the 
 states to which they belong; if illegal in both, the penal- 
 
 -4-
 
 232 EFFECTS OF GOVERNMENT |_Lect. VI. 
 
 ties may be different. So, on the other hand, the act done, 
 whether a wrong or a contract, may raise a civil obligation 
 in the country of both parties, or in that of one of them 
 only, or in that of neither, but still in some other country. 
 So, also, the contract may be entirely silent as to the place of 
 its contemplated performance; or its executiun may have 
 been designed in the country where made, but where there 
 was no law to enforce it. In all these, and numerous like 
 cases, the rights of the parties, whilst in a state of nature, 
 and after their return to society, might be varied by those 
 different circumstances, which, however, would require 
 more detailed explanation than can now be indulged in. 
 
 In the foregoing observations I have blended the consi- 
 deration of defence and of reparation. But it is proper to 
 state that the right of reparation cannot, like the right of 
 defence, be supposed in any case to exist only for the pre- 
 sent instant: it must cease either indefinitely, and of right, 
 or not at all. When an injury is coming on a man, he 
 may be under the necessity of defending himself, or of not 
 being defended at all; but it seldom happens that he is dri- 
 ven to this dilemma in obtaining leparation for an injury; 
 for though defence might be useless, did it not come at the 
 moment, yet reparation may often prove as adequate at one 
 time as at another. This is true, in some degree, even in 
 the case supposed by Grotius, of a man removing out of 
 the territory of that society whose members he has injured; 
 where, if they do not then stop him or his goods, it may 
 be impossible for the society afterwards to have him under 
 control, so as to compel him to render justice. In such a 
 case, although the injured person might be justified in 
 stopping the person or goods, and perhaps both, yet he 
 would have no right to appropriate such goods, as he 
 would, did the jurisdiction cease in the full extent. In 
 fact it only ceases, if at all, so far as to give him a right to 
 stop the goods and person, but not so as to vest in him the
 
 Lect. VI.] ON NATURAL RIGHTS. 233 
 
 property, in satisfaction of his claim, this being a matter 
 which must be adjudicated between the parties by the ma- 
 gistrate. This, we presume, is the sound doctrine where the 
 laws of a society are silent on the subject As to an indi- 
 vidual's right to reparation, the jurisdiction may cease in 
 fact only so far as to justify his stopping the offender or 
 his goods, but not so as to enable him to satisfy his own 
 demand at once, since an immediate adjustment and satis- 
 faction of the claim are not material, and may well be left 
 to the future decision of the constituted tribunals of the 
 country. But here a question of some delicacy may arise. 
 Suppose the laws of the country have expressly legislated 
 as to the mode of proceeding where the debtor or offender 
 is about to abscond with his property; or, having abscond- 
 ed, his agent is in the act of removing it extra jurisdic- 
 tionem Suppose the right to stop the goods is itself 
 regulated by law, but the offender or his agent is removing 
 them on Sunday, when no process can be obtained; or, 
 rather, suppose the property is in transitu, and there is 
 no time left to obtain the process. Will not the natural 
 law right of stoppage revive, and does not the jurisdiction 
 cease in fact? We presume that it does; for the statutory 
 enactment could not have intended to abrogate the natural 
 right except where an equivalent means is secured to the 
 injured party; it only aimed at regulating the right in all 
 cases where the exigency was not so urgent as to require 
 an instant interference. If, therefore, an individual so 
 circumstanced were to seize the goods, and detain them 
 without any legal process, such a seizure would be no 
 trespass, and would be legally valid perhaps as to every 
 consequence: for suppose the goods, when safely deposit- 
 ed, should be consumed by fire, before any legal process 
 could be procured; the loss, I apprehend, would fall whol- 
 ly on the offender or debtor. But suppose another cre- 
 ditor should ooiain legal process, and attach the goods in 
 30
 
 234 EFFECTS OF GOVERNMENT [Lect. VI - 
 
 the hands of that o editor who seized them in the manner 
 we have stated: would this wholly supersede the right of 
 such creditor? I should think not, provided he also had 
 obtained legal process at as early a moment as was practi- 
 cable after bis seizure; or if this creditor were in any way 
 misled, or prevented from obtaining process by the act of 
 the attaching creditor. There can he no doubt that in the 
 supposed case, of a necessary seizure without process, the 
 party should obtain process as soon as possible, if he would 
 avoid the consequences of interfering illegally with ano- 
 ther's property. Should he neglect this, he might become 
 a trespasser, and might be held liable to loss by lire, or 
 the loss of profit on a contemplated sale, and perhaps to 
 any other supervenient loss. 
 
 Under the strict notions of the common law of England, 
 some of the foregoing doctrines would perhaps be regard- 
 ed as wholly inadmissible; for it must be allowed that the 
 genius of that system is too often averse to the mitigating 
 equities of that secondary law of nature which is the soul 
 and excellence of some other codes. Where that com- 
 men law is silent, the voice of simple justice is scarce al- 
 lowed, for that reason, to be heard in our courts; whilst, 
 on the other hand, it is often wholly suppressed when the 
 law has spoken, though in terms ever so doubtful or inade- 
 quate. But under the more liberal spirit of the general 
 municipal law of most other countries, the views we have 
 ventured, to intimate might be sanctioned. There is a 
 plastic disposition in their laws, which accommodates itself 
 to the exigency of occasions. The purer waters of natural 
 justice happily blend with those which flow in the more 
 formal and artificial streams of positive law. If it be ad- 
 mitted that, in a country of laws, jurisdiction may cease 
 in fact, so as to justify self-defence, there appears to be 
 no manifest reason why it may not equally cease for the 
 protection of property, or the enforcement of a claim, so
 
 Lect. VI.] ON NATURAL RIGHTS. 235 
 
 far as to authorize the stoppage of the goods of an offend- 
 er whilst in transitu, or the debtor himself, if in \\\<> act 
 of absconding. If positive law is silent, and has not given 
 the right, nor taken it away, the power would seem to ex- 
 ist under the secondary law of nature. If this he so, the 
 case would not be varied where the law has authorized the 
 arrest of such property. The particular law must in- 
 deed be followed, where the premises on which it can 
 operate obtain; but if the law be not exclusive, if it has 
 not manifestly abrogated the natural right, then the credit- 
 or or injured person may resort to it whenever the law 
 cannot be resorted to, for jurisdiction has then cease. 1 , in 
 fact. Still, as we have already remarked, the laws of 
 England are probably too jealous to admit of these liberal 
 views of general jurisprudence. When those laws have 
 failed to provide a remedy, the genius of that system 
 would seem to sustain the presumption that none was de- 
 signed; and when a remedy has been provided, though in- 
 suflicient to meet all cases, the very fact of legislation is 
 often regarded as necessarily restricting persons exclusive- 
 ly to that remedy. It is thus that, under the auspices of 
 this Procrustean principle, many of the genial equities 
 which find their way into other systems, are often wholly 
 excluded from the scheme of English jurisprudence. 
 
 (4.) Of the effects A right no less valuable to man than 
 of civil union on the th(J r ; ght of personal security, is that of 
 right to the fruits of 
 menial and bodily private property. One of the primary 
 
 exertion. ends of society and government is the 
 
 security and vindication of this right. The results ol our 
 mental and bodily toil constitute the meais of our subsis- 
 tence, and most of the comforts and luxuries of lile. in- 
 security in such valuable possessions as these, would not 
 only lessen the ardour of exertion, but diminish the en- 
 joyment of them when obtained. The rude tent reared 
 by our hands; the implements made for the procurement
 
 236 EFFECTS OF GOVERNMENT [Lect. VI. 
 
 and preparation of our food; the weapons contrived with 
 much toil and skill for our defence; would be of little value 
 if our only security rested on the honesty of our fellow 
 men, or on our own means of guarding them. If our sim- 
 ple wants in a state of nature demand the recognition of 
 the right of property, man in society has much greater 
 need of it; and it is still more essential that this right be 
 cautiously guarded, and firmly secured. The institution 
 of property, in a very limited degree, was no doubt ante- 
 rior to that of political government: but one of the pecu- 
 liar excellencies of this government is, that under it men 
 are regularly disciplined in the acquisition of all the means 
 of comfortable maintenance, and the fruits of their mental 
 and bodily toils are secured to them. Man is not only per- 
 mitted, in civil society, to enjoy in peace and safety what 
 would be sufficient for the supply of all reasonable wants, 
 but he may amass and treasure up immense wealth, or ex- 
 pend it at pleasure by placing around him all that may 
 gratify the eye and ear, or minister to the enjoyment of 
 every sense. He may create a fairy region, where every 
 breeze diffuses a thousand perfumes, and every vista is 
 crowded with the beauties of nature and art; and all this 
 may be done in conscious and actual security, if not against 
 the envy of others, at least against their violence. Not 
 so in a state of mere primary society. There, indeed, the 
 food and miserable habitation of man may be partially re- 
 spected; but it is in political society alone that we find se- 
 cured to us all that adorns life, and renders it truly desira- 
 ble. In policed society, not only the fruits of our mani- 
 pulations and bodily exertions are respected as property, 
 but also the productions of the mind. Were not this the 
 case, the sciences, which minister so largely to the arts, 
 would have remained comparatively stationary; whilst the 
 arts themselves must have continued extremely crude, and 
 industry have been satisfied with supplying little beyond
 
 ■Lect. VI.) ON NATURAL BIGHTS. 237 
 
 the necessary wants of man. But how great is that sti nu- 
 lus to exertion, which is given to the pure intelligence of 
 our species by the consciousness that intellectual toils shall 
 result in positive and secured benefits! The mere pleasure 
 of doing good to others by enlarging the bounds of know- 
 ledge, and the more powerful motive of ambition or fame, 
 could never have advanced knowledge to its present won- 
 derful extent, had not the selfish consideration of property 
 in the fruits of mental exertion, been added to them. 
 Hence is it that, under the most enlightened governments, 
 literary property is protected by express legislation. It 
 is respected and firmly guarded during the period to which 
 it has been deemed politic to limit its continuance; for 
 this species of property, for reasons peculiar to itself, is not 
 allowed to endure in the author or inventor forever, as is 
 the case with all other property. Authors and inventors 
 have in their respective works a right of property, since 
 they can neither be used nor published, nor in any manner 
 availed of by others, without their permission. An author, 
 inventor or discoverer is under no obligation to publish to 
 the world the fruit of his intellectual exertions: he has a 
 property in his ideas and principles, or the manner in 
 which they are combined and applied, and any one is ame- 
 nable who invades such a right; as much so as if he infracts 
 the right to external and visible property. If an author or 
 inventor has not published his book or invention, but it is 
 taken from him, and disclosed to the world, the wrongdoer 
 would be responsible in damages, not merely to the ex- 
 tent of the value of the paper and ink, or of the materials ex- 
 pended in illustrating an invention, but for the value of the 
 combination aud application of ideas and principles, as far 
 as such value could be estimated. When, however, an au- 
 tluor or inventor has himself published the results of his 
 mental toils, they beceme subject to the common and free 
 use of the whole world. But as literary property, when
 
 238 EFFECTS OF GOVERNMENT [Lect. VI. 
 
 kept to the sole use of the author, is often of little value to 
 him, and of still less when published to the world, where- 
 by all possess in it an equal advantage, it has been the po- 
 licy of most governments to stimulate the ardour of lite- 
 rary exertion, by securing a property to authors &c. for a 
 limited time after they have published their works, disco- 
 veries and inventions. Something of this kind has been 
 clone in most countries; but it must be admitted, and with 
 regret, that governments have often either gone beyond, 
 or fallen short of the true principle which ought to sustain 
 this species of property. The Roman law, in one of its 
 enactments, strongly manifests its respect for the labours 
 of the mind. If works of genius or invention happened 
 to be bestowed on the materials of another, as, for exam- 
 ple, if a painter had drawn on another's canvass, that law 
 gave the canvass to the painter, and not the delineation of 
 genius to the owner of a worthless tablet. But some au- 
 thors accuse the imperial law of a great departure from its 
 own principles, in giving to the owner of parchment what- 
 ever may have been written on it by another. It is pro- 
 bable, however, that its consistency may be vindicated by 
 distinguishing between the mere mechanical operation of 
 writing, and that of originally composing on the parchment 
 of another. The Roman law certainly did give to the 
 owner of the materials, that which was copied or mechani- 
 cally written on them; but it is not so clear that an oration 
 or poem, composed on the papyrus &c. of another, belong- 
 ed to the owner of the materials. If this were the case, 
 it would certainly be at variance with the principle which 
 gave the canvass to the painter; and that principle is (as 
 stated by the Institutes) that the labour, not being a mere 
 manipulation, hut one in which the mind has generated 
 something, is entitled to merge the claim of the owner to 
 the inconsiderable materials employed in calling it into 
 visible existence.
 
 Lect. VI.] ON NATURAL RIGHTS. 239 
 
 (5.) Effects of ci- In a state of P«m?ry society, a good 
 vi) uaion on the right name was no doubt of great value to its 
 to Reputation. . . ... 
 
 possessor, as it was the principal source 
 
 of his subsistence, and the only means of maintaining an 
 intercourse with his fellow men. None are more tenacious 
 of reputation than those rude tribes of Asia and America, 
 whose simple intercourse requires honesty and good faith 
 towards each other, without which their little possessions 
 would be of no value whatever. 
 
 Civil societies have also recognized reputation as a valua- 
 ble right, worthy of being guarded by express laws. 
 Hence the codes of various nations contain enactments of 
 the severest kind against defamation. The Roman law at 
 one time punished the libeller with death; and the empe- 
 ror Valentinian made it a capital offence even to omit des- 
 troying libellous productions, which imputed any capital 
 offence to the person libelled. The emperor Augustus 
 ranked libelling with high treason, and this was continued 
 by Tiberius and Sylla, in the case even of private calum- 
 ny. But as in the time of the republic the crime against 
 majesty was restricted to such acts only as really affected 
 the sovereignty, this severe extension of the penalties 
 against defamation was abandoned by Titus and Vespasian, 
 and the punishment of libellers and slanderers came to be 
 regulated by defined laws, and more sound principles, as 
 we find in the celebrated Constitutions of Constantine, in 
 the Theodosian code, entitled De Fumosis Libellis. These 
 last are the basis of the common law of England on this 
 subject, as will be found on examining the judicial decisions 
 under the head of Actions of Slander, reported by Lord 
 Coke in the fourth book of his Reports; as also in the nu- 
 merous Star Chamber cases on this law, which defined 
 most of the principles to which the English and American 
 courts resort at the present day
 
 240 EFFECTS OF GOVERNMENT [Lect. VI". 
 
 That reputation should be regarded as a natural and per- 
 fect ri<Wit, of great value, and well entitled to the special 
 protection of the laws, appears to have been acknowledged 
 by nearly all nations, and in every age. It is said that by 
 a law of the Lydians, slanderers were to be blooded in the 
 tongue, and the applauders and listeners, in the ear. So- 
 lon, having regard to public decorum, and the peace of fa- 
 milies, made it penal to slander even the dead; and the 
 polite Athenians, who respected oratory perhaps as much 
 as any people who ever existed, would not permit their 
 publick speakers to indulge in opprobious language. If 
 the anecdote recorded by Plutarch of the sculptor Phidias, 
 be true, even artists were to be on their guard how they 
 delineated what they conceived to be the historical events 
 of their country: for that sculptor was prosecuted for a li- 
 bel, for representing on the shield of Minerva, circumstances 
 which brought into doubt the early history of Athens, and 
 of its great founder Theseus. 
 
 We find, likewise, in the laws of most countries, a dis- 
 tinction taken between verbal and written slander; also, be- 
 tween the slander of those who are in power, and of such 
 as are mere private individuals. We find, too, that the truth 
 of the matter imputed did not always excuse the person 
 who uttered it; as, for example, where it related to some 
 bodily or natural infirmity, or to some crime or offence 
 which had either been pardoned or satisfied; or, as among 
 the Athenians, where the defamation related to a person's 
 trade. In some countries, also, the truth of the accusation 
 is no ground for the avoidance of a publick prosecution, 
 as the principle which sustains such an interference of the 
 publick, is that it is conducted, not on behalf of the person 
 accused, but merely for the prevention of such open and 
 notorious imputations as must necessarily tend to excite 
 the party accused to revenge, and thereby injure the peace 
 of society: for as the truth of the accusation would rather
 
 Lect. VI.] ON NATURAL RIGHTS. 241 
 
 aggravate than lessen the desire of revenue, the offender, 
 has transgressed against the publick peace, though he may- 
 have done no injustice to the individual impugned. 
 
 Reputation may be injured in three ways; first, by defa- 
 matory words, usually called slander or scandal, which the 
 laws of most societies regard as a mere private injury, 
 for which the party has redress by an action for the reco- 
 very of damages. Secondly, by libel, or defamatory pub- 
 lications in writing or print, or by signs and pictures, 
 which is generally regarded as an offence against the pub- 
 lick, as well as the individual, and is redressed by a publick 
 prosecution at the suit of the state, and a private aciion by 
 the person libelled. Thirdly, by malicious prosecution, 
 which, in like manner, may be the subject of both publick 
 and private redress. 
 
 Thus are the natural rights of man extended, denned, 
 guarded and vindicated in civil society, in the three points 
 we have commented on, viz. 1. Exemption from per- 
 sonal injury; 2. The protection of private property; and 
 3. The preservation of reputation. We are now to consi- 
 der the fourth main object of the civil union, viz. the secu- 
 rity of personal liberty. 
 
 (6.) Effects of civil The Personal Liberty possessed by man 
 
 union on the right to in a state of nature, or of primary socie- 
 
 er j. ^ j g a j sQ cons ; t j eia |,]y piodified by the 
 
 act of political association. These changes will sufficient- 
 ly appear when we examine the distinctions made in the 
 books between natural, social, civil, political and relative 
 liberty. We propose to give a short explanation of each 
 of these terms. 
 
 1. Natural Liberty. This, as the phrase expresses, 
 is that which we enjoy in a staie of nature. You ma 
 member that in a former lecture we spoke also of savage 
 liberty, if, indeed, it be proper to use a phrase which im- 
 plies moral rules, to express a state which sets them all at 
 31
 
 240 EFFECTS OF GOVERNMENT [Lect. VI, 
 
 defiance. It sufficiently expresses, however, the idea we 
 mean to convey, viz. the physical power of doing; what we 
 like, regardless of all obligation whatever. It is perhaps 
 unnecessary to say that there cannot be supposed to exist a 
 moral power to acl in such a way, though it has been urged 
 by some, that as God has interposed only prospective pun- 
 ishment in most of these cases, the agent is under no actual 
 restraint from doing the evil, if he will encounter the pun- 
 ishment. I might involve you in much intricate metaphy- 
 sicks by pursuing this point; but to little, and perhaps no 
 advantage: we may therefore dismiss it by merely obser- 
 ving, that savage differs from natural liberty in this, that the 
 last gives us the power to do such things only as are consistent 
 with the law of right reason. A man, consequently, is in 
 the complete possession of his natural liberty, who is under 
 no otber restraint than what his conscience and reason dic- 
 tate to him as the precepts of the law of nature. He is 
 under no engagements to any community or individuals, 
 nor has he connected himself with any civil society: he is 
 therefore independent of all obligations, except those which 
 his nature, or divine positive law has revealed to him. But 
 as soon as man enters into any association with his fellows, 
 he must part with a portion of his rights; for hardly any 
 combination, for any purpose whatever, can be conceived, 
 which does not require some sacrifice of individual will; 
 and, indeed, this is necessarily tbe case in all associations, 
 unless it be a rule of the body, that nothing shall be trans- 
 acted unless by the unanimous consent of its members. 
 The end, therefore, of any union that would probably take 
 place in a state of nature, or of primary society, cannot be 
 accomplished without an abridgment of individual liberty, 
 exactly as far as may be requisite to insure the end. Na- 
 tural liberty is justly esteemed the greatest blessing of hu- 
 man life, and the most excellent attribute of the human 
 mind. It is consequently bartered away or restrained
 
 Lect. VI.] ON NATURAL RIGHTS. 243 
 
 only for the purpose of procuring, on the whole, some great- 
 er good, or rather for the purpose of rendering this valua- 
 ble possession more extensively and variously useful; and 
 this is *he only measure of its protection and limitation un- 
 der the laws of political societies. 
 
 2. Social Liberty. This is natural liberty limited and 
 regulated by the ends of mere primary society, that is, as 
 it is manifested by matrimony, temporary defence, hunt- 
 ing in company, or any other transient and partial object, 
 short of those of civil society. We carry with us into po- 
 litical society such a portion of our social liberty as is con- 
 sistent with the more enlarged scheme of political associa- 
 tion; for man, whether in a state of nature, or of primary 
 or political society, is si ill essentially the same being; and 
 it is the great design of government and laws to enlarge, 
 restrict and modify all our natural and social rights and 
 dunes, so as to produce the greatest share of human happi- 
 ness. This is effected mainly by clearly defining the na- 
 ture and extent of our liberties, and securing us in their full 
 enjoyment. 
 
 3. Civil Liberty. This is also natural and social liber- 
 ty, modified by law, as far as the united ends of the social 
 and political union require. This definition differs essen- 
 tially from that given by several writers, who, as they find 
 natural liberty defined to be the power of acting as we 
 please except when restrained by the natural law, infer 
 that they properly describe civil liberty as a like power of 
 acting except when restrained by civil laws. It is, how- 
 ever, extremely manifest that this cannot be correct, as it 
 leads directly to the absurd conclusion, that whatever is en- 
 acted by a civil law, however unwise the enactment, can 
 be no invasion of civil liberty; a conclusion greatly at va- 
 riance with all experience, and essentially erroneous in 
 principle. The errour, we conceive, lies in referring the 
 consistency spoken of, to civil laws, instead of the civil
 
 244 EFFECTS OF GOVERNMENT [Lect. VI. 
 
 compact, or the ends of all political associations. If we 
 mete out civil liberty to men, and call them freemen be- 
 eause they are only restrained by civil enactments, they 
 may have any measure of civil liberty, and yet be the ve- 
 riest slaves of the most cruel despotism; for though these 
 enactments should all be written, certain and comprehensi- 
 ble laws, they may be severe, vexatious and arbitrary. It is 
 obvious, then, that this cannot be a sound definition of civil 
 liberty, and that none can be correct which does not refer 
 the restraint of our natural and social liberties to the ends 
 or design of the social and political compacts. Another ob- 
 jection to this definition is, that as many restraints are im- 
 posed by the mere act of civil union, without the aid of any 
 civil law, there would, (according to the terms of it) be no 
 civil liberty in any polilical community, as there are many 
 existing restraints of natural liberty which are altogether 
 independent of any positive enactments. The unsoundness 
 of this definition is further manifested by another singular 
 conclusion which would seem to result from it, viz. that 
 the more civil laws are multiplied, the more is civil liberty 
 circumscribed; or, in other words, the more laws, the less 
 liberty, because every new law is creative of some restraint 
 which did not exist antecedently. Now, on the contrary, 
 it is the pride of free states to enact laws for the preserva- 
 tion of their liberties; and many doubts are solved, and 
 difficulties removed by express enactments, which are of- 
 ten so many guards against oppression, and enforcements 
 of civil liberty, and by no means general restraints by 
 which our liberty is circumscribed. Who, for example, 
 could suppose for a moment that the statutes of Magna 
 Charla, 17 of John, and 9 Henry 3; or the thirty-two sta- 
 tutes confirmatory of that'great charter, from the reign of 
 the first Edward down to that of Henry 4; or the statutes 
 of Habeas Corpus, the 1G and 31 Charles 1, &c. &c. who, 
 we say, could regard all these but as so many abridgments
 
 Lect. VI.] ON NATURAL RIGHTS. 245 
 
 of civil liberty, instead of the sure and defined sources of 
 it? But if we adopt the definition now suggested, none of 
 these difficulties arise; for by referring the modifications 
 of cm- natural liberty solely to the ends of the political 
 , and not to the laws of the society, we perceive at 
 once how it. is that numerous laws are not only consistent 
 with civil liberty, but, in fact, may be the strongest bul- 
 warks even of our natural rights, and the best contrivances 
 to prevent their invasion. The act of civil union, there- 
 fore, and the creation of a magistracy, with the delegation 
 to it of legislative and executive powers, are not acts by 
 which men yield up their freedom of action, but a compo- 
 sition between them and their foes, (for such are the unqui- 
 et and unjust, who render government and laws necessary,) 
 whereby they bargain away an uncertain and unproductive 
 liberty, for a defined, regular and secured freedom; and it 
 is, at the same time, a compact between them and the just, 
 for the prosecution of useful ends. Any one, therefore, 
 who submits himself to the guidance of a community, gives 
 up his licentiousness, and not his liberty. In further sup- 
 port of this view of the subject, we should also bear in 
 mind, first, that a man cannot strictly be said to yield up a 
 right, when he obtains an equivalent right in exchange, 
 which is obviously the fact in this case, where all the mem- 
 bers of the community come in on the same terms: se- 
 condly, that, in truth, the man retains as a member of the 
 society, the right which as an individual he surrendered to 
 it: and finally, that by the act of civil union individuals 
 associate into one general tribunal for the judgment of each. 
 Hence, they cannot be said to abridge their own liberty by 
 yielding obedience to the injunctions of this tribunal, any 
 more than when a man determines of his own mind to pur- 
 sue any particular conduct; for being a party to all the de- 
 cisions and injunctions of the tribunal or society of which 
 they are members, they cannot be said to abridge their own
 
 246 EFFECTS OF GOVERNMENT [Lect. VI. 
 
 liberty. Nor does it alter this reasoning, that the powers of 
 government are sometimes delegated to one, or a few select- 
 ed persons, since the laws of nuture must forever recog- 
 nize the individuals of the community as the fountain of 
 all legitimate power, and the only arbiters in the last resort. 
 Under this view, the rule for judging whether the civil 
 liberties of a nation, or of any of its members have been 
 invaded by those entrusted with authority, is a plain and 
 brief one, although it may sometimes be a rule of extreme 
 difficulty and delicacy in its practical application. In all 
 such cases the simple inqui/y is, do the objectionable laws 
 &c. carry restrictions further than the ends of the civil 
 union require? Are they demanded by a comprehensive 
 view of all the necessities of the case? Have they secured 
 the civil liberty of the whole from the attacks of individual 
 licentiousness? The replies to such inquiries must deter- 
 mine the justice of the laws in question. We will only 
 add, that when we thus define civil liberty to be as much 
 natural liberty as is consistent with the obligations of the 
 social and civil union, there may be a sort of implication, 
 that the social or political compact does in some degree 
 restrict our liberty, by an actual surrender of rights, with- 
 out a correspondent equivalent. But this, as we have ex- 
 plained it, is by no means the case; for, in the first place, 
 if any thing were given away, it was licentiousness, not 
 liberty: secondly, a right cannot be said to be given away, 
 which was compensated by another of equal or greater va- 
 lue: and thirdly, nothing is given away which is merely 
 transferred from a man in his individual capacity, to him- 
 self and others as members of a community; for as every 
 other member of the state has done the same thing, it is 
 nothing more than a transfer of power from one capacity 
 to another capacity, with defined ends. On the whole, 
 therefore, it appears sufficiently clear that society, govern- 
 ment, and wise laws imply rather an augmentation than
 
 Lect. VI.] ON NATURAL RIGHTS. 247 
 
 an abridgment of liberty. For when we compare the state 
 of nature, or of primary society, with that of civil society, 
 we find the liberty of the latter exceeds that of the former 
 in the proportion that the secure enjoyment of natural and 
 adventitious rights excels the irregular and uncertain ac- 
 quisitions we might make in a state wherein caprice and 
 injustice were more frequently the arbiters of our rights, 
 than wisdom and honesty. 
 
 Let us now proceed to the consideration of 
 4. Political Liberty. This is frequently confounded 
 with civil liberty; but Mr Christian has correctly defined 
 political liberty to be the security with which, from the 
 constitution, form and nature of the government, the mem- 
 bers of the community enjoy their civil liberty. The 
 greater share its people have in the government, the greater 
 is their political liberty; and, of course, the better guarded 
 will be their civil liberty. 
 
 Though civil liberty may be enjoyed under a monarchy, 
 or even under a despotic government, yet, as the subjects 
 have no security for it, they have no political liberty. This 
 distinction between civil and political liberty is compara- 
 tively of modern origin. Formerly, it was only hinted at 
 by writers on natural and political law, who appeared to 
 have some indistinct notion of the necessity of thus distin- 
 guishing them, but did not themselves see the distinction 
 sufficiently to explain it with clearness to others. Ruther- 
 forth, in speaking of civil liberty, views it as either that 
 of the several members of the community, or that of the 
 entire body politick. 'The civil liberty of the individuals/ 
 says he, 'implies freedom from all except civil subjection; 
 but the civil liberty of the whole body implies freedom 
 from all subjection.' 'Civil subjection,' continues he, 'is 
 consistent with the civil liberty of the several members, 
 but not with that of the collective body; for whenever a 
 society has proceeded from that perfect democracy which
 
 24S EFFECTS OF GOVERNMENT [Lect "VI. 
 
 results from the first union of individuals, called primary 
 society, it will depend on the nature of the subsequent 
 government whether the civil liberty of the whole remains 
 or not. Thus, an absolute monarchy puts an end to it; for 
 then the collective body must act by a judgment and will 
 which are not in its own keeping; and thus we may under- 
 stand why, on the change of a government from popular 
 to monarchical, a nation is said to have lost its liberty.'' 
 It is manifest from the foregoing observations of Ruther- 
 forth, that he aims at distinguishing between civil, and what 
 has more recently been called political liberty, as contra- 
 distinguished from civil, the latter being, according to Dr 
 Priestley, 'the power which the community leaves the citi- 
 zen possessed of with respect to his own conduct, and the 
 former the share he may have in directing the affairs of 
 the society.' 'There. may be states,' says this writer, 'in 
 which all the members may have an equal share in making 
 the laws, and yet these may be so severe as to leave them 
 very little power over their own actions. So, also, men 
 may be left by a mild code of laws to think and act very 
 freely for themselves, and yet be excluded from all share 
 in the government. But as the enjoyment of their privi- 
 leges would in this last case be very precarious, it is obvi- 
 ous that political liberty is the only safeguard of civil.' 
 
 But political liberty has itself been distinguished into 
 two kinds, viz. as it regards the state, on the one hand, and 
 the members of the community on the other. The former 
 may perhaps be called publick political liberty, and the 
 other private political liberty. The learned editor of the 
 'Commentaries,' Mr Tucker, defines the first to be 'an ab- 
 solute and unconstrained power of self government, subject 
 to no control but the laws of nature and nations.' Would 
 it not be better, however, to denominate this indepen- 
 
 * 2 Ruth. last. 371 to 388.
 
 Lect. VI.] ON NATURAL RIGHTS. 249 
 
 dence, and to call the other political liberty merely, and 
 without the adjunct word, 'private?' The recent attempt 
 of France to interfere with the government and internal 
 policy of Spain, was an invasion of her publick political 
 liberty, or independence. So, likewise, in the case of con- 
 quered countries, this publick political liberty may be 
 gone, although the civil liberties of the people may re- 
 main unimpaired, and even though the private political li- 
 berty continue nearly the same as formerly. The same 
 remarks may apply to colonies. 
 
 The second species of political liberty, viz. that which 
 regards the members of a community, has been likewise 
 considered in two lights; first, as applied to the publick 
 functionaries of a state, in which case it consists of the free 
 exercise, enjo3anent and security of their political rights 
 and privileges, according to the constitution and laws of 
 the country; and secondly, as it regards the private indi- 
 viduals of the nation, in which case it consists in the secu- 
 rity with which the people enjoy their civil liberties; and 
 that security is in proportion to their participation in the 
 affairs of government. These two kinds of political liber- 
 ty are treated by Montesquieu in the eleventh and twelfth 
 books of 'The Spirit of Laws,' under the heads 'of laws 
 which form political liberty with regard to the Constitu- 
 tion,' and 'of laws which form political liberty as relative 
 to the Subject.' 
 
 Mr Macaulay, in his 'Rudiments of Political Science," 
 lias found fault with the whole of the distinction between 
 civil and political liberty. That writer, and others who 
 think the distinction unimportant, and that no other ex- 
 pression need be used than 'civil liberty,' seem to sustain 
 their opinion by views somewhat like the following. It is 
 evident, say they, that the phrase 'civil liberty' necessarily 
 implies something more than mere freedom from restraint, 
 and that it also imports something beyond what Montes- 
 32
 
 250 ON NATURAL RIGHTS. [Lect. VI- 
 
 quieu has called 'relative liberty, or the faculty of doing 
 whatever we will, unless restrained by force or law.' 
 This being the case, and as it imports not only the mere 
 actual state of a citizen or subject, but also the secured 
 right of directing his own actions, within certain limits; 
 that secured right may be based either on the merciful 
 edicts of an absolute monarch, or on the laws which the 
 subject himself has a share in making. If civil liberty be 
 consistent with an absolute government, the subject or citi- 
 zen cannot with propriety be called free, as there is no se- 
 curity by law for its continuance; but it flows from the 
 mere will of the monarch. In such a case, the subject in- 
 deed may be actually and temporarily free; but he cannot 
 be said to be civilly so; he does not enjoy civil liberty. 
 Freedom should not be regarded merely as a state or condi- 
 tion in which the people do in fact direct their actions; but 
 as one in which they have guaranteed to them the perpe- 
 tual power and right of so doing; and this is civil liberty, 
 which is all that is embraced under the compound idea of 
 civil and political liberty. In this view of the subject, no 
 such phrase as political liberty is required, because civil 
 liberty means all that political liberty can mean, and also 
 all that civil liberty, as distinguished from it, means; and 
 mere freedom from restraint or oppression not being liberty 
 at all, needs no name for its designation. These views in 
 opposition to the use of these two phrases in the distinct 
 senses we have mentioned, are certainly plausible; but, we 
 apprehend, not entirely correct. The topic, however, need 
 be no further pressed. We think the phrases thus under- 
 stood have become too much used, and are now found too 
 convenient, to be abandoned. They certainly can do no 
 harm, whilst they keep more distinctly separate, ideas 
 which have been often blended, and are sometimes consi- 
 dered as identical.
 
 Lect. VI.] ON NATURAL RIGHTS.- 251 
 
 Sufficient has perhaps been said to render obvious to 
 the student the distinctions between the various kinds of 
 liberty of which we have spoken, and thus to illustrate the 
 different modifications of our natural personal liberty, con- 
 sequent upon entering into the numerous relations to which 
 political society gives rise. 
 
 As to the extent to which personal liberty is alienable, 
 we have nothing further to add to what was said in a pre- 
 vious lecture, except that, whatever difficulty we may find 
 in fixing the limits within which rulers and people, pressed 
 by necessity and tyrannical power, may make compacts to 
 bind themselves and their posterity, there seems to be no 
 principle in the law of nature which obliges men, on the 
 one hand, to sacrifice privileges essential to the just govern- 
 ment of life and thought; or allows them, on the other, to 
 exercise over the unfortunate, the weak, or even the base, 
 a power which implies the right to make them yet more 
 unhappy and wicked. 
 
 We have now brought to a close what we had to say as 
 to the general effects of society and government on the 
 Natural Rights of Man. 
 
 In the ensuing lecture we shall consider the various defi- 
 nitions, the nature, properties, and different kinds of law.
 
 
 LECTURE VII. 
 
 OP LAW, AND ITS GENERAL PROPERTIES. 
 
 (I.) Introductory Before we examine the properties 
 remarks. common to all laws, or those which dis- 
 
 tinguish them into various classes, it is proper that we 
 should endeavour to ascertain the precise import of seve- 
 ral terms and expressions which, common as they are, have 
 not been clearly defined, and of which the definitions have 
 been extremely various. I allude to the terms 'Law,' 
 'The Law,' 'A Law,' 'Jurisprudence,' 'Municipal Law,' 'A 
 Municipal Law,' 'Statute' &.c. It is also necessary to ad- 
 vert to the abstract and concrete significations of law, and 
 explain the confusion and errour of many definitions, con- 
 sequent on not distinguishing between law as a genus, and 
 law as a species. 
 
 (2.) Of Law in 'Law,' 'The Law,' (not meaning a par- 
 
 the Abstract, and in ticular law) are abstract terms, and, as 
 the Concrete. „ . . 
 
 collective or generical expressions, mere- 
 ly import the totality of individual laws, contemplated as 
 one body, without reference either to their origin or appli- 
 cation. In this point of view Law is an ens rationis 
 merely, there being no actual entity correspondent to the 
 term; nor can any very definite meaning be collected 
 from it. These terms, indeed, are not often used to im- 
 port the full extent of their abstract signification, being 
 more frequently used in a sense so far concrete as to refer 
 to some particular system of law, and yet in a sense so far 
 abstract as to have no direct reference to any particular
 
 Lect. VII.] OF LAW, AND ITS GENERAL PROPERTIES. 253 
 
 law of that system. If, for example, a Roman lawyer 
 were to say 'law, or the law, forbids ingratitude,' he would 
 use these terms in a sense somewhat concrete as well as 
 abstract, and different from what the same expression 
 would import, were it used by a British lawyer. The 
 civilian would chiefly allude to the Roman code, which 
 punishes ingratitude in various instances; and he might 
 also allude remotely to the particular laws against ungrate- 
 ful freedmen and donees, both of whom were punished; 
 the former by being recalled into bondage; the latter by 
 the revocation of the things given. The British lawyer, 
 on the other hand, would have a much less definite ide'a, 
 and, at most, would be supposed to allude to the jus naturae 
 generally, or to that strong sense of detestation entertain- 
 ed by mankind against ingratitude of every kind; since in 
 the English system there are no laws respecting it in any 
 case whatever. 
 
 Law in the concrete signifies some particular rule of ac- 
 tion that must be observed in order to avoid some sanction 
 of a physical, religious, moral or civil nature; or (as is 
 sometimes the case with human laws) in order to attain 
 some corresponding good; leaving the party who violates 
 the law as he was before, except with the loss of a poten- 
 tial gain. Be the sanction, however, what it may, and 
 whether punitory, merely remunerative, or both, it is still a 
 law, as it obliges the person to its observance, if he would 
 avoid the punishment in the one case, or obtain the advan- 
 tage in the other. Law in the concrete always supposes 
 some certain and known superior, competent to prescribe 
 the rule, and to enforce or execute the sanction. Hence, 
 in this concrete sense, laws, as far as they regulate human 
 conduct, admit of a fourfold division, viz. into Divine, Na- 
 tural, International, and Civil or Municipal; there being 
 no other conceivable moral laws than those expressly re- 
 vealed to us by God; or such as are dictated to us by the
 
 254 OF LAW, [Lect VH 
 
 light of reason and conscience; or such as are agreed upon, 
 or submitted to, by sovereign nations for the regulation of 
 their intercourse with each other; or, lastly, those directed 
 by a community to its individual members, or to the whole 
 body politic for its own government. The three last, men- 
 tioned classes of laws are properly embraced in a book of 
 jurisprudence, and form the only subjects within the scope 
 of legal inquiries. 
 
 In most languages we find appropriate words to distin- 
 guish the abstract from the concrete sense of the word 
 law. Thus, in Latin, we use the term jus for the former, 
 lex for the latter. Jus imports a system of laws, or the 
 abstract consideration of that scheme of duty which arises 
 from many or several rules or laws put together. It signi- 
 fies the genus, comprehending all the unwritten as well as 
 written law; and of it lex, or a particular law, written or 
 unwritten, is a species. Thus, we say Jus gentium, not 
 Leges gentium; and Jura personarum, not Leges per- 
 sonarum. 
 
 Lex, however, is sometimes used abstractly, and in lieu 
 of jus, but never when it refers to a definite law. A civi- 
 lian would never, for example, say Jus JuKum, Jus Cor- 
 nelium, Jus Horatianum, Jus Papia-Poppwum, instead 
 of Lex Julia &c; but he would say Jus Honorarium, 
 as this imports no particular law, but a general system, 
 made up of the edicts of the Praetors and JEdiles. So, in 
 French, the word droit expresses the abstract, and lot the 
 concrete signification of the word law. We do not say 
 Loi, but Droit de la Nature. The Spaniards have also 
 ley and dcreeho as correspondent terms; the Germans use 
 gesetz for the concrete, and recht for the abstract; and the 
 Italians use legge and diritlo. The English, perhaps, 
 has no words expressive of these distinct significations. 
 The word law is indifferently used, and the two meanings 
 can be expressed only by the use of additional words.
 
 Lect. VII.] AXD ITS GENERAL PROPERTIES. 255 
 
 The old English, indeed, had the word right to express 
 the abstract sense; hence the term Folk-right, meaning 
 the people's-Iaw; but this use of the word is obsolete, un- 
 less, perhaps, the expressions 'Rights of persons,' and 
 'Rights of things,' should be received as importing the 
 same thing as laws of persons &c. using the words rights 
 and laics abstractly, and as strictly synonymous with jura 
 personarum &c. Some, however, may object to the use 
 of the words jura and rights as importing laws in the 
 abstract, and may contend that the word 'rights" in those 
 several expressions should not be rendered by the word 
 'laws,' but by the word 'rights* in its ordinary acceptation; 
 meaning thereby certain qualities vested in us, whereby 
 we justly claim the power of doing certain actions, and of 
 possessing certain things, and not as synonymous with the 
 word 'laws.' If that rendering be the more correct, we 
 have then no word in our language expressive of the dis- 
 tinction so often alluded to. 
 (3.) Various Defi- Logicians have made many nice dis- 
 
 nitions of Law, and tinctions as to the nature and several 
 the reason of their , . , ~ . ~ ... m, ,, • ir 
 
 general incorrect- kinds of definitions. The thing itself 
 
 ness. may be defined, or only the name. The 
 
 definition may be strictly logical, or without regard to 
 the rules of that art: hence the schoolmen have divided 
 definitions into four kinds, Nominal, Real, Accurate and 
 Inaccurate, the last of which takes the name of Description. 
 Every species of definition, however, should aim at distin- 
 guishing the matter defined from all other things. Neither 
 the thing defined, nor synonymous names, should form a 
 part of the definition; and it should agree with every spe- 
 cies comprehended by the genus, and not merely with a 
 part of the genus, and «a part of the species. So, in de- 
 fining things or words, either the genus or the species 
 should be comprehended, nor should it be doubtful to which 
 the definition applies. The inaccuracy and uncertainty of
 
 g5G OF LAW, [Lect. VII. 
 
 many definitions that hnve been given of the term Law, 
 arise either from defining the species where the genus was 
 intended, or e converso. The difficulty and danger of defi- 
 nitions have been often adverted to by writers; and their 
 great utility, when correctly framed, has also been equally 
 commended. Swinburne, a learned and accurate legal au- 
 thor of Elizabeth's time, in the early part of his great 
 work, remarks that 'definitions are said to be dangerous in 
 law; the cause whereof is the multitude of different cases, 
 the penury of apt words, the weakness of our understand- 
 ing, and the contrariety o r opinions; for among such vari- 
 ety of things, either we cannot discern the true essence 
 thereof, or we do not aptly deliver what we conceive; or 
 else, these perils being past, at least in our own opinions, 
 yet are we still subject to the rigorous examination of all 
 sorts of men, and must abide the verdict and sentence of 
 the deepest judgments. And it is rare if one man at least, 
 among so many, do not espy some defect or excess in the 
 definition, whereby the same may be subverted. Which 
 thing if it come to pass, then the definition being over- 
 thrown, all the arguments drawn from thence, and whatever 
 else dependeth thereupon, is in peril to be overturned. No 
 marvel, then, if definitions be reported to be dangerous. 
 But if, contrary to the common course, the definition be so 
 just that it cannot be fairly reproved, then it is profitable, 
 and so necessary that from thence, as from the root and 
 fountain, every discourse ought to take this beginning; the 
 rather, for that thereby (amongst many other benefits is- 
 suing from definitions) the whole nature of the thing de- 
 fined is plainly declared, and that in few words.'* Had 
 legal authors generally been duly impressed with the views 
 of this writer as to the caution with which they should 
 frame their definitions, there would have been less occasion 
 
 "' Swinburne on Testaments and Last Wills, part 1, sec. 3.
 
 Lect. VII.] AND 1TS GENERAL PROPERTIES. 257 
 
 than now exists, to examine them critically. The fol- 
 lowing are the most celebrated definitions of law in the 
 abstract and concrete, that have been given from the ear- 
 liest times to the present day. They are stated some- 
 what in chronological order, and the defects of some of 
 them will be briefly noticed. 
 
 1. 'The design and object of laws is to ascertain what is 
 just, honourable and expedient; and when that is discov- 
 ered, it is proclaimed as a general ordinance, equal and im- 
 partial to all. This is the origin of law, which, for various 
 reasons, all are under an obligation to obey; but especially 
 because all law is the invention of Heaven, the resolution 
 of wise men, the correction of every offence, and the gen- 
 eral compact of the state; to live in conformity with which 
 is the duty of every individual in society.' Demos- 
 thenes, Orat. 1. cont. Aristogit. 
 
 2. 'A law is a form of words prescribed by the general 
 consent of the City, directing every member thereof how 
 to act on all occasions. ' Aristotle, Rhet. ad Alex. cap. 1. 
 
 3. 'Positive law is in all respects a contract. The par- 
 ties contracting are the governors and the governed. On 
 the side of the public it is stipulated by the laws, that a 
 general security shall be maintained; that every person who 
 is a party to the contract, shall have his just rights protect- 
 ed; and shall not be molested by any act of violence to his 
 person or property; or, if molested, upon a proper com- 
 .plaint, he shall find the laws ready to avenge his quarrels, 
 and that they can punish as well as prescribe. ' Aristotle. 
 
 4. 'Law is the distinction betwixt justice and injustice.' 
 'Est lex justorum injustorumque distinction 'Lex est 
 summa ratio insita a naturd, quse jubet ea quse faci- 
 enda sunt, prohibet que coniraria.' > Cicero, de Leg. c. 2. 
 
 5. 'Jurisprudence is the knowledge of things divine and 
 human; the science of what is just and unjust.' 'Juris* 
 prudentia est divinarum it I que hmnanarum return no- 
 
 33
 
 258 OF LAW, iLectVII. 
 
 titia,justi atque injusti sciential Justinian, Inst. lib. 
 1. tit 1. sec. 1. 
 
 6. 'Jus civile est quod quisque sibi populus constituit. 
 Justinian, Inst. lib. 1. tit. ii. sec. 1. 
 
 7. 'Law is an art of well ordering civil society.' Sir 
 Henry Finch. 
 
 8. 'Law is a just statute, ordaining what is right and 
 honest, and prohibiting the contrary.' l Lex specialiter 
 signijicat sanctionem justam, jubentem honesta, et pro- 
 hibentem contraria.' Bracton, lib. 1. cap. 3. 
 
 9. 'Law is a rule of moral conduct, obliging men to do 
 what is right. ' 'Regula actuum moralium, obligans ad 
 id quod rectum est.' Grotius, lib. 1. cap. 1. sec. ix. 
 
 10. 'In general, a law may conveniently enough be de- 
 fined a decree by which a sovereign obligeth his subjects 
 to conform their actions to what he prescribes.' l In gen- 
 ere autem lex commodissime videtur definiri per decre- 
 tum, quo superior sibi subjectum obligat, ut ad istius 
 prsescriptum actiones quas componat.' Puffendorf, 
 lib. 1. cap. 1. sec. 4. 
 
 11. l Law is a rule of action imposed on a subject by one 
 who has power over him.' Bishop Saunderson. 
 
 12. 'Laio is a rule of acting or not acting.' Daws' 
 Orig. Laws, 4. 14. 
 
 13. 'Law is that which assigns unto each thing the kind, 
 moderates the force, and appoints the form and measure 
 of working. Hooker, Ecclesi. Poli. 2. 
 
 14 './? law is the command of him or them that have 
 the sovereign power, given to those that be his or their 
 subjects, declaring publicly and plainly what any of them 
 may do, and what they must forbear to do,' Horbes' Di- 
 alogue between a Lawyer and a Philosopher. Works, 
 598. 
 
 15. 'Laws, in their most general signification, are the 
 necessary relations resulting from the nature of things.' 
 Montesquieu, vol. 1. 16.
 
 Lect. VII.] AND jts GENERAL PROPERTIES. 259 
 
 16. 'Law is a rule prescribed by the sovereign of a so- 
 ciety to his subjects, either in order to lay an obligation of 
 doing or omitting certain things, under the commination 
 of punishment; or to leave them at liberty to act or not in 
 other things, just as they think proper, and to secure to 
 them, in this respect, the full enjoyment of their rights.' 
 Burlamaqui, Inst. Nat. Law, chap. viii. 
 
 17. 'Law is the will of a superior, sufficiently notified 
 in some way or other, by which will he directs either all 
 the actions in general of those who depend on him, or at 
 least of all those of a certain kind, so that, in regard to 
 such actions, he either imposes on them a necessity of doing 
 or not doing certain things, or leaves them at liberty to act 
 or not act, as they shall judge proper.' Barbeyrac, Note 
 5 on Grotius, lib. 1. cap. 1. sec. ix. 
 
 18. 'Law in the genus is that faculty whereby some 
 lawful superior prescribes rules of action which those in 
 subjection are obliged to perform under certain penalties, 
 express or implied. Dagge, Criminal Law, vol. 1, 2, vol. 
 
 2,95. V A" 
 
 19. 'Law, in its most general and comprehensive sense, 
 signifies a rule of action, and is applied indiscriminately 
 to all kinds of action, whether animate or inanimate, ra- 
 tional or irrational : and it is that rule of action prescribed 
 by some superior, and which the inferior is bound to obey.' 
 Blackstone's Comm. 1 vol. 43. 
 
 20. 'Civil or municipal law is a rule of civil conduct pre- 
 scribed by the supreme power in a state, commanding what 
 is right, and prohibiting what is wrong. 9 Blackstone, 
 Comm. 1 vol. 44. m 
 
 ( 4.) Observations Without intending to indulge in hyper- 
 on the foregoing de- critical remarks on the foregoing defini- 
 finitions. tionSj it may be justly said that they are 
 
 generally far from accurate, and that most of them are ob- 
 noxious to the charge of not properly distinguishing Law
 
 260 °P LAW, [Lect. VII. 
 
 from a positive law. Several of them are rather descrip- 
 tions than definitions; others are neither the one nor the 
 other; and many of them confound different species of law 
 with some other species, or with the genus law. A few ob- 
 servations on each of them, in the order in which they are 
 enumerated, will perhaps justify this comprehensive cen- 
 sure. 
 
 No. 1. The beauty of this description of law by Demos- 
 thenes has been often a theme of admiration; and Mr 
 Christian regards it 'as the most perfect and satisfactory 
 description of law than can be conceived.'* We concurjn 
 the opinion respecting its beauty, but are inclined to think 
 the praise overcharged, which considers it as 'perfect' and en- 
 tirely 'satisfactory.' If law be in part the invention and gift 
 of Heaven; in part the precepts of wise men for the cor- 
 rection of offences; and lastly, if it be also in part a gene- 
 ral covenant of the citizens, by which their conduct is to 
 be regulated; and if, from the excellence of its threefold 
 origin, it is clothed with authority; the description is not 
 very explicit as to the grounds of that authority, nor is 
 any thing said as to its sanctions. As far as law proceeds 
 from Heaven, it is authoritative, and no sanction need be 
 adverted to; but the wisest precepts of the wisest and most 
 virtuous of mankind are not necessarily authoritative or 
 obligatory ; and if they were, the right or power to en- 
 force them by sanctions should appear. Again, if obliga- 
 tion be consequent on .the precepts of wisdom, offences 
 would not be the only objects of these precepts: and last- 
 ly, if laws also proceed from a general compact of the cit- 
 izens, how are those citizens bound by them who have not 
 consented to their enactment? If they all consent, it may be 
 a law and a compact both; and it would be law as to those 
 also who did not consent, had the description provided any 
 
 e 1 Blackstone's Commentaries 44. Note.
 
 Lect. VII.] AND ITS GENERAL PROPERTIES. 261 
 
 other source of civil or positive laws than general compact. 
 In this respect the description is also unsatisfactory, since 
 valid laws may be made by lawful human superiors or 
 sovereigns, binding even on those who dissent; and this is 
 the case even in a democracy, where the majority of the 
 people is the superior or sovereign over all others within 
 the community. Hence, legitimate laws would seem to 
 arise only from God; from the consent of all who are 
 bound by them; and hstly, from the authority of some 
 lawful earthly superior, though against the consent of those 
 affected by the law. But perhaps it may be said that 'the 
 general compact of the state' mentioned in the description, 
 refers to the first political union, and not to the making of 
 the laws themselves in virtue of the power conferred by 
 that compact; and that therefore the laws are binding on 
 the minority because the compact itself must be presumed 
 to have settled the principle, that all laws constituted by 
 the majority shall be equally obligatory on all. This may 
 possibly have been the meaning of the orator, but it is not 
 so expressed. If such be the meaning, it redeems his des- 
 cription from the imperfection last attributed to it. 
 
 No. 2. This definition by Aristotle is liable, we think, 
 to two objections. First; it confounds the statute, that is, 
 the form of ivords, with the precept or law itself. This, 
 indeed, is a very common errour. The statute is the mere 
 physical entity, and may contain within its limits a great 
 variety of precepts or laws. A law is a single and dis- 
 tinct precept; it is the intellectual entity evidenced by 
 the statute. Should a statute comprehend many precepts, 
 as is generally the case, it must be regarded as containing 
 so many distinct laws, exhibited by a form of words set 
 forth in one instrument; so that every distinct order, even 
 though in the same section of a statute, is as much a 
 law as if declared by a distinct statute. The popular 
 notion of a law comprehends, indeed, all that happens
 
 262 op LAW, [Lect. VII. 
 
 to be embraced by any ordinance of the lawgiver; but the 
 just idea is that just stated; and, as respects the form of 
 words, it would be better, perhaps, were all the distinct 
 precepts or orders of a statute evidenced by at least as many 
 distinct sections. Were this more frequently done, there 
 would be less cause for judicial interpretation than exists 
 at present. 
 
 Secondly. Aristotle intended this as a definition of civil 
 law generally, and not of a civil law. This appears by the 
 words 'on all occasions:' hence it would have been better 
 had the word 'civil' or 'municipal' been used, instead of 
 the particle a. The words 'general consent' likewise, (un- 
 less they refer to the original power conferred on the com- 
 munity to make laws, and thereby to bind the minority,) 
 are at variance with the rest of the definition, which 
 speaks of the laws themselves as prescribed by that gene- 
 ral consent. This imparts to the definition the same ob- 
 scurity I alluded to when remarking on the description of 
 law by Demosthenes. 
 
 No. 3. In this description of positive or civil law, Aris- 
 totle has been more happy. It justly refers the origin of 
 all such laws to the consent, express or implied, of the go- 
 verned; and describes, in a general way, the objects of 
 civil laws, and the power of the organ by which they are 
 constituted, to enforce their observance. 
 
 No. 4. The principal objection to these definitions by 
 Cicero is, that, while they aim at defining law as a genus, 
 they define merely the law of nature, which is one species 
 only. 
 
 No. 5. This is not a definition of law either as a genus, 
 or a species; either in the abstract or the concrete. The 
 term 'Jurisprudence' is indeed itself altogether an ab- 
 stract one. If it means the totality of laws, having no 
 regard to their origin, nature and application, or if it signi- 
 fies the science of universal law, it has in either case no-
 
 Lect. VIL] AND ITS GENERAL PROPERTIES. 263 
 
 thing in common with a law. The science which ex- 
 plains law, or the volume or code which contains laws, 
 has in it no one property of law. Justinian evidently 
 meant nothing more than that the science of jurisprudence 
 relates to the conduct of all intelligent beings, and that it 
 is partly of divine, and partly of human ordinance. But 
 when he subsequently speaks of it as 'the science of what 
 is just and unjust,' he departs somewhat from the first 
 clause of his description, and restricts both divine and hu- 
 man laws within the pale of mere morals, or of the jus 
 naturoe; whereas jurisprudence has a more extensive im- 
 port, since the laws both of God and man relate to actions 
 neither right nor wrong under the law of nature; as, for 
 example, the whole of what is strictly called divine positive 
 law, and such human laws as are founded on civil policy 
 only; those, for example, which inhibit the killing of 
 game; the exportation of wool; inhumation in cotton vest- 
 ments &c.* 
 
 No. 6. This definition of civil law, from the Institutes, 
 is still more defective, as it is neither a definition nor a 
 description. Justinian does not define law, either in the 
 abstract or the concrete; but, taking it for granted that the 
 import of the word is known, he merely says, 'That law 
 which a people enacts for its own government, is called the 
 civil law;' but no explanation is given of the import of the 
 word Haw,' and not a very satisfactory one of the word 
 'civil.' 
 
 No. 7. Sir Henry Finch evidently designed to explain 
 the meaning of the word law as a genus; but it is rather a 
 description of the object of legislation, or of the duty of 
 a lawgiver, than a definition of law itself. There appears, 
 moreover, to be no propriety in defining a law or laws to 
 be an art. 
 
 • Vide remarks on 20th definition.
 
 264 OF lAW > [Lect. VII. 
 
 No. 8. Bracton's definition was intended to apply only 
 to a species, viz. civil law; but is not a just one even of 
 that; since civil law does not restrict its commands and 
 inhibitions to things merely honest and just, or the contra- 
 ry. The word sanclio, which is generally rendered by 
 the word statute, has a more comprehensive signification, 
 and means order or command; so that this word statute is 
 not obnoxious to the remarks made in considering the se- 
 cond definition. 
 
 No. 9. This cannot be regarded as any thing more than 
 a definition of the law of nature, and not a very compre- 
 hensive one even of that species of law. I shall only observe 
 here, that Pufiendorfs leading objection to it appears to 
 me untenable. He reproves it because Grotius thereby 
 makes right antecedent to law, whereas Puffendorf him- 
 self considers all such right to be created by the law. I 
 shall have occasion to consider this doctrine in the ensuing 
 lecture.* 
 
 No. 10. The objection to this definition by Puffendorf 
 is twofold; first; law in the general is not a decree or sta- 
 tute, for the reasons already suggested; secondly; if law 
 in the concrete, or as a species, be a rule prescribed by 
 some superior, the word lawful should be added; for no 
 kind of superiority per se confers a power on any one to 
 oblige others to obedience. 
 
 No. 11. The only material objection to this definition 
 is, that if it be a definition of law in the abstract, it is not 
 sufficiently comprehensive. The word 'subject' restricts 
 it to civil laws only. 
 
 No. 12. Law in the abstract consists, no doubt, of rules 
 of not acting, as well as of acting; since there are actions 
 which may be forbidden, and others which may be com- 
 manded. Still, as verbal accuracy is essential to exact li- 
 
 * Vide post, 306 to 311.
 
 Led. VII. J AND ITS GENERAL PROPERTIES. 26 5 
 
 initation of ideas, we cannot define law to be a rule of act- 
 ing or not [acting; for, as the learned Hooker justly ob- 
 serves, 'We must not suppose that there needeth one rule 
 to know the good, and another to know the evil by: for he 
 who knoweth what is straight, doth even thereby discern 
 what is crooked.'* 
 
 No. 13. This definition of law in the abstract is very 
 metaphysical and obscure. By the term 'working' is 
 meant, we presume, acting. To every action belong a 
 nature or 'kind,' a power or 'force,' a mode or 'form' of 
 doing, and a quantity or 'measure' of doing; and accor- 
 ding to this definition by Hooker, it is the province of law 
 to assign to every thing in nature these limitations of their 
 actions. But by whom, and for what object these limita- 
 tions are assigned, or by what power they are enforced, and 
 what are the general consequences of a departure from them, 
 we are not informed. Hence, as a definition or descrip- 
 tion of law, it is far from being satisfactory. 
 
 No. 14. This is at most a definition of a civil law only, 
 and not of the term Law. As such, it is objectionable in 
 omitting the word lawful before the words 'sovereign 
 power;' and also in the use of the word 'and' instead of 
 or; because the same law cannot command one action and 
 forbid another, as it would then be two laws. The same 
 statute or ordinance may contain both; but not the same 
 law.t And even if the same statute command the doing of 
 an act, and forbid the doing of the contrary, it would be 
 obnoxious to the objection stated in the remarks on the 
 twelfth definition. 
 
 No. 15. Montesquieu commences his immortal work on 
 the 'Spirit of Laws' with this definition of laws in the ab- 
 stract. It is difficult to conceive in what respect a law is 
 a relation, or a relation a law, though relations are always 
 
 ' Hooker 11. 1 Vide remarks ^n .No. t.
 
 266 OF LAW, [Lect. VII. 
 
 established by laws; or why these relations are necessary, 
 and are said to result from the nature of things. Several 
 points, doubtful perhaps, in physics and metaphysics, 
 are assumed in this definition; and this, were it correct in 
 other respects, would render it objectionable. A defini- 
 tion must be faulty which regards as a principle what is 
 doubted or denied by many. But if this objection be 
 waived, as far as it extends to mere physical and moral 
 laws, yet the definition cannot extend to various other 
 species of positive laws, and consequently cannot be re- 
 ceived as an accurate definition of the genus law. 
 
 No. 16. This definition is rather awkwardly expressed. 
 Law is not a rule prescribed 'in order to lay an obligation,' 
 but is a rule whereby an obligation is laid. The word 
 'sovereign/ also, should have been preceded by the word 
 lawful; since a rule is not a law, except in a popular sense, 
 unless the superior be a lawful one. In the absence of 
 this, his command is an act of usurpation, and an arbitrary 
 mandate creative of no internal obligation. This definition 
 is also framed expressly with a view to embrace permis- 
 sions as laws. How far they are entitled to be so consi- 
 dered, will be examined presently. They certainly are 
 not laws as to those who are at 'liberty to act or not, as 
 they think proper;' although, in regard to others, they are 
 laws so far as that liberty or permissive right cannot be in- 
 vaded by them. 
 
 No. 17. The observations made on the preceding defini- 
 tion apply equally to that of Barbeyrac. 
 
 No. 18. Mr Dagge, in his very able 'Considerations on 
 Criminal Law,' confesses that he has bestowed due pains 
 on his definition, and 'hopes that it will appear full and sa- 
 tisfactory.' Pie expressly states it to be a definition of 
 law in the genus. But it is obvious that he limits it to 
 the actions of intelligent beings only. Several objections, 
 we think, might bo made against it, even if physical laws
 
 Lect. VII.] AND ITS GENERAL PROPERTIES. 2()7 
 
 are properly excluded from the genus law.* He is fortu- 
 nate, however, in being the first to introduce the word 
 'lawful' as an adjunct to the word 'superior.' But it is 
 difficult to conceive how law is to be regarded as a '■facul- 
 ty.' Law, indeed, must emanate from a competent faculty, 
 but can never be itself a 'faculty whereby some lawful su- 
 perior prescribes rules of action;' for the law consists of 
 these very rules, and not of the power or authority by 
 which they are prescribed. 
 
 No. 19. This is a close approximation to a perfect defi- 
 nition of law as a genus. It would perhaps be better as a 
 definition, and less of a description, were it paraphrased, 
 with some additions to it, somewhat after the following 
 manner. 'Law signifies the rules of animate and inani- 
 mate, of rational and irrational action, prescribed by some 
 lawful superior, and which the inferior is bound to obey.' 
 We have ventured to use the word rules instead of a rule, 
 and the word and instead of or. The actions to which 
 law is relative being extremely various, and the entities 
 by which they are performed being almost equally so, the 
 genus law comprehends rather an infinite variety of dis- 
 tinct rules, than a rule of different kinds. The substitution 
 of this word seemed to impose the adoption also of 'and' 
 instead of 'or.' I have likewise added the word lawful 
 to the word 'superior,' not indeed for the reasons assigned 
 by a late learned judge of our country, who objects to the 
 word 'superior.' 'A superior!' says Judge Wilson, 'can 
 there be no law without a superior? Is it essential to law 
 that inferiority should be involved in the obligation to 
 obey it?'t The brief reply to these questions is, that if 
 'consent alone can make a law binding,' which is admitted, 
 still no feature of despotism is implied by this word 'supe- 
 rior;' for if the law be constituted by the community, that 
 
 * Vide post 301, where this point is considered. 
 f Wilson's works 65.
 
 253 OF LAW, [Lect. VII. 
 
 community is the superior, and the individual who is bound 
 to obey, is the inferior. There is nothing odious in the 
 term; it expresses nothing more than a truism, viz. that a 
 whole is greater than a part. Again; if the law be made 
 by the legislature, then the whole community, quoad the 
 law, is the inferior, and the legislature is the superior. I 
 have therefore added the word 'lawful' as an adjunct to the 
 word 'superior,' for reasons previously assigned.* 
 
 No. 20. Few definitions have been so severely criticised 
 as that of civil or municipal law by the great Commentator 
 on the Laws of England. Scarcely a word in it has es- 
 caped the most critical examination; and were all the re- 
 marks collected to which it has given rise, they would 
 form a considerable volume. This being a definition of a 
 class of laws, and not of a law, is objectionable, as it seems 
 to exclude one species properly embraced by that class, viz. 
 Permissions. So, also, the clause 'commanding what is right, 
 and prohibiting what is wrong,' is not sufficiently compre- 
 hensive. If the wrong or right alluded to, be referrible to the 
 law itself, because commanded or forbidden, the definition 
 would have been better without the clause; and, on the 
 other hand, if they be referred to the jus naturse, the defi- 
 nition falls short, as civil laws frequently, nay, generally 
 relate to things indifferent to the law of nature. t 
 
 The words 'supreme power' have given rise to conside- 
 rable reproof, and yet it is inconceivable how laws can 
 spring from any other source. The objection is, that the 
 Commentator has made legislative power necessarily iden- 
 tical with supreme power. Mr Tucker, in his annota- 
 tions, denies this doctrine, alleging that the 'jura summa 
 imperii,' or supreme powers, do not necessarily apper- 
 tain to the legislative body, but that in the American states 
 
 * Vide remarks on the 14th and 16th definitions. 
 
 \ Vide remarks on the 5th definition; also Christian's note to 1 vol. 
 Black. Comm. 44.
 
 Lect. VII.] AND ITS GENERAL PROPERTIES. 269 
 
 they reside exclusively in the people, who have delegated 
 to their legislatures limited, and not supreme powers.* Mr 
 Tucker's general views are certainly correct; but they do 
 not, we think, fix the objection on the expression 'supreme 
 power in a state,' since, as far as legislation is concerned, 
 the legislature, as the constituted organ of legislation, must 
 be the supreme power in every country, as far as the mak- 
 ing of laws, within their constitutional powers, is con- 
 cerned. Nor does this involve the absurdity of two supreme 
 powers in the state, viz. the legislature and the people, 
 since, diverso intuitu, they may both be supreme. In 
 England, moreover, legislative power has its political, as 
 well as moral or natural limitations; and legislative power, 
 I presume, is no more inherent in parliament than in our 
 own legislative bodies, though there may be a greater num- 
 ber of positive limitations on the powers of the latter than 
 on those of the former. The theory of the British consti- 
 tution is essentially the same as our own in this respect, 
 viz. that all legislative power originally flows from the peo- 
 ple. It is consequently not easy to perceive how it can be 
 justly predicated that in the American states supreme pow- 
 er resides in the people, but in England in the legisla- 
 ture. In both countries it may be said that supreme 
 power and legislative power are convertible terms. 
 
 Mr Tucker having argued this point with his usual abi- 
 lity, prefers Justinian's definition: 'Jus civile est quod 
 sibi quisque populus constituit;' the word 'populus' refer- 
 ring to the source of the entire body of laws and institu- 
 tions, from whatever authority derived; whether immedi- 
 ately from the people, or mediately through their legislature, 
 or from long usage: whereas Justice Blackstone's definition, 
 as explained by himself, refers them all to the legislature, 
 
 • 1 Tuck. Black. Comm. 46, 48, notes 4, 5. 52 note 9. 53 note 10, and 
 appendix A.
 
 270 °F LAW, [Lect. VII. 
 
 all customs and unwritten laws being supposed to have 
 sprung from positive legislation, the memorials of which 
 have ceased to exist. That a Constitution is a law, we are 
 not disposed to deny; but a constitution must be presumed 
 to have originated from the people, before the legislature, 
 in common with the other organs of the future government, 
 went into operation. But after the government is consti- 
 tuted or organized, the legislature may be the supreme 
 power in the state, though it be not omnipotent; unless the 
 people should have reserved to themselves in all cases 
 a constitutional veto, when they, in truth, would be the 
 legislative power, and thus supreme in every sense. As 
 to the customs and unwritten laws, they are not per se 
 laws; they only become so when established as valid by 
 the judicial power, which itself springs from the legisla- 
 tive power, or from the constitution. Neither in England 
 nor in this country do the people make, nor can they make 
 customs laws. 
 
 (5.) Proposed de- Having examined the foregoing defini- 
 finitions. tions with some care, and stated with 
 
 freedom such objections to them as we believe to be sound, 
 it is natural to feel a hesitation in submitting our own 
 views as to the proper definitions of law. We shall do so, 
 however, without an attempt to vindicate them, as they 
 ought to share the fate of others should they be obnoxious 
 to any of the objections already suggested as to those com- 
 monly in use. 
 
 1. Law, in its most abstract and comprehensive signifi- 
 cation, consists of that system of rules to which the intel- 
 lectual and physical worlds are subjected; either by God, 
 their creator and preserver; or by man, when invested 
 with competent authority so to do; by which the existence, 
 rest, motion and conduct of all created and uncreated enti- 
 ties are regulated, and on the due observance of which 
 their identical being or happiness respectively depends.
 
 Lect. VII.] AND ITS GENERAL PROPERTIES. 271 
 
 2. A^ law (meaning any law) is likewise an abstract 
 term, and signifies some rule of action regulating matter or 
 mind, a created, or uncreated entity; ordained either by 
 God, or man having authority so to do, by which the ex- 
 istence, rest, motion or conduct of such entities respective- 
 ly is regulated, and on the due observance of which the 
 identical existence or happiness of each depends. 
 
 3. 'The Law' (not meaning a single or definite law) is 
 an expression that ordinarily excludes physical laws, and 
 also those affecting other intelligences than man, in which 
 sense, as an abstract term, it embraces, first, the totality of 
 rules for the moral regulation of human economy, either na- 
 tional or individual, established by the universal Sovereign, 
 and ascertained by his Revelations, by reason, conscience, 
 or otherwise: secondly, those prescribed and promulgated 
 by lawful human superiors for the government of men as 
 citizens; and lastly, those ordained by the consent, ex- 
 press or implied, of sovereign states for the guidance of 
 national conduct, and of international communion; to all of 
 which rules those respectively to whom they are directed, 
 are obliged to make their several actions conformable. 
 
 4. Civil or Municipal Law signifies those rules of civil 
 conduct which are prescribed and promulgated by the law- 
 fully constituted supreme power of a state; some com- 
 manding what shall be done; some designating what shall 
 not be done; and others pointing out what may be done 
 or omitted at the election of those to whom they are res- 
 pectively directed; all of which rules are obligatory, and 
 are enforced by sanctions, express or implied. 
 
 5. A civil or municipal law is a particular or single rule 
 of civil conduct, prescribed and promulgated by the law- 
 ful supreme power of a state; commanding something that 
 shall be done, designating something that shall not be 
 done, or pointing out something that may be done or 
 omitted at the election of those respectively to whom it
 
 272 O? LAW, [Lect. VII. 
 
 is directed; which rule is obligatory on them, and is en- 
 forced by some sanction, expressed or implied. 
 
 (6 .) Properties of In treating the properties of Law, they 
 Law, how divided. m ay be considered as internal and ex- 
 ternal. Those which are implied ex vi termini are inter- 
 nal or inherent properties of a law; such as that it be a 
 rule; that it emanate from a lawful superior; that it cre- 
 ate an obligation; that it involve a sanction, &c. The 
 external properties are those which respect its utilities, 
 or the motives for its enactment; the objects which are to 
 be affected by it, &c; as, for example, that its object be a 
 possible and reasonable one; that it be of a legal nature; 
 that its prohibitions be not needlessly multiplied; and 
 finally, all those external considerations which constitute 
 the philosophy of legislation. 
 
 In the following remarks on the properties of law, I shall 
 not use that term in its most extended sense, but only as ap- 
 plicable to intelligent and responsible beings, and as creative 
 of an obligation flowing from law in the popular sense of 
 that word. Every rule indeed from which any entity 
 whatever cannot, will not, or ought not to deviate, is a 
 law; and this embraces not only physical rules, but coun- 
 sel, advice, a transient order, a promise, a covenant or 
 compact; all of which create obligations, and, in one sense, 
 are so many laws. But laws, in their more restricted 
 meaning, the properties of which I am about to consider, 
 do not ordinarily embrace any of these. 
 
 „ , - First. Law is a rule. 1. This term 
 
 (1.) Of the Inter- 
 nal or Inherent pro- is said to indicate the universality and 
 perties of Law. perpetuity of a law, thereby distinguish- 
 
 ing it from a transient order made by a lawful superior, 
 and from a sentence, which concerns a particular person 
 only. It is said that an act of the legislature to confiscate the 
 goods of Titius, or to attaint him of treason, is not a law, 
 but a sentence only that Titius, in consequence of having vio-
 
 Lect. VII.] AND ITS GENERAL PROPERTIES. 273 
 
 lated some existing law, has subjected himself to a legisla- 
 tive declaration, sentence or decision, by which the penal- 
 ty of the violated law is merely ascertained and enforced; 
 and that the act is not properly a statute nor law, nor done 
 in the exercise of legislative power- But an act of the le- 
 gislature, though it concern but few persons, or a single 
 one only, is still a law, the above doctrine applying only 
 to a quasi judicial sentence, pronounced by a body which 
 ordinarily concerns itself only in legislation. Thus an 
 act of the legislature which enables an infant or a feme 
 covert to convey lands; which divorces A from B; which 
 gives validity to a defective conveyance, &c. is as much a 
 law as one which forbids universally the exportation of 
 corn. 2. Law is said to be a rule to distinguish it from 
 counsel or advice, which, though it may be a means of 
 bringing conviction to the mind, cannot per se create an 
 obligation. Advice is optional, law is imperative; the 
 language of the former is that of persuasion; that of the 
 latter is a declaration of the lawgiver's will.* Counsel 
 offers reasons with a view to create obligation; law acts di- 
 rectly, and presumes that reason coincides with power. t 
 3. It is said to be a rule to distinguish it from a compact 
 or covenant. Among the democratic nations of antiquity, 
 nothing was more usual than to speak of laws as compacts 
 or covenants; this idea entered into their very definitions 
 of law; and sometimes affected even the formulae of mak- 
 
 *Puff. N. N. book 1, chap. vi. sec. 1. Hobbes De Cive. cap. 14, sec. 1. 
 
 | 'Law does not teach, but commands what is to be done.' This is the 
 language of Lycurgus, among the most ancient of lawgivers. Law and 
 reason have much to do with one another; but the former does not cease 
 to be obligatory by being either unreasonable or inconvenient, if it be not 
 malum in se. Hence it is aptly said by the civilians, that the 'currency of 
 the law is not to be disputed, though time had in a great measure worn 
 down the image, and damaged the superscription.' 1 shall have occasion 
 to remark on this doctrine hereafter. 
 
 .Jo
 
 274 > ov LAW, [Lect. VII. 
 
 ing their laws; or perhaps these formulas gave rise to 
 the idea of laws being strictly compacts. Laws being 
 sometimes made in the form of a Stipulation and Ac- 
 ceptance by the people, were called agreements. But 
 even when made in this mode, they are not compacts, 
 this being nothing more than the manner in which the su-. 
 preme power indicates its will. That power was in the 
 majority of the people; but when the law was promul- 
 gated, it obliged not only the majority, but the minority 
 also. In all cases, the original authority to make laws, be 
 it vested in whom it may, must have flowed from consent 
 or agreement; and even if this original act had been by 
 the unanimous consent of the members of the community, 
 it would not follow that the laws subsequently made by 
 that power, are to be regarded as compacts. In all com- 
 pacts, the obligation is of our own direct and express crea- 
 tion. Their language is, 'I agree to do or not to do, to 
 possess or not to possess;' whereas that of law is, 'Thou 
 shalt or shalt not do; thou shalt or shalt not possess.'" 
 
 Secondly. Law is a rule of action. In the restricted 
 sense in which we now use the word law, action compre- 
 hends only the moral and civil conduct of man. The 
 former is regulated by the laws of God and of nature; the 
 latter is the peculiar object of human legislation. But 
 moral conduct is sometimes the subject of civil laws, as 
 where they restrain luxury, inebriety, religious creeds &c. 
 These in their effects often operate prejudicially on others, 
 and do not terminate in the person of the agent, and in 
 such cases become the proper object of the civil law. 
 Vices which are purely private have seldom been med- 
 dled with by positive legislation; the difficulty has been to 
 ascertain the exact limits which separate the one class from 
 
 Arist. Rlict. hook I. cap. 1,'2, 15. Dion. Malic, lib. 10. Taylor's Civ. 
 Law, 153. I Black. Com. 45.
 
 Lect. VII.] AND ITS GENERAL PROPERTIED 275 
 
 the other. Superstition and arbitrary power have too often 
 confounded them; and though Demosthenes has eloquently- 
 said that Maws are the morals of the state,' they become 
 the most odious tyranny when they invade the sanctity of 
 private opinion, and presume to dictate even rules for the 
 palate; as Zaleucus did when he restricted, under the pe- 
 nalty of death, the use of pure wine to the sick, and to 
 them only when the physician's certificate could be obtained. 
 
 Thirdly. Law is a rule of action prescribed and promul- 
 gated. It is obligatory only on those who know the fact 
 of its existence, and therefore must be promulgated. It 
 imports a definite order, and must therefore be plainly 
 prescribed, that it may be understood. 
 
 Natural law is inscribed on the heart of man 'by the 
 finger of God;' and is promulgated or ascertained from di- 
 vine revelation, the light of reason, conscience, senti- 
 ment &c* 
 
 Human laws should not only be prescribed in clear and 
 unambiguous language, but be efficiently promulgated, or 
 conveyed to the knowledge of those on whom they are to 
 operate. We have seen that Hobbes considers both so es- 
 sential to the just notion of law, that he has made them a 
 part of his definition of that term. By the former is not 
 meant that laws should be written out, as the word 'pre- 
 scribe' would seem to import; but merely that they be 
 conveyed in language as free from ambiguity as possible, 
 be it verbal, written or printed. In regard to the promul- 
 gation of laws, justice demands that they be made known 
 before they become obligatory. The liberty and property 
 of the citizen may indeed be placed in peril by the vague 
 and unintelligible language of the laws; but much more 
 would this be the case were laws permitted to operate 
 
 * Vide post 313, 319, where the various theories as to the ascertainment 
 of the dictates of the Jus Natural, are considered.
 
 27H OF LAW ; [Lect. VII. 
 
 without due promulgation; and still greater would be the 
 jeopardy of all that is dear to man, were actions innocent 
 when done, and rights vested agreeably to existing laws, 
 made penal or void by laws subsequently enacted. It is 
 consequently a principle of universal jurisprudence, that 
 laws, civil or criminal, must be prospective, and cannot 
 have a retroactive operation. And though the Constitu- 
 tion of the United States,* in its prohibition of ex post 
 facto laws, has been construed to extend only to criminal 
 laws, yet this is only declaratory of a principle sanctioned 
 no less by the common law of England, than by universal 
 law; and the same principle enables the courts to disregard 
 civil laws of this description, as equally inoperative, though 
 not within the letter or spirit of the particular clause re- 
 strictive of ex post facto laws, t 
 
 Although there are English authorities which recognize 
 the injustice and invalidity of express retrospective legis- 
 lation, and also the propriety of a formal promulgation of 
 laws before they become effective; yet it is a received doc- 
 trine in that country, that laws which operate in that man- 
 ner by implication of law, and of which there has been 
 no such promulgation, are nevertheless valid. Before the 
 introduction of printing into England, the statutes of each 
 
 * Art. 1. sec. 9, 10. 
 
 f Bracton lib. 4, fol. 228. Digest 50, 17, 75. Code 1, 14, 7. Taylor's 
 Civil Law, 168. Bacon's Abridgment, 6 vol. 370. Statute (C.) 2 Institute 
 292. 1 Black. Cora. 46. Coke Litt. 360. Gilmor v. Shuter, 2 Modern Rep. 
 310. Bacon De Augm. Scient. lib. 8 cap. 3. Puff. N. 8f N. book 1, ch. 6. 
 sec. 6. 4 Burrow's Rep. 2460. 2 Shower's Rep. 17. Calder v. Bull, 3 Dal- 
 las' Rep. 386. Ogden v. Blackledge, 2 Cranch's Rep. 272. Wilkinson t. 
 Myer, 2 Lord Raymond's Rep. 1352. Ham v. McClaws, 1 Bay's South Car. 
 Rep. 93. Osborne v. Hager, same, 179. Bowman v. Middleton, same, 252. 
 Dash v. Van Kleeck. T. Johnson's N. York Rep. 477. Society v. Wheeler, 
 2 Gallison's Rep. 103. Dartmouth College v. Woodward, 4 Wheaton's 
 Rep. 518. 2 Coke's Institute, 526. 4 Inst. 25. 1 Plowden's Comm. 79. 1 Le- 
 vinz' Rep. 91, 6 Brown's Parlia. Cases, 553. Latless v. Holmes, 4 Durnf. & 
 East's Rep. 660.
 
 Lect. VII.] AND ITS GENERAL PROPERTIES. 277 
 
 session of parliament were usually sent to the sheriffs of 
 the counties, and proclaimed by them publicly. This 
 practice, however, ceased in the time of Richard II. Some 
 statutes are appointed to be read in their churches and 
 other public places; and they are often printed in their 
 newspapers, and in other forms; but the English law has 
 not provided any general mode of promulgating laws, nor, 
 indeed, was promulgation of any kind ever deemed es- 
 sential, even when the sheriffs &c. were required to pro- 
 claim them. Strange as it may seem, every statute, until 
 very recently, was obligatory from the first day of the 
 session of that parliament in which it was made, unless a 
 particular time for its commencement were fixed by the 
 statute. This rule was based on the refined notions, first, 
 that every subject is, in judgment of law, a party to the 
 making thereof, by his representatives;* and secondly, 
 that the whole session must be regarded as but one day, 
 for which, however, no reason has been assigned even as 
 s:ood as the forced one first mentioned. The mischief and 
 absurdity of this doctrine having become too manifest for 
 endurance, were considerably mitigated by the statute 33 
 George III. c. 13, which provides that when no time is 
 fixed, statutes shall commence their operation from the day on 
 which they receive the royal assent. This statute, however, 
 only lessened the period in which legislation could operate 
 retrospectively; but as important rights and innocent actions 
 intervening between the day of the royal assent and the 
 actual promulgation of the law, are affected by the law; 
 and, moreover, as statutes need no promulgation at all; the 
 doctrine, as it now stands, is at variance with natural jus- 
 tice, and the principles of universal jurisprudence. Pro- 
 mulgation however, though legally essential, would not re- 
 quire that actual knowledge of the law should be brought 
 
 * 1 Black. Com. 178. 3 Reeves' Hist. Eng. Law 147. 6 Bacons' Abr. 369. 
 Bentham's Fragment on Gov. xxvii.
 
 278 OF LAW, [Lect. VII. 
 
 home to the individual to be affected by it. All that is 
 ever meant by the promulgation of a law is, that it shall be 
 duly made, and in such a manner that it may reach those 
 on whom it is designed to operate; for when the ordinary 
 means of promulgation have been used, every one is pre- 
 sumed to be cognizant of the law; according to the maxim, 
 'ignorantia juris non excusat. '* 
 
 The English doctrine in regard to promulgation has been 
 adopted in this country; and though at variance with the 
 clearest principles of justice, it is perhaps too firmly es- 
 tablished by judicial decisions to be shaken, and can only 
 be remedied by some adequate legislative provisions. Or, 
 in cases of peculiar hardship, it lays the foundation for a 
 claim on the justice of the legislature to refund what is ex- 
 acted under such a prospective law, and to indemnify those 
 who are prejudiced by it. If an act of congress be silent 
 as to the date of its operation, it commences from the pas- 
 sing of the act, even though it be a penal one; and it ope- 
 rates on all rights and actions then existing, though the 
 law were not only unknown, but impossible to be known 
 by those to whom it is directed.! But in Patten's casej 
 
 * Although the laws of Rome were said to be made populi ju*su, yet 
 promulgation was deemed essential, since they generally proceeded ex 
 auctoritate senatus; and all edicts &c. were duly published. How different 
 this from the odious conduct of Caligula, who is said to have written his 
 laws in such small letters, and fixed them on such high places, that it was 
 impossible they should be read. The Senatus-Consultum Marcianum, 
 which was discovered at Naples in the year 1640, was engraved on a bra- 
 zen plate, and contained the following provision. 'It is further ordered 
 by this decree, that these presents be published for three successive mar- 
 ket days, in your common assemblies, to the intent that you may well un- 
 derstand the pleasure of the Roman senate; and it is likewise ordered 
 that you engrave this decree upon a brazen tablet, and that you cause it to 
 be hung up where it can be most easily read;' a provision, the spirit of 
 which should guide the legislative councils of England and this country, in 
 neither of which does the doctrine of promulgation seem to form an essen- 
 tial part of jurisprudence. 
 
 t The Brig Ann. 1 Gallison's Rep. 62. 
 
 } l Dane's Abrid". 5S7. s. 10.
 
 [Lect. VII. AND ITS GENERAL PROPERTIES. 219 
 
 the court held that an act of congress which had laid an 
 additional duty 'from and after the passage of the act,' ex- 
 cluded the day of its passage. 
 
 Fourthly. The next inherent property of law to be 
 considered, is sanction. The terms sanction, motive, ob- 
 ligation and punishment being intimately connected in the 
 legal notion of a law, have often been strangely con- 
 founded, and have given rise to much casuistical and meta- 
 physical discussion. When attentively considered, howe- 
 ver, they will be found to convey very distinct ideas, as 
 may be made obvious perhaps without much subtile in- 
 quiry. 
 
 Man, as an intelligent being and a free agent, is guided 
 in all his actions by reason, or what he takes to be such. 
 He is operated upon by motives; and they all lead him to 
 seek pleasure, and to avoid pain. These are the final 
 causes of every obligation to which man is, or conceives 
 himself to be subjected. Sanctions are the prospective 
 pains or pleasures that lead men to act, or to refuse to act; 
 they are the sources of obligation, and though properly 
 distinguishable from motives, they only differ from them 
 as a causa causans does from a causa causata. It is 
 usual to divide sanctions into four classes, in reference to 
 the principal sources of pleasure and pain; these are called 
 physical, moral, religious and legal, a brief explanation 
 of which may be necessary. 
 
 1. Physical Sanction is some prospective corporal evil 
 or bodily suffering, the usual result of violating the laws of 
 our physical constitution. 
 
 2. Moral Sanction is the violence that will be done to 
 our conscience, moral sensibility, or regard for virtue; the 
 ordinary result of our violating the dictates of right rea- 
 son, the moral sense, or whatever may be the source of our 
 knowledge of right and wrong.
 
 2S0 OF LAW, [Lcct. VII. 
 
 3. Religious Sanction is some evil in this or the life 
 to come, which we believe will be consequent upon the 
 commission or omission of certain actions (if not repented 
 of) forbidden by the law of God. 
 
 4. Legal Sanction is some threatened evil, whether cor- 
 poral or mental, made expressly consequent on the neglect 
 of some positive requisition of a human legislator. 
 
 There appears, however, to be another source of plea- 
 sure and pain, not comprehended within the just notion of 
 either of the preceding sanctions, and that is the value we 
 place on the estimation of our friends and the world at 
 large. The moral sanction seems to embrace only matters 
 of conscience; but there are matters of honour, fame, re- 
 putation, vanity &c. which actuate extensively our conduct, 
 and yet affect in no degree our conscience. Hence, we 
 think, there should be a distinctive name for that sanction 
 which leads us to covet the good will of those around us, 
 and of men generally; and this may be denominated the 
 social sanction. Those philosophers who refer every act 
 to some selfish principle, speak of selfish obligations, and 
 consequently of selfish sanctions; but this, we apprehend, 
 is manifestly incorrect, as they resolve all others into this, 
 and therefore a distinctive name is unnecessary. 
 
 To illustrate the operation of these several kinds of 
 sanction, we may contemplate the situation of a man of 
 refined sensibility, religious and moral principles, regard- 
 ful of health, beloved by wife, children and friends, and 
 possessed of ample means to enable him fully to enjoy 
 every blessing. By one of those fatalities to which the 
 best of men are sometimes subject, he becomes intemperate, 
 loses his nice sensibilities, is regardless of religious mo- 
 tives, forfeits the love and esteem of those around him, 
 and with them his health and property. He is subjected 
 to an interdict under the law which declares confirmed 
 sots >w)i sui juris-, and .•subjects them to solitary confine-
 
 Lect. Til AND ITS GENERAL PROPERTIES. 281 
 
 ment. In that deplorable condition his thoughts are di- 
 rected inward; reflection at one view presents to him the 
 pleasures he has forfeited, and the pains, present and fu- 
 ture, that are consequent on his vice. The physical sanc- 
 tion admonishes him that persistence in his infirmity 
 must terminate in death. The moral and social sanctions 
 bid him remember the charms of friendship, the bliss of 
 conjugal life, the value of reputation, the glory of his 
 former fame; all of which may not be irretrievably gone. 
 The religious sanction adds its powerful appeal, thunders 
 its dreadful comminations, and whispers its inviting pro- 
 mises. Lastly, the legal sanction presents the horrours of 
 a prison, secluding him from every thing but his own ago- 
 nizing feelings. The complete operation of these puni- 
 tory and remunerative sanctions ends in a confirmed sense 
 of obligation, and with that his vice is forever aban- 
 doned. 
 
 Sanctions may be called the threatened evils, and pro- 
 mised goods of the law; they operate as motives produc- 
 tive of obligation, or the state of being bound; and when 
 disregarded, are followed by •punishments, which are 
 nothing more than the executed sanctions of the law. 
 Sanction, motive, obligation and punishment are correla- 
 tive terms; and as the first of these may be divided into 
 five classes, the others, in like manner, may be distinguish- 
 ed as physical, moral, social, religious and legal. The 
 avowed object of human laws is to operate by the civil or 
 legal sanction; but this is by no means the full extent of 
 their operation in fact, or of the sound theory on the sub- 
 ject. Nor do the divine and natural laws enforce obedi- 
 ence solely through the religious and moral sanctions. 
 Laws, human and divine, may have express sanctions, 
 and yet be operative mainly in virtue of other sanctions. 
 A civil law, for example, which prohibits adultery under 
 the penalty of a heavy mulct, is greatly aided by the 
 36
 
 382 OF LAW, ILectVn. 
 
 moral, religious and social sanctions, especially by the lat- 
 ter. The human prohibition is merely declaratory of na- 
 tural and divine law, and cumulative of their sanctions. 
 The same remarks apply to actions forbidden by the divine 
 and natural law, but which are not cognizable under any 
 civil law; in which case the social unites with the moral 
 and religious sanctions to prevent their commission. In 
 regard to offences" purely legal, usually denominated mala 
 prohibitum and which are purely indifferent under the jus 
 naturae, it has been questioned whether they bind the 
 conscience at all. On this point Mr Justice Blackstone 
 has expressed, we think, an unsound, and certainly a very 
 unsalutary doctrine. 
 
 The opinion of the learned commentator is, that they 
 have no concern whatever with the conscience, and that 
 such laws merely offer to the subject the alternative 
 of obedience to the law, or submission to its penalties.* 
 I am not disposed to enter into this controversy, especially 
 as it has been so ably refuted by Mr Sedgwick in his 
 Critical Remarks on the Commentaries;! and also by 
 Judge Tucker in one of his learned annotations. % 
 
 Compliance with law not being optional, sanction of some 
 kind, express or implied, must be an essential ingredient 
 in every law. Even when the motive which prompts to obe- 
 dience is wholly remunerative, as is sometimes the case 
 with a law, the proffered reward may be justly considered 
 as a sanction, since the loss of a possible gain, which \s 
 consequent on disobedience, may considerably affect the 
 state or happiness of those who disregard the law; and, on 
 the other hand, may operate as a powerful inducement 
 with others to respect it. This, however, does not seem 
 to justify the idea of Bishop Cumberland, § that all laws 
 
 * 1 Black. Com. ST. ♦ Sedgw. Cri. Rem. 52 to 64. 
 
 ♦ 1 Tucker's Blcek. .SR. § Do Leg. Nat. Proleg. see, U and cap. 6, see. 40.
 
 L«ct. VII.] AND ITS GENERAL PROPERTIES. 233 
 
 may be considered as sustained rather by remunerative 
 than punitory sanctions. He supposes that even where 
 death is the penalty of a law, our life is preserved to us 
 by obedience, and that we respect the law rather from 
 the love of life, and for the preservation of a good, than 
 from the desire of escaping the evil of death; and so in all 
 other cases, respect for the laws secures to the compliant 
 its appropriate reward. The brief reply to this doctrine 
 is, that by a remunerative sanction we mean some good or 
 reward directly consequent on obedience to a law, and 
 which is purchased, as it were, by such compliance; and 
 not the retention of any good previously our own, and of 
 which we are merely permitted the continued enjoyment 
 if we respect the behests of the law. So essential to the 
 just notion of a law is sanction, that the civilians generally 
 would not admit the possibility of law's subsisting without 
 one. Hence was it that Leges were often called by them 
 sanclx; not from any presumed sanctity inherent in laws, 
 but because they are made binding by the penalty that 
 awaits their infraction. Proprie dicimus sancta quae 
 ncque sacra neque profana sunt, sed sanctione quadam 
 confirmata; ut leges sanctae sunt.'* And it is a principle 
 of the common law of England, that where a law has omit- 
 ted to declare any sanction, the courts are authorized, 
 in the exercise of a sound or legal discretion, to punish 
 the offender, usually by fine and imprisonment. In the 
 Roman and other codes, instances are stated of laws in 
 which no sanction is expressed; and a few in which scarce- 
 ly any can be implied. These are called imperfect laws. 
 Inter leges quoque ilia imperfecta esse dicitur, in qua nulla 
 deviantibus poena sancitur.t Thus the Lex Cicinia annex- 
 ed no other sanction than that its violator should be held to 
 have done wickedly. But Puffendorf, on the authority of 
 
 * Dig. 1. R. 9. S. i Macrob. in Somn. Scipi. c. n.«; IT.
 
 284 or LAW, [Lect "VII. 
 
 Tacitus and Cicero, is of opinion that the Censors possessed 
 the power to enforce the law by some substantive punish- 
 ment; and if not, that the infamy consequent upon diso- 
 bedience, was of itself a penal sanction.* The same 
 remark applies to the Valerian law, which merely declared 
 that its violation should be deemed a wicked act. Livy 
 observes on this, 'I suppose it was judged of sufficient 
 strength to enforce obedience to the law in those days; so 
 powerful was then men's sense of shame: at present one 
 would scarcely make use of such a threat seriously, even 
 on any ordinary occasion. 't Of the same description are 
 various laws mentioned by Diodorus Siculus, which are 
 remarked on by Puffendorf and others; such as that of 
 Zaleucus, 'Let the citizen who prosecutes his enemy with 
 implacable violence, be deemed a man of a barbarous dis- 
 position'.'' and other ancient laws, as, 'Let no free woman, 
 unless she be drunk, be attended by more than one maid.' 
 'Let no man wear a gold ring, or be clad with splendour, 
 unless he has been guilty of adultery.'' These were cer- 
 tainly effectual means of guarding against the evils of lux- 
 ury, and were probably the most powerful sanctions that 
 could have been justly annexed to such laws. 
 
 Fifthly. We are now to inquire into the nature of Obli- 
 gation, a property inherent in every law, and essential to 
 its existence. Not that laws invariably insist on the actual 
 execution or omission of the things commanded or forbid- 
 den; on the contrary, they generally insist merely on the al- 
 ternative of obedience, or of submission to their sanctions. 
 
 The term obligation has given rise to much cunning 
 learning, and refined casuistical discussion. The true de- 
 finition of the term; its various kinds, as internal, exter- 
 nal, perfect, imperfect; its species, as religious, moral, phy- 
 
 * Tacit. Ann. book XIII. Cicero de Leg. lib. 2, cap. 9. Puff. L. N. N. 
 lib. 1. cap. vi. sec. xiv. 
 
 f Baker's Livy, book 10 chap, ix-
 
 Lect. VII.] AND ITS GENERAL PROPERTIES. 285 
 
 sical, civil, social &c; the true theory of its source or 
 origin; how it is distinguished from motive, how from sanc- 
 tion; on what it is founded; how it differs from com- 
 pulsion; whether there be degrees of obligation, &c; are to- 
 pics that have engaged the attention of philosophers from 
 the days of Plato and Aristotle, to those of Stewart and 
 Cogan. It is far from my design to enter at large on any 
 of these mooted questions; it is sufficient that the student 
 be apprised of them, and that we present to him some of 
 the more useful results in which these discussions have 
 terminated, together with the leading sources of informa- 
 tion on all these points. 
 
 The word obligation is often used in a popular sense as 
 synonymous with motive; thus we say, 'the obligations 
 are strong,' meaning thereby that the motives or induce- 
 ments to do or to omit an act, are strong. But obligation, 
 in its metaphysical and true sense, admits of no degrees nor 
 divisions; it is a state, in which a free agent is placed after 
 a judgment is formed by him, on all the motives that are 
 presented to his mind on either side of the point to which 
 the obligation relates. Obligation, therefore, being an 
 effect, a judgment or conclusion of reason, admits of neither 
 degrees nor divisions. An inducement or motive, on the 
 other hand, is a mere cause. It is any thing which contri- 
 butes to the production or prevention of an action, and 
 is therefore infinitely various in its nature and degrees. 
 Sanction differs from obligation as cause does from effect: 
 an obligation is a tie, a sanction is a motive productive of 
 that tie; the latter serves to bind, the former is the state 
 of being bound. The source of obligation, or the reason 
 why a free agent is morally bound in any case, has been a 
 question of much supposed difficulty. The theories on the 
 subject are numerous, and, like most others, are generally 
 obnoxious to the objection, that they repose on some single 
 and pervading principle as the fountain of all obligation;
 
 286 OF LAW. [Lect. VK. 
 
 in like manner as the power of moral discrimination ha^ 
 been referred by various philosophers to some single and 
 independent source, instead of being referred to most of 
 them combined, or to all of them. So various have these 
 theories been, that Lord Kaimes jocosely remarks that an 
 account of them would be a 'delicate historical morsel;' 
 and Mr Bentham amuses himself at their expense by enu- 
 merating the phrases that characterize the several systems, 
 and briefly commenting on each, in such a manner as to 
 place in high relief their refined absurdities.* 
 
 A man is said to be obliged to abstain from injustice of 
 any kind, when the motive or motives which gain the 
 ascendancy over any counter motive or motives, are accom- 
 panied by a conviction that it is, on the whole, better for 
 him to proceed according to the rule prescribed to him, 
 than to disregard it. 
 
 But whence these motives proceed, how they are ascer- 
 tained, and why they are obligatory, constitute the diffi- 
 culty so long inquired into. By some philosophers it is- 
 said that we are bound in all cases by the 'Moral Sense;' 
 others say by 'Common Sense;' by the 'Eternal Fitness' of 
 things; by the 'Understanding;' by the 'Rule of Right;' 
 by the '&ove of Truth;' by 'Utility;' by the 'Law of 
 Nature;' by the 'Will of God;' by 'Instinct;' by 'Inter- 
 nal Sensations;' by the 'Inductive Principle;' by 'Self-In- 
 terest;' by 'Benevolence;' by 'Love towards God;' "by 'Gra- 
 titude' for former favours received; by 'Inspiration;' by 
 reason of being one of the 'Elect;' by a 'Sentiment of 
 Obligation,' &c. &c.t 
 
 * Bentham's Prin. of Mor. and Legis. xiii. 
 
 t Cogan's Ethical Questions, 341 to 410. Ellis' Dissertation on Obliga- 
 tion. Burlamaqui's Institutes, N. Law. Part i. ch. vi. sec. ix. ch. viii. sec. 
 xi. Paley's Mor. and Pol. Philo. book 2. Puff, book 1, ch. vi. sec. v. vi~ 
 Good's Book of Nature, vol. 2, lee. vi. 3 Reid's Inqui. ch. vi. vii. viii. Beat- 
 tie on Truth, part 1, ch. iii. lee. vii. Stewart's Essays, p 123. 2 Ruther- 
 forth's Insti. 219, sec. S, 4, 5. Ruth, Essay on Virtue, ch. vii.
 
 Lect. VH.j AND ITS GENERAL PROPERTIES. 287 
 
 Notwithstanding the mass of learned and subtile inquiry 
 which marks the progress of the questions concerning the 
 source of obligation, I cannot persuade myself that they 
 are attended by that intrinsic difficulty which justifies the 
 labour bestowed on them. It appears to me that the ra- 
 tionale of all that is really useful in the inquiry must be 
 built on a few undeniable postulates, which may perhaps 
 be stated as follows. 
 
 1. That some things are, by a law of man's nature, pre- 
 ferable to others. 
 
 2. That among these, happiness is preferable to misery; 
 and so of the degrees of each. 
 
 3. That man is so constituted by nature as to pursue 
 happiness, or what he conceives to be such, in preference 
 to misery; and so of the degrees of each. 
 
 4. That God has endued man with reason, conscience, 
 instinct; and has added to these revelation; and man, by 
 means of them all, has gained knowledge or experience; 
 through the instrumentality of the whole of which he is 
 enabled to ascertain with a certainty equivalent to demon- 
 stration, the things which contribute to happiness, or lead 
 to misery; and so of the degrees of each. 
 
 5. That when these several means, (and in some cases 
 less than all) are brought to operate on any question of 
 duty, a judgment is eventually formed, accompanied by a 
 conviction that, if this judgment be disregarded, he merits, 
 or certainly will suffer, some evil greater in amount than 
 any which can flow from compliance with the judgment. 
 
 6. That the operations of the human mind, (in many 
 cases the result of habit) are sometimes inconceivably ra- 
 pid; giving to the conviction of obligation the appearance 
 of intuition, moral sense, instinctive sentiment, &c. 
 
 The definitions of obligation have been as various as the 
 explanations of its origin. I shall not refer to any of them, 
 but endeavour to define the word in two ways, either of
 
 2SS OF LAW, [Lect VII. 
 
 which, it is hoped, will sufficiently indicate my general 
 views as to its nature origin and kinds. 
 
 1. Obligation is a duty imposed on a responsible being 
 by the judgment or conviction of his own mind, ascertain- 
 ed by the means of reason, conscience, instinct, revelation 
 or experience; the person being affected by a selfish, social 
 or religious impulse or motive, (or by some or all of them 
 united;) and by the due observance of which he knows or 
 believes that his happiness is in some degree to be affect- 
 ed: or — 
 
 2. Obligation is the state of being bound, of which an 
 intelligent and free agent is conscious; in which he believes 
 that a defined thing, enjoined or forbidden by a known 
 and competent power, must be done or avoided by him 
 in order to escape some prospective evil consequent on dis- 
 obedience; and which, in his estimation, is greater than 
 any that can arise from obedience. 
 
 Obligations are said to be internal, external, perfect and 
 imperfect. 
 
 I am inclined to think that all obligation is, properly 
 speaking, internal; for if the reason and conscience be in 
 no way implicated, it is mere compulsion, or physical ne- 
 cessity. So, also, all obligation, correctly speaking, is per- 
 fect; at least as to the person affected by the obligation. 
 But as these terms have a popular and useful signification, 
 it is proper to remark that by an internal obligation is 
 meant one that is mainly produced by reason and con- 
 science; and by external obligation is generally meant 
 that which is created merely by the will of a human legis- 
 lator. 
 
 Having explained sufficiently the nature of this impor- 
 tant property of laws, there remains a subject connected 
 with it, which has puzzled nearly all who have treated of 
 the morals and philosophy of jurisprudence; I allude to 
 the question whether Permissions are to be regarded as
 
 Lect. VII AND ITS GENERAL PROPERTIES. 289 
 
 laws. It appears to me, however, that neither the utility 
 nor the difficulty of the questijn merited the thought be- 
 stowed on it. What I have to say on it, therefore, will 
 be as brief as the point will admit. 
 
 There can be no question that the word 'permission' im- 
 ports, ex vi termini, nothing beyond a mere option in him 
 who enjoys the permission; and that every feature of ob- 
 ligation is necessarily excluded as to him. It is equally 
 clear that, if a permission be a right of any kind in him 
 who may claim its benefit, all others are bound to leave 
 him in its undisturbed possession, and consequently that, 
 as to such third persons, there is a law obliging them to 
 respect the permission claimed by another. But this does 
 not solve the difficulty, nor is it by any means to be ad- 
 mitted that the law which prevents such persons from in- 
 terfering with the permission, will give to permissions 
 themselves the character of laws as to any persons what- 
 ever. It is presumed that every conceivable permission 
 may be classed under one or the other of the following 
 heads. 
 
 1. Where a permission arises from the mere silence of 
 the law; that is, from the absence of all legislation on the 
 subject. 
 
 2. Where it flows from the circumstance that an affirma- 
 tive or negative law has failed to enumerate the case 
 claimed as a permission; this non-enumerated case may be 
 called a permission by implication of law. 
 
 3. Where certain persons or things arc \y ex- 
 empted from the operation of a law. 
 
 4. Where a law grants an c^ xmissien, called a 
 privilege, to some particular person or persons; and pro- 
 hibits others from interfering with such permission or pri- 
 vilege. 
 
 In all the foregoing iaim the be- 
 
 nefit of the permission, is not oi whereas
 
 290 0F LAW, [Lect. VII. 
 
 all others are obliged to abstain from interrupting the per- 
 son claiming the exercise oi the permission. Still it can- 
 not be correctly predicated of permissions that they ob- 
 lige, or operate as laws on any one. For though others 
 are bound to respect them, they are bound, not by any part 
 or quality of the permission, but in virtue of a distinct law; 
 and though the prohibition be contained in the same sta- 
 tute, it is as distinct from the permission itself as if contain- 
 ed in another statute. The whole question, then, appears to 
 resolve itself into a mere point of verbal accuracy, and 
 though much nice and nearly incomprehensible learning 
 has been displayed on the point, I am unable to perceive 
 that any other positions can be extracted from it than, first, 
 that all permissions must necessarily be attended either by 
 an express or an implied law, inhibiting others from vio- 
 lating them; and secondly, that permissions themselves 
 can never be laws, either as to those who claim their bene- 
 fit, or as to others who would interfere with their exercise. 
 This view of the subject, so natural in itself, appears, as 
 far as I know, to have escaped the attention of those who 
 have written so extensively on the subject.* 
 
 s . of t[ie Ex _ I am now to examine the external 
 ternal properties of properties of law, so far at least as will 
 Laws - enable the student to comprehend the 
 
 general outline of a subject which embraces nearly the 
 entire philosophy of legislation; and which is consequent- 
 ly quite too extensive to admit of any thing more than 
 a statement of its prominent features. 
 
 No science is more recondite, no art more complex and 
 difficult, than that oi sound legislation. It demands an in- 
 
 * Ellis' Roman Law, 19 to 22, 111, 192, 281. 1 Campbell's Grotius, 14. 
 in nolis. Burlam. Inst. 100. 1 Ruther. Inst. N, L. 10 to 22. Puff". N. L, 
 book 1, cli. vi. itc. xv. Grotius de jure, 13. ac P. lib. 1. cap. 3. sec. ix, 
 and note 5. 2 Beatlie's Mor. Sci. US. Taylor's Civil Law, 17. 1?. Digest
 
 Lect. VII] AND ITS GENERAL PROPERTIES. ~ ; !'l 
 
 timate acquaintance, not only with the moral and physical 
 nature of man, but a thorough knowledge of the adsciti- 
 tiuus character of those in particular for whom the laws 
 are to be provided. A code of jurisprudence entirely 
 adapted to advance the happiness and prosperity of a nation, 
 would be the greatest effort of human skill and wisdom. 
 That laws ma)' promote the general prosperity with as lit- 
 tle sacrifice of individual good as possible; that they may 
 enlarge the intelligence and wealth of the community, 
 with a strict regard to its morals; that they may maintain 
 perfect subordination, without oppressive and trivial re- 
 strictions; and that they may regulate private conduct, 
 without invading the sanctity of private opinion, and bind- 
 ing to modes of faith; have been at all times, and in all 
 countries, the great desiderata of enlightened legislators, 
 philosophers and statesmen. Mr Bentham, in his work 
 entitled 'An Introduction to the Principles of Morals and 
 Legislation,' has entered largely into this very interesting 
 topic, in a manner, indeed, very peculiar, and a little 
 too eccentric for a work so grave and didactic. Mr Ben- 
 tham, with a view of presenting a general idea of the na- 
 ture and extent of the subject, has stated in his preface 
 what he conceives to be the proper topics and divisions of 
 a complete code, or Treatise on the Jurisprudence adapted 
 to the wants of a nation; his own work being mere prolego- 
 mena to a more extensive one, with which he designed to 
 favour the publick. That the student may have a like notion 
 of the subject, according to the views which I entertain on 
 it, I shall avail myself of Mr Bentham's divisions in 
 part, not adopting, however, his order, or his exact phra- 
 seology; and I shall also add considerably to his divisions, 
 so as to supply what occur to me as important omissions in 
 his arrangement. 
 
 The Principles and Objects of Legislation may be 
 applied to the following matters; which, if formed into
 
 ? C)3 OP LAW; [Led. VII 
 
 definitions, maxims, declarations, laws &c with that cau- 
 tion which wise heads, cultivated minds, and virtuous 
 hearts might bestow, could not fail to constitute a code of 
 jurisprudence which, if not perfect, might at least enable 
 nations, in time, to make their own nearly so. 
 The divisions of the Code may relate to 
 
 I. A clear and definite Terminology of the entire pro- 
 posed system of jurisprudence. 
 
 II. To matters establishing the Political State, or Con- 
 stitutional Laws. 
 
 III. To matters establishing the Constitutional Proce- 
 dure, or the means of conducting business in all the politi- 
 cal assemblies of the State, so as to attain, in the most or- 
 derly and efficient manner, the end of their institution; 
 the whole of which is embraced under the name of Politi- 
 cal Tactics. 
 
 IV. To matters promotive of Private Morals. 
 
 V. To matters promotive of Religion in general. 
 
 VI. To matters declarative and preventive of Crimes 
 mala i?i se, through the medium of penal sanctions. 
 
 VII. To matters pointing out, and preventive of Offen- 
 ces mala prohibit a, through the medium of penal sanctions. 
 
 VIII. To matters promotive of obedience to laws, 
 through the medium of remunerative sanctions. 
 
 IX. To matters regulating Criminal Procedure, from its 
 inception to its complete termination. 
 
 X. To matters of Civil or distributive justice in regard 
 to property in things corporeal, whether moveable or im- 
 moveable; and to the voluntary and involuntary acquisi- 
 tion and disposal thereof.*** 
 
 * It is proper here to apprise the student that, under the English and 
 American law, the distinction between things corporeal and incorporeal is 
 not founded (as it is in nature) on the tangible and visible quality of the 
 one, and the mere notional or mental existence of the other. Thus land, 
 money, houses, ships are in reality corporeal; sovereignty, the right under 
 a covenant or promise, a right of way, &c. are incorporeal. This is the
 
 IjUCt VII.] AND ITS GENERAL PROPERTIES. 293 
 
 XI. To matters of Civil or distributive justice in re- 
 gard to property in things incorporeal, whether affecting 
 moveable or immoveable things; and to the voluntary and 
 involuntary acquisition and disposal thereof. 
 
 XII. To matters regulating Civil Procedure, from its 
 inception to its complete termination, as far as it respects 
 things corporeal, moveable and immoveable. 
 
 XIII. To matters regulating Civil Procedure, from its 
 inception to its complete termination, as far as it respects 
 things incorporeal, moveable and immoveable. 
 
 XIV. To matters of Civil distributive justice in rela- 
 tion to things extra palrimonium, but in which there 
 may still be enjoyed valuable rights; as in the Ocean, Air, 
 Public Rivers, Liberty, Reputation &c. &c. and which do 
 not come within the terms' of any just definition of pro- 
 perty.* 
 
 XV. To matters of Finance and Publick Expenditure. 
 
 XVI. To matters regulating the communion between the 
 Nation and other States and Nations. 
 
 A philosophical legislator will have respect to a variety 
 of rules which have been ascertained by the experience of 
 ages, or by the ti priori reasonings of the wise and re- 
 flecting of various nations. These constitute the science 
 of legislation, and come under the head of the external 
 properties of law; some of the more important of which 
 are as follows. 
 
 1. Laws should be of a legal nature. 
 
 The violations of this rule are lobe found in some sump- 
 tuary laws; in those relating to mere private ethics; and in 
 
 distinction made by the Roman law, and pervades all the codes built on 
 that system. The English law, on the other hand, ranks land, houses and 
 other unmoveable property as corporeal; but furniture, money, ships, cat- 
 tle, and such like moveables, are classed neither with corporeals nor incor- 
 poreals. 
 
 * Property may perhaps be defined an exclusive right to some external 
 thing, corporeal or incorporeal, moveable or immoveable.
 
 294 OF LAW . [Lect. VII 
 
 a great number of frivolous regulations to be found in the 
 jurisprudence of most countries; such as the law that the 
 Ephori should wear beards; that the groom and his bride 
 should eat a quince together; that on the emancipation 
 of slaves, small bundles of hay should be thrown over 
 them, &c. 
 
 2. Laws should have a possible, reasonable and useful 
 object. 
 
 This rule needs no comment; the first and second parts 
 of it are obvious; the third means that general utility 
 should characterize all laws, and not mere individual good. 
 
 3. Laws should not be needlessly multiplied, but be as 
 few in number as the genius of the government, and the 
 state of society will admit. 
 
 This was a very favourite maxim with many -ancient 
 legislators. As the rule is expressed, there appears to be 
 no sound objection to it; but it is generally so worded 
 as to convey the idea that a paucity of laws is a positive 
 good, and the reverse, a necessary evil. If the first and 
 second rules be observed, the sound doctrine then would be, 
 'the more law the more liberty,' and legislation could hardly 
 be too minute. The learned Harrington, however, appears 
 to be very unfriendly to numerous laws. 'Rome was best 
 governed,' says he, 'under those of the twelve tables; and 
 according to Tacitus, plurimas leges, corruptissima re- 
 publicci. But you will be told that when the laws are hw, 
 they leave much to arbitrary power: but where there be 
 many, the) r leave more: the laws in this case, as Justinian 
 and the best lawyers think, are as litigious as the suitors. 
 Solon made but few laws; Lycurgus fewer; and common- 
 wealths have the fewest, at this day, of all governments.'* 
 This view of the subject however, is, we think, more 
 plausible than sound. 
 
 * Oceana, 56. System of Politics, chap. ix.
 
 Lect. VII.] AND ITS GENERAL PROPERTIES. 295 
 
 4. Laws should speak a general language, and not at- 
 tempt to comprehend all possible cases. 
 
 As a general rule, this is very sound; no enumeration 
 of the objects of the law can be sufficiently comprehensive 
 to embrace all the cases that may fall within its spirit; 
 and, consequently, enumeration should not be attempted 
 beyond what may be necessary fully to exemplify and il- 
 lustrate the law. The more minute is the specification, 
 the stronger is the reason for supposing the legislator in- 
 tended to exclude all non-enumerated cases. Laws, how- 
 ever, are sometimes very minute in their enumeration, 
 and still conclude with general words, so as to embrace 
 all cases within its spirit. 
 
 5. Laws should not only be general in their phraseology, 
 but universal in their operation. 
 
 This rule is also to be received with some caution. Wise 
 legislators will, indeed, guard against granting privileges 
 except for very special reasons, and will endeavour to fol- 
 low Solon's rule, which was, to make no law that did not 
 comprehend all his subjects indifferently. 
 
 6. Laws should be grounded on some fact which has 
 happened, with a view to the prevention of its recurrence; 
 for if none such has occurred, and i? not likely to occur, it 
 is not wise to make a law to meet its possible contingency. 
 
 This rule, it appears to me, is rather fanciful than solid. 
 It may be sound as to penal law3 against crimes of a very 
 odious nature. Hence, Solon justified the omission in his 
 code, of a law against parricide. 
 
 7. Laws should never attempt to secure their continu- 
 ance independently of the power in which they originated. 
 In this case the. maxim must ever be, unumquodque dis- 
 solvitur eo modo quo colligatur. 
 
 All legislative or supreme power must be co-equal, and 
 none is competent to bind itself, much less others to a fixed 
 observance of laws. The right of repeal and modification is 

 
 296 OF LAW, AND ITS GENERAL PROPERTIES. [Lect. VII. 
 
 inherent and unalienable. In modern times, however, as 
 well as in ancient, the devices have been numerous where- 
 by the legislature would impose restraints on itself and on 
 other legislators, with a view of placing laws beyond the 
 reach of the power whence they emanated. These are 
 deemed no less unwise than idle, and indeed impracticable. 
 
 8. Laws should have respect to the moral and physical 
 nature of man in general, and more especially to the par- 
 ticular character of those to whom they are directed. 
 
 9. Laws should vary with the great and radical changes 
 in the genius and disposition of the people, brought about 
 by the gradual developement of the energies of a nation. 
 
 10. Laws should not be venerated merely for their anti- 
 quity. A wholesome jealousy of innovation, and respect 
 for existing laws, are nevertheless to be encouraged. 
 
 The three last mentioned rules need not be commented 
 en at this time, as I shall have occasion to allude to them 
 in the ensuing; lecture.
 
 LECTURE VIII. 
 
 OP THE LAWS OF NATURE APPLIED TO MAN INDIVIDU- 
 ALLY, WHETHER IN A STATE OP NATURE, OR OP SOCIE- 
 TY AND GOVERNMENT. 
 
 (].) Introductory In the preceding lectures we have ge- 
 remarks. nerally been contented with stating some 
 
 of the most useful and approved notions of the Law of 
 Nature, without tediously dwelling on the many subtile 
 questions with which the casuists have embarrassed the 
 topicks of its origin, nature and sanctions. 
 
 In the present lecture we shall advert to most of these 
 points, not with the view of discussing them with metaphy- 
 sical minuteness, but of endeavouring to combine, in as 
 small a compass as may be consistent with perspicuity, all 
 that is really valuable in these long vexed questions. These 
 controversial ethicks, if not intrinsically as valuable as 
 many of the learned jurists of former times supposed, 
 have still proved highly beneficial; as it may happen that 
 those who are in search of precious ore, may gain more by 
 repeatedly turning up, and thereby enriching, the sterile soil 
 in which it may be hidden, than by the discovery of what 
 they seek. The zealous student of these topicks will find 
 much to awaken attention, much that will fashion his mind 
 to close and abstract reasoning, and discipline it to severe 
 and patient investigation; and it is certain that those most 
 distinguished in the science of ethicks, and of natural and 
 38
 
 293 OP THE LAWS OF NATURE. [Lect. VIIl 
 
 international law, have addicted themselves to these nice 
 and abstract disquisitions. Writers on these subjects are 
 indeed, at this day, more systematick, less metaphysical, 
 less pedantically learned on most points, than Grotius and 
 Puffendorf, Cumberland, Wolfius, and many others: but it 
 by no means follows that their works have superseded the 
 writings of these great fathers of the law of nature and 
 nations. The successors of the erudite Grotius, and the 
 i metaphysical Puffendorf and Cumberland, have enriched 
 \ themselves by a careful study of ihe writings of these very 
 I learned men, ar.d have been enabled to clothe their own 
 t productions in more attractive attire. But, after all, it 
 ' must be confessed that no modern treatises on ethical ju- 
 risprudence, and the principles of international law, can 
 compare in solid usefulness with the elaborate works of k 
 the philosophers we have just named. 
 
 The science of International Law, as distinguished from 
 what has been called the necessary and eternal law of nations, 
 which indeed, in one sense, is rather ethicks than law, is 
 almost wholly of modern structure. The treatise l De Jure 
 Belli ac racis' was the first attempt at pointing out the 
 delicate lines which separate the laws of nature from the 
 customary, voluntary and conventional laws of nations. 
 This work of the immortal Grotius is far more expository, 
 and consequently more authoritative, than those of his pre- 
 decessors; and it is a little remarkable that, after so ad- 
 mired an example, his distinguished successor, Puffendorf, 
 should have relapsed into all those extremely refined ethi- 
 cal disquisitions which confound the morals of the school- 
 men with the positive, diplomatic and natural laws and in- 
 stitutions of nations. 
 
 In some of the preceding lectures I have spoken of man 
 in a state of nature; of the rights of nature; and inciden- 
 tally of the laws of nature. In the present lecture it is 
 my purpose to state more at large the nature, origin, and
 
 Lect VIIT ] OP THE LAWS OF NATURE. 299 
 
 general principles of that great code which explains and 
 defines the reciprocal rights and obligations of men and 
 of nations. 
 
 (2.) Definitions of The definitions of the law of nature 
 the law of nature have been extremely various. We shall 
 state some of these in substance, though not in their lan- 
 guage, as the former will sufficiently instruct you in the 
 opinions of the various writers. 
 
 Burlamaqu?, a sensible author, speaks of the laws of na- 
 ture as consisting of those rules which nature alone pre- 
 scribes to man, with a view to his true and enduring happi- 
 ness. These rules, as a system, are imposed by God on 
 man, and constitute the science called the law of nature 
 and of nations, embracing the fundamental principles of 
 moral philosophy, universal jurisprudence, and general 
 
 politicks. 
 
 Puffendorf speaks of this law as that universal rule of 
 human actions, to which every man is obliged to conform, 
 as he is a reasonable creature.* Ruiherforth says that the 
 laws of nature are those rules of moral conduct which 
 mankind, in their intercourse with each other, are obliged 
 to observe, from their very nature and constitution. t The 
 eloquent Sir James Mackintosh, from whose language we 
 are never inclined unnecessarily to depart, says, in sub- 
 stance, that the law of nature and nations teaches the du- 
 ties and rights of individuals and of states; the former em- 
 bracing private ethicks, as far as they can be reduced to 
 fixed and general rules; and the latter, those general prin- 
 ciples of politics and international law, which the wisdom of 
 the lawgiver adapts to the peculiar situation of his country, 
 and which the skill of statesmen applies to the more fluctua- 
 ting circumstances which affect its welfare and safety. J 
 
 * Puff, book 2, ch. 3, sec. 1. t 1 Ruth Inst. 1, 22. \ Mack. Intro. 3, 4.
 
 300 OF THE LAWS OP NATURE. [Lect.VlII. 
 
 Montesquieu, who has but a word on the extensive sub- 
 ject of the Jus Naturae, remarks, that 'prior to all laws, 
 are those of nature, so called because they derive their 
 force entirely from our frame and being. In order to have 
 a perfect knowledge of these laws, we must consider man 
 before the establishment of society: the laws received in 
 such a state, would be the laws of nature.'* 
 
 The law of nature, says Mr Dagge, is the 'faculty' that 
 dictates those moral duties which every intelligent being is 
 obliged to observe, under an unknown penalty for trans- 
 gressing the presumed will of that Supreme Being from 
 whom he derives his rational powers, t Grotius defines this 
 law to be the dictate of right reason, whereby any action, 
 from its conformity to, or disagreement with the nature of 
 man, is either morally good or bad; and, as such, is either 
 enjoined or prohibited by God, the author and preserver 
 of nature. Lord Coke, in alluding to this great system 
 of rational and immutable law, says that it is that which 
 God, at the 'time of the creation of man, infused into his 
 heart, for his preservation and direction; which is lex scter- 
 ?ia, the eternal law, the moral law, called also the law of 
 nature; and by this law, written with the finger of God on 
 the heart of man, were the people of God a long time go- 
 verned, before that law was written by Moses, who was the 
 first writer of law in the world.! Most of the foregoing 
 definitions, or rather explanations, are liable to objection, as 
 indeed is the case with most others which might be men- 
 tioned. Some of these rather explain the operation of this 
 law, than its essential nature: others, again, rather disclose 
 the medium of its communication to man, than its qualities 
 or its origin; and some of them rest on the assumption that 
 there are actions essentially right or wrong, independently 
 of all law. The definitions of Grotius and Burlamaqui 
 
 * Sp. of Laws, bk. 1, ch. 2. f Dagge's Crim. Law, 82. 
 
 \ 1 Coke, Calvin's case, -5.
 
 Lect VIII.] OF THE LAWS OF NATURE. 301 
 
 are the least objectionable, as they show the universality of 
 this law, that is, that it applies to all reasonable beings; 
 the author of the law, viz. God, who alone was competent 
 to bind all men by one rule of action; and, lastly, the only 
 mode in which this law is ascertained, viz. through the hu- 
 man heart and understanding, since, independently of all 
 revelation and divine positive law, the conscience and rea- 
 son of man are alone sufficient to discover every dictate of 
 the law of nature. The expression, Maws of nature,' has 
 been often applied to matter as well as to mind; but the 
 foregoing definitions very properly confine the subject of 
 these laws to the moral conduct of man; for the expres- 
 sion, 'physical laws,' is more suitable to the laws which 
 regulate matter, and thus distinguishes between those two 
 great systems of rules, the one applicable to mind, the 
 other to mere matter. 
 
 Law indeed, in its most comprehensive sense, may be 
 extended to other entities than moral agents; and we have 
 so defined it in the preceding lecture. Stili, however, 
 when we come to speak of any particular system of laws, 
 we should have an appropriate expression. Thus the term, 
 'natural law,' should not be applied both to the conduct of 
 moral agents, and the rules prescribed by Deity in regard 
 to matter. Both systems are natural indeed; but the ex- 
 pression, 'physical laws,' when applied to matter, not only 
 prevents confusion, but keeps asunder things which are es- 
 sentially different. We cannot, however, concur with Mr 
 Christian, when he would wholly exclude the use of the 
 word law, as applied to matter. The difficulty of which 
 he complains, may, we apprehend, be removed in the man- 
 ner just suggested. No confusion can result from applying 
 the general word, law, to both moral and physical actions 
 and entities; but there is, as before mentioned, an impro- 
 priety in permitting the same expression, 'natural law,' to 
 apply to moral actions, and also those principles which re-
 
 302 OF THE LAWS OF NATURE. [Lect. VIII. 
 
 o-tilnte the existence, and various mutations of matter. Mr 
 Christian was, no doubt, impressed with this impropriety, 
 but has gone unnecessarily far in restricting the word 'law* 
 to the actions of man as a moral agent. This sense of the 
 word, says Mr Christian, 'is perhaps the only one in 
 which it can be strictly used; for in all cases where it is 
 not applied to human conduct, it may be considered as a 
 metaphor. We say, indeed, that it is a law of motion 
 that a body put in motion in vacuo, must for ever go for- 
 ward in a straight line, with the same velocity; but we 
 might as well have used the word property or quality.' 
 He further adds, that 'when law is applied to any other ob- 
 ject than man, it ceases to contain two of its essential in- 
 gredient ideas, viz. disobedience and punishment."" 
 
 The difference between us is scarcely worthy of further 
 remark. We know, however, that the material universe 
 is regulated by denned and fixed laws or rules, on the ob- 
 servance of which its perfection, and, in many instances, 
 its existence depend: these are the primeval laws prescribed 
 by Deity. Every rule thus prescribed to matter, whether 
 it relates to its existence, motion, rest, or various transfor- 
 mations, must be observed; otherwise, the res subjecta 
 ceases to exist, or it assumes some other form than the one 
 originally designed. These rules of matter, we know, are 
 not invariably adhered to, and the consequence is, that 
 Deity has as invariably impressed on such departure, im- 
 perfection, decay, and perhaps ruin, as he has unhappiness, 
 punishment or death on man, when he violates the moral 
 laws of his nature. All physical laws have their peculiar 
 sanctions, which, though they may not be called punish- 
 ments, are as fatal to the harmony and perfection of the 
 world of matter, as are the correspondent penal sanctions 
 to the world of mind, or of moral intelligence: both systems 
 
 • 1 Chris. Black. Comment.
 
 Leot. VIII.] OP THE LAWS OP NATURE. 303 
 
 of rules must be observed with equal strictness. These 
 rules are consequently laws, not indeed of the same spe- 
 cies, but belonging to the genus law; and these rules, 
 when denominated laws, are not, we think, so called in a 
 metaphorical sense only. But it is unnecessary to insist 
 longer on a question of terms. 
 (3 ) Whether the From what has been said we at once 
 
 law of nature be see trie impropriety of extending, (as 
 common to Man and 
 
 Brute, and how far it some have had the pedantry to do) this 
 is common to God law of nature to brutes, 
 and Man. When the Roman l awyer s defined the 
 
 law of nature to be that law which nature teaches to all 
 living creatures, — Jus naturale est, quod natura omnia 
 aniotalia docuit; nam jus istud non humani generis 
 proprium est, sed omnium, animalium quae in coelo, 
 quae in mari, nascuntur,* — they intended to describe 
 something very different from that lex naturae with which 
 treatises on ethics and jurisprudence have to do. The de- 
 finition of Ulpian answers only to those instincts which are 
 common to man and brute, and yet which operate very dif- 
 ferently on the two, being modified in man by the voice of 
 conscience, or the moral sense, and by reason, or, perhaps, 
 by the reasoning faculty only. Bui Puffendorf thinks that 
 the general consent of the learned has discarded the no- 
 tion of this common law of animate beings, as it is impos- 
 sible to conceive how a creature should be capable of such 
 law, and yet incapable of reasoning.! What is done by 
 brutes, therefore, in common with man, is done by them 
 out of simple inclination, that is, from instinctive impulses; 
 but by man, with a sense of obligation or of right super- 
 added; and hence arise moral sanction and accountability. 
 It is, we suppose, from a confusion of the very distinct 
 meanings comprehended in this phrase, that this absurd 
 
 * Dig. 1, 1, 1, 3; Inst. lib. 1, Tit. 2. sec. 1. f Puff- book 2, ch. 3 ; sec. 2.
 
 304 GF THE LAWS OF NATURE [Lect. VIII. 
 
 notion arose, of beasts being subject to the law of nature ; 
 a notion which its friends have endeavoured to support 
 from some passages of scripture,* and which Puffendorf 
 has been at some pains, unnecessarily we think, to confute. 
 Lord Bolingbroke, who had no affection for the Holy Scrip- 
 tures, and still less for Rabbinical learning, contends from 
 these various passages, that the Jews made beasts accounta- 
 ble like moral agents; and that the Mosaic history and law 
 sustain the opinion, that the law of nature is common to 
 man and beast; and he concludes with remarking that he 
 'knows nothing more absurd than this, except a custom at 
 Athens, but which was less cruel than that of the Jews, 
 viz. that the weapons by which a murder had been commit- 
 ted, were brought into court, as if they too were liable to 
 punishment; and the statue which had killed a man by its 
 fall, was, by a solemn sentence uf that wise people the Tha- 
 sii, cast into the seal't In reply to these sarcastic remarks, it 
 is sufficient to observe that, if the scriptures of the Jews be 
 construed with the same critical justice as the laws and 
 customs of other countries are, the passages relied on, and 
 now referred to, do not necessarily sustain the interpreta- 
 tion given to them by these critics. No one will seriously 
 contend that the Thasii supposed that the statue had 
 committed any crime, or that it was conscious of any pun- 
 ishment in being cast into the sea. So, likewise, the 
 law of deodands, so prevalent in most countries, and even, 
 at the present day, in some of the American states, has ne- 
 ver been supposed by any one to be based on the idea that 
 the chattel which had occasioned death, was forfeited to the 
 state on account of any fault or responsibility in itself. 
 And yet it would be as just to accuse the Thasians and 
 the people of this country, to whom the law of deodands 
 is not unknown in practice, of believing that inert matter 
 
 * Gen. 9, 5; Levit. 18, 23, and 20, 15, 16; Deut. 13, 15, 16; Exod. 21, 2S 
 j 7 vol. Bolingb. Works, 315; Taylor's Civil Law, 116.
 
 Lect. VIII.J op THE LAWS OF NATURE. 305 
 
 is morally accountable, as to impute to the Jews a belief 
 that the beast which had killed a man, and had been stoned 
 to death, was thus dealt with as a punishment to it. The 
 truth is, that all these laws and customs grow out of some 
 peculiar reasons of policy, wholly referribie to their moral 
 influence on man; and have no regard whatever to any sup- 
 posed moral effect either on brutes or inert matter. Philo- 
 Juclseus, Maimonides, Puffendorf, Taylor, the learned Sel- 
 den, and many others, who have perhaps spent too much 
 time and research on this point, agree that the sole object 
 of these laws and institutions was to create a greater abhor- 
 rence of crime in all its forms, and a more lively respect 
 for human life; hence, that the brute which had killed a 
 man, was not deprived of life ad pcenam ab ilia exigendam, 
 but ad poenam exigendam a domino; and in the case of 
 bestiality, lest, among other reasons, 'the beast remaining 
 alive, should keep up the scandalous remembrance of the 
 human offender who had suffered punishment.' These, 
 and numerous other reasons would have sufficiently weigh- 
 ed with Lord Bolingbroke, had he been inclined to extend 
 to the Mosaic and Jewish institutions, that same measure 
 of liberal explanation, which he so well knew how to ac- 
 cord in ail other cases.* 
 
 # Vide Selden De Jure naturali et Gentium, juxta disciplinam Ebmorum, 
 iib. 1, cap. 5. Selden, whom Grotius calls the 'glory of England,' and 
 who is always quoted under the name of the learned Selden, was born in 
 108 t. He was not only an accomplished lawyer, but a ripe scholar, as is 
 manifested by many works of wonderful research, of which the following 
 are the principal. The 'Analecton Anglo-Britannicon,' 'England's Epinomis,' 
 'Jani Anglorum Facies Altera,' 'Titles of Honour,' 'De Diis Syris,"History 
 of Tithes,' 'Marmora Arundeliana,' 'De Successionihus in bona defuncti 
 ad leges Ebraorum,' 'De successione in Pontificatum Ebrajorum,' 'Mare 
 Clausum, scu Dominio Maris,' 'Eutychii iEgyptii Oirgines EcclesiaV'Uxor 
 Ebraica,' 'De Anno Civili Veteris Ecclesiaj,' 'De Synedriis Veterum Ebrae- 
 orum,' and 'Vindicia? de Scriptionc Maris Clausi.' He is also advantageous- 
 ly known by his annotation on 'Fleta,' and the work entitled 'Table Talk,' 
 which was a collection of his sayings made by a friend, and published af- 
 39
 
 306 OF THE LAWS OP NATURE. [Lect. VH1. 
 
 Another curious topick of inquiry among casuistical 
 jurisprudents is, how far the law of nature can he consider- 
 ed as common to God and his creature, man; a question 
 which, in one shape or other, in religion as well as in na- 
 tural law, has not been without considerable discussion. 
 The main difficulty involved in this point, seems to be this. 
 One party places the fountain of all natural law in the di- 
 vine will alone, which, according to their system, may or- 
 dain or abrogate this law at pleasure. In this system, God 
 is conceived to be bound by no laws of his own, inasmuch 
 as he can thus change them in fact by any volition, how- 
 ever contrary to the present moral arrangement of things. 
 The other party contends for a natural, eternal and immu- 
 table fitness or decorum of tilings, which they say must be 
 essentially consonant to, and hinding on a being of purity 
 and goodness, and from which there is not a possibility 
 that he should ever depart. That if we ever conceive him 
 capable of enjoining rapine, murder, and a dishonest life, 
 we must conceive him, at the same time, willing into exis- 
 tence a being quite opposite to that which he has cre- 
 ated; and having created man as he is, it is of necessity 
 that he wills the rules which we at present take to be the 
 laws of nature. Hence they deduce a kind of obligation 
 on God to observe his own laws; and in this sense they 
 say that the law of nature is common to God and man. 
 This party is sub-divided into two classes, the first denying 
 the power of Deity over these laws, the other seeming to 
 admit the original power, but with the modification that, 
 having established the law, he is obliged to observe it, and 
 
 ter his death. We have noted the writings of this learned man, that stu- 
 dents may see how a well directed and persevering industry, not only mas- 
 tered the science of English jurisprudence, but all the minute learning of 
 the institutions, laws and customs of the Jews, which chiefly lay hid in 
 the ponderous, and forbidding volumes of the Ra> binical writers But 
 his learning was still more various, as is seen in his notes on the Arunde- 
 lian marbles, his Analecton and Epinomis.
 
 Lect. VIII.] OF THE LAWS OP NATURE. 307 
 
 cannot abrogate it. The first class contend for the im- 
 mutability of the law of nature, because, as they say, it is 
 so founded in the essential holiness and justice of God, as 
 to represent a perfect image or copy of these attributes, 
 and must therefore be as eternal as they. The second 
 class contend, that although God is the author of natural 
 law, yet having, in his pleasure, created man, with whose 
 nature that law agrees, the latter becomes therefore obliga- 
 tory on God. Whether there is much utility in this inqui- 
 ry, we will not say. Our object, however, is only to state 
 the point, and some of the views which have at different 
 times been entertained concerning it; not to enter at laru-e 
 into the question, or seek to clear it of the difficulties which 
 environ it. 
 
 In several of the preceding lectures we leaned towards 
 the opinion, that there is in man an innate admiration of 
 virtue and truth, independently of any immediate refer- 
 ence to their convenience to the purposes and happiness 
 of life. With that idea may very naturally be connected 
 another, viz. that we should feel within ourselves an im- 
 pulse, which might be termed obligation, towards the prac- 
 tice of viitue,. and the discovery of its consequent happi- 
 ness, without any hope of reward, or fear of punishment. 
 This we call an internal obligation, in contradistinction to 
 that which is external, and which is derived from our hold- 
 ing the laws of nature not only to be approved by God, but 
 sanctioned by him with penalties, either in this life or a 
 future. The internal obligation would lead us, if not by a 
 necessary law, certainly by a principle of our nature, to 
 love this virtue and this truth; whilst the external oblio-a- 
 tion would make us fear to violate them. Now, let us pur- 
 sue this subject of internal and external obligation, and see 
 what connexion it has with the point under consideration. 
 The law of nature, we remember, is said to be a body of 
 rules convenient to human conduct, and enforced by the
 
 30S OP THE LAWS OP NATURE. [Lect. VIII. 
 
 God of nature by penalties; for whatever may be the no- 
 tion of some as to the natural fitness of things being a 
 source of obligation, a penally is declared by all writers to 
 be an essential quality in all laws addressed to moral agents. 
 If we then assume this idea of law, it cannot be predicated, 
 of it that it is common to God and man; since we can, with 
 no propriety or decenc}*, suppose him to be operated on by 
 any thing in the nature of an external obligation, or pen- 
 alty. God, therefore, must be independent of all external 
 obligation. But the question yet remains, is he indepen- 
 dent likewise of all ii.tcri.al obligation? Can he, by a 
 mere volition, change all the rules of duty which now 
 subsist, and command ill for good, injustice for equity, ha- 
 tred for benevolence? for all this seems to be implied in 
 the notion of those who contend that all natural law ori- 
 ginates merely in the Divine will, independently of any 
 natural fitness of things, and any absolute and essential 
 conformity of natural law to the very nature and essence of 
 Deity. We may avoid, if we choose, to pronounce God 
 under a necessity to observe the rules which arise out of 
 the proportions and harmonies of that great moral system 
 of which he is the originator and supreme head. This, 
 however, would be nothing more than a change of phra- 
 seology; for this doctrine is no impeachment of his omni- 
 potence, and predicates nothing more than lhathe is under 
 a necessity of conforming to his own essential nature, 
 whatever that is; and the law of nature being presumed to 
 be a system in perfect coincidence with that nature, we 
 assert, by the immutability of that law, nothing more than 
 the immutability of the essential attributes of Deity. We 
 do not perceive how the conclusion is to be avoided, to 
 which we are driven by the consideration of God's perfect 
 wisdom and goodness, that he must, in all cases, will that 
 which is true, just and honest, and cannot will the con- 
 trary. We say what is true, just and honest, and these,
 
 Lect. Villi] OF THE LAWS OF NATURE. 309 
 
 we are inclined to think, are so, not merely because he 
 has willed them, but because they are so in themselves, 
 these being cceternal and coefficient with his own nature, 
 and, as such, prescribed to man for his observance. In 
 this sense, then, the law of nature may be said to be com- 
 mon to the creator and the creature. While we, from the 
 imperfectness of our nature, are allured to the obedience 
 of this great law by the hope of reward, or by the fear of 
 pain, He, from the perfectness of his nature, is necessa- 
 rily determined to the enactment and to the observance of 
 all the laws of the moral system of the universe. 
 
 The question, when stated in a different form, is essen- 
 tially the same, viz. whether, independently of all law, 
 divine, natural and human, an)'' action can be regarded as 
 intrinsically good or evil. It is certainly a topick of ex- 
 treme delicacy, approached by all with great diffidence, and 
 on which we pretend not to sbed any light, as it has baffled 
 the efforts of the ablest metaphysicians of all ages. The wri- 
 ters on either side of the question, have not agreed in their 
 views, and scarcely with themselves. The affirmative has 
 been maintained by Cudwofth, Clarke, Grotius, and many 
 others; whilst the negative has been espoused with equal 
 zeal and learning, by a still more numerous class of philoso- 
 phers, as Descartes, Puffendorf, Bolingbroke &c. Cudworth 
 may be regarded as among the most distinguished champions 
 of the doctrine of an eternal and immutable morality, in- 
 dependent of the will of Deity. It is said that he has dealt 
 with the intellectual world as some of the ancient philo- 
 sophers did with matter, when they maintained that the 
 Demiurgus, or divine Architect, moulded the frame of the 
 world out of eternal or primodial particles of matter, 
 having a wholly independent existence. So Cudworth ima- 
 gined a sort of intellectual chaos of independent, eternal 
 ideas, in which God sees truly, and man endeavours to see, 
 the real essences of things. In this view of the learned
 
 310 OP THE LAWS OP NATURE. [Lect. VIII. 
 
 author, the essences or foundations of morality have a high- 
 er source than Deity itself, and exist prior to the existence 
 of any moral agent, and independent of the will of him 
 who has created all moral agents* Descartes, on the other 
 hand, thinks that, though the essences of things, (by which 
 he means their possible modes of existence, in contradis- 
 tinction to actual existences) are eternal and immutable, 
 yet they are not independent of God; that they are immu- 
 table and eternal, merely because God has so willed it; 
 and that immutability is not inconsistent with dependence, 
 because the perfect conformity of these to the nature of 
 God's universe would render them immutable, though they 
 are dependent on the will of him who is the author of that 
 universe. Cudworth has found great fault with this dis- 
 tinction, and rejects the idea that God is the author of 
 these essences as well as actual existences. He supposes 
 the former to be eternal, and wholly independent of God; 
 and hence, that moral and other truths have an indepen- 
 dent existence, prior to the entities to which they are rela- 
 tive; and, consequently, that the moral or natural law is 
 independent of God, and common to God and man. But 
 Descartes is by some supposed to have meant to apply his 
 doctrine only to such truths and essences as relate to cre- 
 ated beings, and not to such as relate to the nature of Deity 
 himself; for that truths which relate to him, must be as 
 eternal and immutable as himself, and wholly independent 
 on his will, since it would imply a contradiction to suppose 
 that his omnipotence demanded the power to change his 
 own nature. Whether this were his idea or not, we incline 
 to think it the sound doctrine. The law of nature there- 
 fore, as it respects man, may be changed by him who cre- 
 ated man; but the immutability of the essences and truths 
 which relate to Deity himself, does not bind Deity by any 
 
 * 7 BoliDg. Works, 280.
 
 Lect. VIII.] OF THE LAWS OF NATURE. 311 
 
 obligation or law, nor does it in any degree impair his om- 
 nipotence, since it implies, in truth, nothing more than 
 what all theists and christians place as the very foundation 
 of their religion, viz. that 'with God there is no variable- 
 ness nor shadow of turning.' But we must part with this 
 subject, which is perhaps quite too abstract for the occasion, 
 and which j?hould not have been thus alluded to, had not 
 our scheme of instruction, in this first title of the course, 
 aimed at pointing at least to every material doctrine of 
 ethical, as well as of mere positive or civil jurisprudence. 
 
 (4.) Difference be- The great rules or principles whereby 
 tween the Law of Qod . .^ tQ CQnduct lhfJ mQral 
 Nature, and Divine ' J 
 
 Positive Law. tern of things, and which are known under 
 
 the name of the laws of nature, are obviously somewhat 
 different from that revealed law which he hath given to the 
 whole human family, or to the Jews in particular, and which 
 is denominated Divine Positive Law. This revealed code 
 may be said to consist of two branches, viz. the Moral Law, 
 and the Ceremonial Law. The difference between the jus 
 naturso, and the revealed law, is clear enough, if we con- 
 sider what makes the original distinction between moral, 
 and mere positive duties. If the Law of Moses, for exam- 
 ple, forbids murder, and the eating of unclean animals, what, 
 it may be asked, makes the first a moral, and the second a 
 positive precept? To say that the one is a precept of the 
 law of nature, and the other is not, only carries us back to 
 our first difficulty, viz. what is it that makes them different? 
 They are not established by a different authority, for God 
 commands them both; nor are they under different sanctions, 
 because happiness is the reward of obedience in both cases: 
 and it is the same also under the Mosaic law and the Gospel. 
 Neither do we gain any thing by saying, that every moral 
 duty becomes a positive one when God is pleased to declare 
 such a moral duty by any express command; for the obliga- 
 tions which flow from the law of nature, when clearly ascer- 
 
 -♦«***
 
 312 OF THE LAWS OF NATTTRK. [Lcct. VIII. 
 
 tained by the light of reason and conscience, are the same 
 as those which are imposed by divine positive law. The 
 (rue (1 '(Terence, we apprehend, is this: under God's univer- 
 sal moral system, actions are either good, bad or indiffer- 
 ent; the two first we are obliged to do or to avoid, because 
 they of themselves, as we perceive by the mere light of 
 nature, invariably produce either good or evil, and we 
 therefore, by the natural law alone, are under an obligation 
 to follow or to eschew them. But if God hath been pleas- 
 ed to enjoin any thing which by the law of nature is indif- 
 ferent; this indifferent matter then acquires a distinct char- 
 acter, and we are under an obligation to perform it; not 
 that the Almighty can be conceived to enjoin any thing to 
 no purpose, but because we instantly conclude that he hath 
 some important and beneficial aim, correspondent with the 
 general designs of the law of nature. Thus again, for ex- 
 ample; the natural law permits us to labour on all days in- 
 differently; yet God hath now enjoined on all men the ob- 
 servance of the Sabbath, designing thereby to preserve that 
 lively veneration of him, and remembrance of his worship, 
 which are enjoined by the law of nature, but which are 
 more effectually promoted by this excellent positive ordi- 
 nance. From what has been said, it appears that the natu- 
 ral and divine iaw are not to be distinguished from each 
 other by any thing which relates to actions bona aid mala, 
 in sc; hut by this only, viz. that positive or revealed law 
 has made actions, indifferent in themselves under the natu- 
 ral law, assume a new character by reason of injunctions 
 and prohibitions annexed to them, which were wholly un- 
 known to the natural law. It is true that a great portion 
 of what is called divine positive law, relates to matters in- 
 trinsically good or evil: but that branch of the scriptures 
 called the moral law, is nothing more than the natural law 
 more clearly revealed to us, for the purpose of confirming 
 the natural dictates of reason and conscience; and the inter-
 
 Lect VIII] OF THE LAWS OP NATURE. 313 
 
 nal obligation is not said to be increased, since the injunc- 
 tions of tbe natural law, when ascertained by the light of 
 nature, are equally obligatory with those which are repeat- 
 ed in the scriptures. The obligation of divine positive law 
 is said to be both internal and external; the former, be- 
 cause man's reason promptly assures him that Deity is in- 
 capable of enforcing that which on the whole is not pro- 
 ductive of good; and the latter, because the whole scrip- 
 tural system has revealed to us that punishment shall surely 
 be visited on all who violate any of its injunctions. 
 
 Divine positive law is distinguished from the law of na- 
 ture chiefly by two circumstances; first, the mode of its 
 communication to man, and secondly, that it is alterable by 
 the authority which made it; whereas the prsecepta na- 
 turae are eternal and immutable, being founded in the 
 essential nature of Deity himself.* 
 
 As to the first, viz. the means of arriving at the know- 
 ledge of the law of nature, various opinions have been en- 
 tertained in all ages, and in all countries. Most of these 
 are, no doubt, extremely absurd, being the offspring of 
 Rabbinical superstition, of scholastic refinement, or of me- 
 taphysical pedantry. A brief notice of these theories is all 
 that we can allow ourselves, and all, indeed, that is neces- 
 sary. 
 
 First. The Talmudists assert that God delivered orally 
 to Adam, and subsequently to Noah and his sons, the whole 
 of the law of nature, embraced in seven short and energetic 
 precepts, now of universal obligation. They regarded this 
 little code as the matrix of the entire body of moral or 
 natural law, 'primordialem legem, et matricem omnium 
 praeceptorum Dei.' They also held that although these 
 precepts, (now that they are revealed, and have become 
 traditional among all nations and people,) are perfectly 
 consentaneous to the human understanding, yet a revel*- 
 
 * Vide ante soc. 3. 
 40
 
 314 0E THE LAWS OF NATURE. [Lect. VIII. 
 
 tion was essential, and that these elements could never 
 have been brought to light by the unaided reason of man.* 
 
 These boasted 'Praecepta Noachidarum,' as they are cal- 
 led, do not justify the praises bestowed on them by the 
 Jewish Rabbis. They enjoin the worship of one God, and 
 that a murderer shall forfeit his life; they inhibit idolatry, 
 incest, murder, theft, and the eating of animal food, unless 
 cleansed of its blood. That human reason could have as- 
 certained the necessity of all of these, except the last, we 
 cannot doubt: but if not, these can scarcely be said to fur- 
 nish the fundamental rules of ethics and natural law; and 
 the ample commentaries of the Jewish doctors, or even the 
 elaborate annotations of modern Christian philosophers, if 
 restricted to these precepts, would furnish a meagre code, 
 compared with what we now call the system of natural 
 jurisprudence. It must be admitted that the Mishna, and 
 its commentary, the Gemara, even as pruned, and purified 
 of most of its absurdities, by Maimonides, in the twelfth 
 century, are no very authoritative source either of unexcep- 
 tionable morals, or of pure reasoning. From this brief ac- 
 count of this famous matrix legis naturae, it is not probable 
 that this theory as to the origin and promulgation of the 
 natural law, will gain many adherents, more especially as 
 the purer pages of Holy Writ give no countenance to this 
 traditional figment. 
 
 Secondly. Another mode, according to the Jewish doc- 
 tors, by which man came to a knowledge of the laws of 
 nature, was by inspiration, partly of superintendency, and 
 partly of actual suggestion. Some of the Rabbins, on the 
 supposition that man was wholly unable of himself to ar- 
 rive at these important truths, and that the oral communi- 
 cation of the laws of nature, as just stated, may not have 
 taken place, assert that at one period the Schekinah, or 
 
 * Selden. de Jure Nat. et Gent. Jib. 1 ca. 10. I Jennings' Jew: An- 
 tiqu. 116.
 
 Lect. VIII.] OF THE LAWS OP NATURE. 315 
 
 illuminating presence of the Deity, was so strong in the 
 minds of some of the patriarchs, that they became ac- 
 quainted, not only with the principles of the laws of na- 
 ture, but with those of universal science. During this pe- 
 riod, these pious fathers also consulted Deity through their 
 high priest, and the minds of the prophets were so en- 
 lightened by the superintendent inspiration of Deity, that 
 these great truths became familiar to them, and were trans- 
 mitted by the scriptures, and by tradition, to all ages and 
 countries. It is further stated by them, that the fulness of 
 the Divine presence withdrew itself in after ages; but still 
 that the Jewish nation was under a more special protection 
 than other nations, and that important truths continued to 
 be communicated through a mediate, or more remote inspi- 
 ration. It appears, then, that the seven precepts, accord- 
 ing to the first theory, were not imparted by any species 
 of inspiration, but by an express oral communication; 
 whereas, according to this second mode, the knowledge 
 was gained either by an inspiration which aided human 
 reason, (and which modern theologians call an inspiration 
 by superintendency) or by a direct inspiration, in defined 
 ideas, and exact language, as to matters above human rea- 
 son; which the same theologians denominate inspiration of 
 suggestion. As to this .theory we have only to remark, 
 that the fullest faith in our holy religion does not require 
 us to believe that the principles of morals are above the 
 reach of human reason, and must have remained unknown 
 if not revealed by inspiration of some kind. We therefore 
 dismiss this hypothesis as entitled to no more regard than 
 that of the seven precepts said to be given to the Noa- 
 chidae. 
 
 Thirdly. The next opinion on this subject, which has 
 been greatly disputed, but to which we can only allude, is 
 that all our knowledge of morals and the natural law is 
 derived to us solely from human reason, which invariably
 
 316 OP THE LAWS OP NATURE. [Lect. VIII. 
 
 pronounces a judgment in all cases of moral approbation 
 and disapprobation; and tbat not only the entire code of 
 morals and natural law flows from, and through the channels 
 of, the reasoning faculty, but that none of its rules derive 
 even an additional certainty, or obligatory force, from any 
 other source. The advocates of this doctrine say that on 
 some points the judgments of reason are pronounced with 
 such wonderful rapidity, as to assume the appearance rath- 
 er of an instinctive sentiment, or moral sense, than of sure 
 conclusions attained by any ratiocinative process; while on 
 other matters, the mind arrives at its conclusions by a re- 
 gular chain of argument and induction. Those who main- 
 tain this doctrine, are not content with the admission that 
 the rules of morals, and the laws of nature, are strictly con- 
 formable to reason, but they hold, as we have said, that there 
 is no other means of arriving at the knowledge, of any of them 
 than by reason, and that there is no other faculty of the mind 
 which in any degree co-operates with it. They contend, 
 in fine, that all moral distinctions are not only as demon- 
 strable as mathematical truths, but that no other means are 
 requisite for their full effect as well as ascertainment, than 
 the reasoning faculty: That all sense of obligation to obey 
 them, and all that we call moral approbation and disappro- 
 bation, proceed wholly from reason: That this approbation 
 or disapprobation diners in no respect from the judgment 
 which reason, in its general operation, pronounces in all 
 other cases: That however strong may be our admiration 
 or disgust of certain actions, the mind is in such cases 
 merely affected with a thorough sense of truth, derived to 
 it by the reasoning faculty: And that this judgment of 
 approbation or disapprobation is attended by degrees of 
 pleasure or pain, only as reason is more or less clear in ar- 
 riving at its conclusions. 
 
 Fourthly. Closely allied to the foregoing theory, is that 
 which allows to reason it3 full share in the ascertainment of
 
 Lect. VIII.] OF THE LAWS OF NATURE. 317 
 
 moral distinctions, but, at the same time, claims for senti- 
 ment an active influence in producing on the mind lhat 
 thorough conviction of truth which affects the heart also, 
 and pronounces certain actions good, and worthy of being 
 practised, and others bad. and to be carefully avoided. 
 This hypothesis maintains that in every case of moral dis- 
 crimination, two distinct faculties are called into requisi- 
 tion, viz. reason and sentiment; and that virtue and vice 
 naturally and essentially affect the human mind differently, 
 it being in the very constitution of man to love virtue, and 
 to abhor vice, which are made known to him by the united 
 operation of reason and sentiment. Hence, says Mr Hume, 
 'I am apt to suspect that reason and sentiment concur in 
 almost all moral determinations and conclusions. The final 
 sentence, it is probable, which pronounces characters and 
 actions amiable or odious, praiseworthy or blameable; that 
 which stamps on them the mark of honour or infamy, ap- 
 probation or censure; that which renders morality an active 
 principle, and constitutes virtue our happiness, and vice our 
 misery: It is probable that this final sentence depends on 
 some internal sense or feeling, which nature has made uni- 
 versal in the whole species.'* 
 
 From this view of the subject, it appears to be the pro- 
 vince of reason to ascertain from all the circumstances of a 
 given case, the various tendencies of the actions involved 
 in it; while sentiment, by a law of our nature, necessarily 
 and feelingly distinguishes the moral from the bad; the 
 good from the evil; the useful from the prejudicial; giving 
 activity to the judgment, and enabling reason more effect- 
 ually to accomplish its work. This hypothesis does not 
 allow to reason alone the power, in any case, to define tiic 
 merit or demerit of an action; sentiment must participate, 
 independently of all volition; and this gives us pain or 
 
 * Hume's Essays, vol. 2, 210.
 
 318 OF THE LAWS OF NATURE. [Lect. VIII. 
 
 pleasure at the contemplation of vice or virtue, proportion- 
 ed to the perfection of our moral structure, which may be 
 much affected by our moral, intellectual, and perhaps phy- 
 sical education. There can be little if any cause to doubt, 
 that this theory is nearer the truth than that which ascribes 
 our knowledge of the laws of nature to reason alone, or to 
 sentiment alone, as some have maintained. 
 
 Fifthly. The next opinion we shall note, is that of 
 Hobbes, who, so far from admitting the law of nature to 
 be the law of God, ascertained either by his express com- 
 munication, by inspiration, isason or sentiment &c. contends 
 that this law becomes known to us, and obligatory, only 
 when enacted by the laws of man; that the civil magistrate 
 is the sole organ whereby this knowledge is obtained, and 
 its obligations created! This theory makes the origin of 
 natural law wholly independent of God; while some of the 
 others we have just mentioned, make it wholly indepen- 
 dent of the human mind and heart. 
 
 It is indeed wonderful to what lengths a fondness of 
 theory often carries the mind, and how many absurdities 
 even learned men are capable of, and almost conceal from 
 themselves, by the use of novel or unmeaning words. 
 Hobbes, pressed by the powerful claims of right reason, is 
 compelled to admit that this is the rule, while he denies 
 that it is the law of human conduct. The judgments of 
 reason, as they are stated in the writings of the soundest 
 ethical philosophers, and the opinions of individuals, as 
 they are sanctioned by reason, by conscience, sentiment 
 &c. are not, in his opinion, authoritative: they do not 
 amount to laws, ob defectum auctoritatis summce! All 
 actions he believes to be wholly indifferent, until the civil 
 magistrate makes a difference by commanding some, and 
 inhibiting others; his pervading and magical maxim being 
 Non Veritas, sed auctoritas facit legem.
 
 Lcct. VIII.] OF THE LAWS OF NATURE. 319 
 
 But whatever may be the source of communication of 
 the natural law, all now agree that it is clearly distinguish- 
 ed from divine positive law, as to the mode by which it is 
 ascertained, and also in its unchangeable nature; — on both 
 of which we have dwelt perhaps sufficiently long. 
 
 (5.) Whether this Besides the two leading opinions al- 
 
 law is derived from d ^ refer the Qri in of 
 
 the consent of man- J 
 
 kind. the law of nature, the one to the Divine 
 
 will alone, the other to a natural decorum and fitness in 
 
 the things enjoined or prohibited; there are several other 
 
 doctrines connected with this subject, which deserve our 
 
 special notice. 
 
 We shall now examine a hypothesis usually ascribed to 
 Aristotle, which seeks for the source of this law in the 
 consent of mankind, or, at least, of the majority of what 
 are called the most refined and enlightened nations. If by 
 this is feally meant, that we may appeal to the concurrent 
 testimony of enlightened man for the doctrines of natural 
 jurisprudence, we do not perceive how this can be de- 
 nied, though a contrary doctrine has been ably maintained 
 by Mr Ward, in his Inquiry into the Foundation and His- 
 tory of the Law of Nations, as we shall presently have 
 occasion to show. 
 
 The opinion of mankind at large on any subject, is the 
 only natural standard by which the probable truth of the 
 matter is to be judged. It certainly raises a strong pre- 
 sumption in favour of a doctrine, when many men of dif- 
 ferent nations concur in it; but this may not be decisive. 
 Nor is this standard at all shaken by the fact, that the mo- 
 ral opinions and practices of some nations and tribes have 
 been extremely variant from, and even opposite, on many 
 essential points, to what are deemed sound morals in Chris- 
 tian or polished communities. Neither does this doctrine 
 of the natural standard, which was the opinion of many 
 philosophers, from Aristotle down, suffer from the conces-
 
 320 OF THE LAWS OF NATURE. [Lect. VIII. 
 
 sion that even some enlightened and refined nations have 
 entertained sentiments, and exhibited manners, wholly in 
 hostility to our scheme of morals. Nor, lastly, is it affect- 
 ed by the admission that the simple excel the wise in 
 number, and that if the actual practices of men are indica- 
 tive of their notions of right or wrong, vice and dishonest 
 arts would seem to be more congenial to the nature of man, 
 than what we denominate decorum and virtue. All these 
 may be conceded for the sake of argument, and yet human 
 opinion may not be impugned as the standard of moral dis- 
 crimination. 
 
 It is to be observed in the first place, that the opinions 
 of nations on these points have not been more at variance 
 than those of different individuals; and that as the latter 
 often bend their principles to some predominant inclina- 
 tion, so the eccentricities in the manners, customs and 
 morals of nations, very generally spring from sofne con- 
 trolling superstition, the mandate of some powerful prince, 
 the gradual influence of erroneous state policy, and even 
 from the misapplication of sound principles. This is dis- 
 cernible, perhaps, in the famous notion of the Spartans, 
 that no disgrace should attach to theft, but only to the 
 awkwardness of the perpetrator in permitting its discovery. 
 So, also, though the ignorant exceed the wise in number, 
 yet in all nations and ages, the ignorant have generally 
 preserved a tolerably accurate knowledge of the leading 
 principles of molality, and respected the opinions of those 
 whom they deemed their superiors in virtue and wisdom. 
 And finally, the worst practices, whether national or indi- 
 vidual, do not conclusively prove a want of knowledge of 
 those principles of morals which they violate. So that all 
 these objections amount to nothing more than what is ob- 
 viously a fact, viz. that policy, passion, false reasoning, 
 erroneous education, the corruptions of our nature, &c. 
 cause both communities and individuals, civilized and
 
 Lect. VIII.] OP THE LAWS OF NATURE. 321 
 
 savage, occasionally to swerve from the clearest dictates of 
 reason and moral sentiment. On this fact we shall have 
 occasion to comment fully hereafter. 
 
 An appeal, however, to human opinion as an index of 
 truth, is a very different tiling from making it truth itself. 
 So, likewise, to assert that the judgment of mankind has 
 hit, for the most part, on the just principles of the natural 
 law, is very distinct from the proposition, that what it es- 
 teems right, is therefore right. It is very certain that there 
 are principles of action more conformable to the design of 
 our nature than others; and there is no difficulty in con- 
 ceiving, not only that some of these might lie hidden per- 
 haps forever from mankind, and yet not be the less true, 
 and consonant to our nature, than if they had been discov- 
 ered to the whole world, but also that moral truths, at one 
 time distinctly known, valued and practised, may never- 
 theless, from a combination of causes, be almost wholly 
 effaced from the human mind and heart. Nor is there any 
 danger to be apprehended from this doctrine; for if it be 
 asked, if all men were now to consent to the truth of an 
 opposite system of morals from what now obtains, could it 
 be demonstrated that they were in the wrong? the reply to 
 such a question would be two-fold; first, that the truth of a 
 proposition is not to be tested by such an extreme supposi- 
 tion, it being unfair to make it, as it rests on the denial of 
 one of the main sources to which we refer our knowledge 
 of moral good and evil. And as we conceive it to be ut- 
 terly impossible for mankind to consent to any such sys- 
 tem, it would be testing the soundness of a given propo- 
 sition by a concession which cannot be granted without 
 virtually abandoning the proposition itself. But secondly; 
 although the belief of all makind may be safely appealed 
 to for the nature of truth, yet an opinion concurred in by 
 many, and even by most nations, is only presumptively 
 true. Every man is conscious in his own mind, that he 
 11
 
 322 OF THE LAWS OF NATURE. [Led. VIII 
 
 does not believe a proposition merely because it is held by 
 others: we ask for proof, and that proof is not the counting 
 of numbers, but the comparison of principles, made by our 
 own ratiocination; and when the opinion is formed, a con- 
 trary opinion of numbers will not shake it, unless sustained 
 by reasons sufficient to countervail those on which we based 
 ours. 
 
 The point under consideration is very important to the 
 just apprehension of various questions of natural law, af- 
 fecting; the communion of nations no less than of individ- 
 uals. It has been doubted whether tkere be any law of 
 nature independent of what has been revealed in the scrip- 
 tures; and whether the law of nations, in its primitive, and 
 most extended sense, be any thing more than the jus na- 
 turae applied to nations as mere individual moral agents; 
 or, in other words, whether there be any laws of nations, 
 except the moral precepts revealed to mankind by God in 
 his scriptures, which are of universal obligation, or those 
 contained in certain positive institutions and compacts of 
 nations, which are obligatory only on the particular nations 
 by which they have been adopted. 
 
 Ancient philosophers generally, the Roman civilians, 
 and many of the jurists of modern times, as Puffendorf, 
 Hobbes, Burlamaqui, Vattel &c. maintain that natural juris- 
 prudence needed no aid from Deity for its ascertainment or 
 obligation; and that the Jus Gentium is this natural law 
 applied to nations as to individuals, with no other difference 
 than what arises from the respective nature of the two sub- 
 jects of its operation. Grotius, Huberus, Bynkershoek, 
 and many others deny that there is any other law of na- 
 tions than that which is positive or instituted, and conse- 
 quently none that is of universal obligation ; and Mr Ward 
 goes so far as to say that there is neither a law of nature 
 nor of nations, but that which is enjoined in the scrip- 
 tures.
 
 Lect. VIII. j OP THE LAWS 01-' NATURE. 323 
 
 Though we agree with those who hold that natural law 
 is ascertainable by the faculties of the human mind, and 
 that there can be no universal law of nations except as it 
 arises from this law applied to nations as moral entities, yet 
 we think that Puffendorf and others err when they appeal 
 to the manners, customs and institutions of nations for the 
 law of nature and nations itself. We admit that what is 
 universally approved by mankind, must be regarded as 
 true, and that what is generally approved, is apt to be true; 
 but we object to the general conclusions which have so 
 often been drawn from particular facts. The fault of Puf- 
 fendorf 's reasoning on the natural law, as deducible from 
 the consent of mankind, is that he places too much reliance 
 on the views and practices of particular people and nations: 
 he is too much disposed to educe general rules from special 
 customs; the very opposite of which is the doctrine of Mr 
 Ward, who allows nothing to be obligatory as a law of na- 
 ture, unless it be universally approved; and hence he argues 
 that there can be no natural law except the law of God, 
 since, as he contends, there is no one point of morals on 
 which mankind have universally agreed. 
 
 On this topick Puffendorf appears to have mistaken Aris- 
 totle; for the very passages cited by him from the works of 
 that eminent philosopher, prove, we think, that Aristotle 
 looked perhaps to the universal consent of nations, as fur- 
 nishing evidence of the 'jus naturae.' The passages to which 
 we allude are these: 'Natural justice I call that which 
 bears the same name in all places, and doth not depend on 
 particular sentiments:' and again: 'there is a general right 
 and wrong, or just and unjust, believed and professed by 
 all men, although no society should be instituted among 
 them, and no covenants be transacted:' and finally; 'by a 
 kind of natural divination, all mankind distinguish general- 
 ly what is just from what is unjust, independently of all
 
 324 OF THE LAWS OF NATURE. [Lect. VIII. 
 
 social distinctions.'* We do not perceive how from the 
 foregoing passages Aristotle can he claimed as an advo- 
 cate of the opinion, that the natural law is to he drawn 
 from the manners, laws, customs and institutions of nations; 
 but just the reverse. It is evident that he relies on universal, 
 not on partial opinions; and also that by 'natural divination' 
 he evidently meant what Dr Hutcheson has revived under 
 the name of moral sense, and what Burlamaqui calls 
 moral instinct. And to nearly the same purpose is the 
 opinion of Grotius, who, after establishing the principles 
 of the natural law in the constitution of human nature, 
 adds, 'all I have been saying would in some measure take 
 place, were we even to grant that there is no God, or that 
 he did not concern himself about human affairs.' 
 
 ,„ . . . , Although the consent of mankind, 
 
 (6.) A furtner ex- " 7 
 
 aminationofthisdoc- even were it universal on a given point 
 
 trine, and whether f morals, would not render such point 
 
 the law of nature and 
 
 nations can extend to obligatory as a natural law, yet the uni- 
 
 actions morally indif- versality of the consent would furnish 
 ferent. 
 
 strong evidence of its truth. Consent, 
 
 then, can be in no case the source of this law. But it is 
 contended by some, that consent is the only proof we can 
 obtain of the truth, and, hence, that the laws of nature and 
 nations are derived from, and made up entirely of the cus- 
 toms of nations, and that we are to digest these several 
 codes from the existing manners and institutions among 
 them, without reference to what is called with us intrin- 
 sick good and evil. To sustain this singular doctrine, its 
 advocates have been obliged to rely on certain positions, 
 the fallacy of which appears to us extremely manifest. 
 These positions are, first, that a variety of opinions on 
 any subject proves the uncertainty or falsehood of all. 
 Secondly, that there can be no criminality in actions which 
 
 * Arist. Rheto. Lib. ], cap. xiii.
 
 Lect. VIII. J OF THE LAWS OF NATURE. 325 
 
 proceed from ignorance of those principles which we refer 
 to the natural law; and lastly, that the general prevalence 
 in any age or country, of principles at variance with our 
 own, relieves those who practice them from all just impu- 
 tation of guilt! Such are the wild doctrines to which spe- 
 culation leads us, when we give up reason, conscience, and 
 common sense, as the sources of our knowledge of right 
 and wrong. 
 
 The inquiry, then, is, are we to look for the laws of 
 nature and nations in the actual practices of states and of 
 people, or in the judgments of reason and of conscience? 
 Are we to abandon the guidance of our judgment and 
 moral sentiments, and, against the convictions of both, 
 pronounce right and true what happens to be practised 
 by very many of our species? Are there no means pos- 
 sessed by every individual, of arriving at truth, though 
 the actions of a majority of his fellow beings indicate 
 opinions contrary to his own? We think there undoubt- 
 edly are such means, and that an individual might be theo- 
 retically and practically in the right, though opposed to all 
 mankind; and so they might all be in the wrong. 
 
 This is stating the question in a form much more favour- 
 able to the views of our opponents, than the history of our 
 species warrants; but even when thus stated, the argument, 
 we think, is decidedly against the adoption of prevailing 
 customs and opinions as the test or measure of the natural 
 law of individuals and of nations. We have admitted 
 that opinions very generally adopted and practised by man- 
 kind, are extremely apt to be sustained by sober reason, 
 and sound conscience; but we deny the fact, that opinions 
 hostile to what we call sound morals, have very generally 
 been approved. It is, indeed, a remarkable fact in the his- 
 tory of man, that people the most separated by space, 
 time, civilization, religion &c. have nevertheless maintain- 
 ed a wonderful, and almost universal congruity of opinion
 
 326 OF THE LAWS OK NATUEE. [Lcct. VIII. 
 
 on the cardinal notions of human rights and duties^ So 
 striking is this circumstance, that it would be matter of ex- 
 treme surprise how they came thus to agree in sentiment, 
 were we to refer this to consent or accidental coincidence, 
 instead of some necessary principle of our nature, whereby, 
 from the same premises, they have been conducted to the 
 like conclusions. 
 
 In casting our eye over the history of our species, what- 
 ever may be the occasional deflexions from sound moral 
 opinions, and the still greater departures from moral prac- 
 tices, we contend that the more general feature both of 
 opinion and practice has been conformity to, rather than 
 ignorance and disregard of the fundamental rules of morals. 
 But whilst this has been the case very generally, it must 
 be conceded that in different ages, and in various countries, 
 civilized and barbarous, there have been customs, manners, 
 laws and opinions, altogether variant from what is approved 
 under the natural law and christian code, and which would 
 seem to imply in them the almost total absence of such a 
 conscience, moral sense, and right reason, as we are in the 
 habit of appealing to. 
 
 Hence it has been strangely inferred, first, that reason 
 and sentiment are not to be regarded at all, nor are the 
 opinions of men and of nations entitled to any respect, 
 even as evidences of the natural law. Secondly, that there 
 can be no other natural law than what has been revealed 
 by God in his scriptures, which is the only standard, or 
 obligatory measure, of right and wrong. And thirdly, 
 that all those practices and customs which we call unnatu- 
 ral, criminal and shocking, are neither the one nor the 
 other, when practised by nations ignorant of revealed law, 
 and who thus act from the general prevalence among them 
 of opinions different from our own. All the foregoing in- 
 ferences we hold to be utterly untenable.
 
 Lect. VIII. j OF THE LAWS OF NATURE. 327 
 
 And first; no position appears more strikingly erroneous 
 than that which denies to man the privilege of invoking 
 the opinions and practices of his species, in confirmation 
 of his own sentiments and reasoning, merely because those 
 practices and opinions differ among themselves, or because 
 his own may not always be consistent. He has a right to 
 appeal to them whenever they conform to his own, as evi- 
 dence of their justness; but so, likewise, if they differ 
 from his, he has a right to compare the effects of his opi- 
 nions and practices with those which attend the contrary 
 opinions and practices of others. 
 
 It will be perceived that one class of these philosophers 
 rely on the opinions and practices of nations, as the only 
 means of becoming acquainted with this law, excluding the 
 claims of individual reason and sentiment; whilst the other 
 class refuse to appeal either to the opinions and practices of 
 nations, or to the reason and sentiment of individuals, be- 
 cause the former so often differ from the latter, and among 
 themselves; and hence is it that they refer us to the scrip- 
 tures alone. Here we may take a middle course, and whilst 
 we deny that the customs of nations make this law, and 
 are to be resorted to as the only certain manifestations of 
 reason and moral sentiment, they may certainly be appeal- 
 ed to as evidences, and, as such, may be relied on to con- 
 firm our opinions when in conformity with theirs. So, 
 taking reason and sentiment as our guide, we may demon- 
 strate the fallacy of theirs, when they differ from ours; vir- 
 tuous and vicious practices needing generally no other il- 
 lustration than their practical effects. To admit that we 
 have no sure opinions, and no immutably wise and salutary 
 practices, because they differ from those of other nations, 
 which must, for that reason, be regarded as equally virtu- 
 ous and wise with our own, would be to admit a course of 
 argument destructive of all reasoning, confounding the 
 distinctions between right and wrong, destroying at once
 
 32S OP THE LAWS OF NATURE. [Lect. VIII 
 
 the charm of virtue, and the odiousness of vice, and in- 
 volving us in the most absurd and gloomy pyrrhonism. 
 
 The proposition, that a variety of opinion on any subject 
 is proof of the uncertainty or falsehood of all, is so weak, 
 and so glaringly erroneous, that any one unacquainted 
 with the grave follies of the learned, would hardly believe 
 it possible such a notion could have been seriously uttered. 
 Were this proposition admitted, all truth would vanish 
 from the world: nothing could be certain, or received as 
 true, since every thing has been doubted or denied. The 
 existence even of the material world, which we see and 
 feel and hear, was questioned by Bishop Berkeley ; the in- 
 tellectual or spiritual world was equally doubted by Mr 
 Hume. Descartes was certain of only one thing, l cogito, 
 ergo sumf being his single maxim. No moral or physical 
 truth has escaped this doubting madness; nature, the God of 
 nature, his omnipotence, and, in turn, every attribute ascri- 
 bed to him, have been denied. But though there have been 
 no truths so manifest, no facts so obvious, no reasonings so ir- 
 resistible, no feelings so acute, no affections so delightful, as 
 not to have been doubted or denied by the sceptical of some 
 age or country, it is vain, nevertheless, to argue hence 
 against that perception of certain denned truths, of which 
 every man is conscious. Indeed these doubts not only 
 contradict themselves, but are, after all, nothing more than 
 eccentric opinions of an extremely small minority, entitled 
 to no consideration whatever, when placed beside the com- 
 mon sense of the bulk of mankind, and the close and sober 
 reasonings of some, who, to lay all other claims to considera- 
 tion aside, outweigh, even in number, those who have at- 
 tempted to reason on the other side. 
 
 Those writers, therefore, who have inferred that there is 
 no evidence of a natural law to be deduced from the opi- 
 nions of men, because there has not been in them a perfect 
 uniformity, are compelled to go the whole length of the
 
 Lect. VIII.] OF THE LAWS OF NATURE. 329 
 
 absurd proposition, that nothing can be certain which has 
 ever been denied. 
 
 Some of these sceptics, unable to resist every ray of 
 truth, admit that we may arrive at some sure mathematical 
 conclusions, but contend that no others can be relied on, 
 and that consequently they alone have remained undoubt- 
 ed. But, it may be asked, why are mathematical conclu- 
 sions alone certain? are not many moral, physical and his- 
 torical truths equally susceptible of demonstration or proof? 
 But even in mathematics, men have doubted for a time; 
 as, for example, on the subject of the logarithms of negative 
 quantities, or the negative sign in algebra, &c. All mathema- 
 tical truths ought, therefore, to have been equally doubted. 
 So, also, in natural religion there have always been nu- 
 merous grounds of doubt, and very various opinions; but 
 would any one for this reason suppose that the Grand Lama 
 is not a grand impostor; that Juggernaut is not a monstrous 
 idol of the darkest superstition; that Mahomet was not 
 merely a crafty politician; and that Jesus Christ was not 
 the most sublime, the purest, and the most disinterested of 
 all moral teachers? 
 
 So, in the science of government opinions have at all 
 times been extremely various; but that variety surely does 
 not prove that all our notions of government are equally 
 vague, uncertain and false, and that our own mixed form, 
 for example, is equally defective with those in which there 
 is neither responsibility nor checks and balances. 
 
 Metaphysics have been full of doubts and contradictory 
 opinions; yet who will place the philosophy of Reid and 
 Locke, and Stewart and Brown, alongside of the jargon 
 and learned whimseys of Kant and Leibnitz, Fichte, Hart- 
 ley and Boyle? 
 
 In chemistry every thing has been hoped, wonders ac- 
 complished, and many things questioned or denied; but 
 who would look with utter incredulity on the experiment* 
 42
 
 330 OF THE LAWS OF NATURE. [Lect. VIII. 
 
 of Lavoisier, Ingenhouz, Black, or Sir Humphrey Davey? 
 Who would now resort to the occult and mystical science 
 of Paracelsus, with as much hope of finding truth, as in the 
 pages of a Priestley, a Henry, or a Thompson? And last- 
 ly, every department of natural philosophy has been dis- 
 graced by the most absurd theories; yet who presumes to 
 question the discoveries of Newton, of Halley, of Kepler, 
 of Franklin and others, or at least the utility of most of 
 their philosophy? Hence, nothing can be more unsound 
 than the inference that, because some nations and people, 
 ancient and modern, civilized and savage, have maintained 
 opinions and practices shocking to reason and sentiment, 
 our notions of right and wrong may therefore be equally 
 false and erroneous. 
 
 Secondly. Let us now examine whether there be no 
 other natural law than what is revealed by God in his 
 scriptures. 
 
 Burlamaqui, as we have already intimated, holds that 
 God has invested man with two means of ascertaining the 
 dictates of the natural law, viz. moral instinct, and reason. 
 By the former he admits that he means the same thing that 
 Dr Hutcheson does by the term, moral sense; and that by 
 this faculty man is enabled to know instantly, in certain 
 cases, moral good and evil, by a kind of sensation or taste, 
 wholly independent of reason and reflection. He exem- 
 plifies this in various ways, as, that the pains of others ex- 
 cite our compassion; that gratitude is an emotion involun- 
 tarily felt towards a benefactor; that man naturally loves 
 his species; that ingratitude is a vice acknowledged to be 
 such by every human being, however debased; that vene- 
 ration for age, respect of parents, honesty, sincerity and 
 justice are naturally preferred by all men, (though their 
 practice is often different) to their correspondent vices; and 
 he thinks that no other account can be given of these sen- 
 timents, than that Deity has chosen so to form us; and final-
 
 Lect. VIII] OF THE LAWS OF NATURE. 3^1 
 
 ly, that this quick and lively faculty is particularly neces- 
 sary to the bulk of mankind, who are incapable of much 
 ratiocination, and who, if it were otherwise, would do bet- 
 ter with this moral instinct, which has no occasion to wait 
 for the deliberations of the mind, than to rely on reason, 
 since numbers of human beings, ever so capable, do not 
 care to reflect about any thing. He then adverts to the ob- 
 jection, that there have been, and still are, many savage na- 
 tions apparently indifferent to these sentiments; but he is 
 inclined to doubt, not only the accuracy of many accounts 
 given us by voyagers and travellers as to the shocking 
 depravity of nations, but the inferences which philosophers 
 have deduced from them. He justly concludes that we 
 arc often mistaken or ignorant as to the true reasons on 
 which certain revolting customs and practices are founded, 
 and that if what we call vices, are ever virtues with them, 
 it is because they have greatly abused their reason and 
 moral nature, and have been gradually led by controlling 
 circumstances to pervert and misapply good principles. 
 With respect to some customs and practices of enlightened 
 nations, he contends that the abuse of a virtue is no proof 
 of its non-existence; that shame and modesty, chastity, 
 and love of offspring, are all natural, but that by irregular 
 and debauched lives these powerful sentiments may be 
 nearly extinguished; and that % it would be as fair to argue 
 that self-love is not an inherent and natural principle, be- 
 cause men, through passion or other motives, sometimes 
 squander their substance, tear their limbs, and sacrifice their 
 lives; as that gratitude, honesty, compassion, abhorrence of 
 murder, &c. are not the natural products of the human 
 mind and heart, because men often practise the opposite 
 vices. 
 
 Mr Ward, on the other hand, in his treatise on the Laws 
 of Nations, wholly denies the sufficiency of reason and 
 moral instinct to acquaint us with the dictates of natural
 
 332 OF THE LAWS OF NATURE. [Lect. VIII. 
 
 law, as a universal rule of action. . He denies the existence 
 of that faculty, call it what you will, which is said to ena- 
 ble us to distinguish, in most cases, between right and 
 wrong. He contends, not only that the contradictory opi- 
 nions of different nations, and of the philosophers of the 
 same nation, prove that there is no such thing as a univer- 
 sally obligatory natural law, but that we can with no pro- 
 priety appeal to the existence of any opinion as even evi- 
 dence of its truth, unless that opinion be universally 
 adopted. The learned author admits, however, that every 
 man must be guided by his reason, and may in most cases 
 discover what is proper for him to do or to avoid, and thus 
 becomes a law unto himself; but he says that no man, nor 
 set of men, are competent to point out rules of action obli- 
 gatory on the human species, and that neither natural rea- 
 son, natural conscience, nor both united, are able to digest 
 a certain and fixed rule for the guidance of our moral conduct. 
 This, he thinks, is altogether the gift of divine revelation, 
 which imposes a code of private and public ethics, obliga- 
 tory only on such nations as have embraced Christianity and 
 Judaism; and there can be no law of nature and of nations, 
 of universal obligation, until the whole world shall have 
 adopted the scriptures as the common standard and rule of 
 faith. He enumerates many shocking practices in which 
 savage and civilized nations have indulged, and which he 
 relies on as proving great diversity of opinion on the sub- 
 ject of morals and natural law, and consequently that 
 no rules derived from nature, can be sure and obligatory 
 on all. 
 
 Having explained the opinion of this ingenious writer, I 
 propose to examine it with some attention, as it is essenti- 
 ally obnoxious to nearly all the objections which might be 
 made to most of the foregoing theories. 
 
 First. It must be admitted to be at all times an unsound 
 mode of reasoning, to argue from matter of fact to matter
 
 Lect. VIII.] OP THE LAWS OF NATURE. 333 
 
 of right, or, in other words, that because things exist, they 
 rightfully exist. So, on the other hand, it is equally illo- 
 gical, and indeed eminently absurd, to argue from matter 
 of right to matter of fact, as the whole history of man la- 
 mentably shows. Admitting, then, the truth of the histo- 
 rical facts relied on by Mr Ward as tending to prove that 
 every species of conduct which we consider criminal, un- 
 natural and abominable, has nevertheless been practised and 
 approved by various nations, the inference is far from just 
 and logical, that these actions are not criminal in the sight 
 of God, and condemned of sound reason and natural con- 
 science. The fact of their being practised, is not even 
 presumptive evidence of their being rightfully practised, 
 because, if such facts are evidence either of the innocence 
 of these actions, or of the errour or uncertainty of our 
 opinions, we might then, with equal and greater propriety, 
 appeal to the contrary practices of nations, as strong evi- 
 dence of the correctness of our views. I say there would 
 be greater propriety in such an appeal, because, first, the 
 fact is undeniable, that what we call moral virtues have 
 been almost universally regarded as such, in every nation 
 and age, the contrary practices being either very limited 
 exceptions, or sustained by very doubtful authority; and 
 secondly, because the clearest reasoning, and the strongest 
 moral feelings of enlightened man, assure us of the intrin- 
 sick nature of good and evil, and of the manifest bounda- 
 ries that distinguish the one from the other. If reason 
 and moral feeling be of any worth; if civilized and edu- 
 cated man be a more noble being than the savage and bru- 
 tal Indian; if wisdom have any claims over ignorance; we 
 are entitled to assert that our opinions are right, and that 
 theirs, so far as they contradict ours, are wrong. 
 
 Secondly. Is it not much more just to suppose that the 
 accounts which we have of these odious customs and prac- 
 tices, have been sometimes misunderstood, often fabricated,
 
 334 OF THE LAWS OP NATURE. [Lect. VIII. 
 
 and generally over coloured, by ignorant, exaggerating or 
 mendacious travellers; and that, when truly described, 
 they may have been the result of gross superstition, of 
 misguided reason, of wicked policy, of stifled conscience; 
 than to regard them as evidence of the total uncertainty or 
 non-existence of any fixed moral principles? 
 
 Thirdly. But why should the practices alluded to, shake 
 our confidence in the certainty of moral discrimination, in 
 the intrinsick beauty of virtue, in the hideousness of vice, 
 and in our capability of perceiving the moral fitness of 
 things; when, at the same time, the particular vices of in- 
 dividuals of our own society have no such effect? All ex- 
 perience teaches us that the most delicate and virtuous 
 minds may by circumstances become so debauched, as to be 
 insensible of all shame, regardless of all crime, and reck- 
 less even of their own personal comfort and safety; and 
 yet no one commonly thinks of questioning, from such ex- 
 amples, the certainty of our moral reasoning and feelings. 
 
 Fourthly. Mr Ward's theory appears to be based whol- 
 ly on the position already shown to be untenable, viz. that 
 a variety of opinions on any subject creates a just doubt as 
 to the correctness of any: and as this position cannot be 
 maintained, the theory falls with it. Hence, if the fullest 
 credence be given to the numerous shocking narratives of 
 human depravity, to be found in Herodotus, Theopompus, 
 Sextus Empyricus, Diodorus Siculus, Csesar, and others 
 among the ancients; and in Tavernier, Hakluyt, Thevenot, 
 Broughton, Marsden, Petit, Mandeville, Marco Polo, 
 Orellaiia, &c. among the moderns; and which have been so 
 industriously collected and commented on by Grotius, Bar- 
 bey rac, Puffendorf, Picart, Taylor, Suarez, Locke, Hume, 
 Bolingbroke, Montaigne, Montesquieu, Ward and others; 
 still we do not perceive how the last mentioned author is jus- 
 tified in concluding, as he has done, that the laws of nature 
 either do not exist at all, or are so confounded with our
 
 Lect. VIII] OF THE LAWS OF NATURE. 335 
 
 prejudices, habits, and peculiar ideas of virtue and happi- 
 ness, or are so variously made up from different casts of 
 thought, and the varying perceptions of man, as to render 
 it impracticable to fix on principles of universal obligation.* 
 And to sustain him in this conclusion, he resorts to several 
 positions as premises, which we can by no means allow 
 him. He says, 'of man's nature I can obtain no know- 
 ledge except through the same channels by which I become 
 acquainted with the nature of other animals; nor can I tell 
 what it is that nature demands of man to do, except by in- 
 quiring what he has actually done.'t 
 
 It is impossible to yield our assent to these positions, 
 unless it be proved that man universally, or even usually, 
 acts according to his moral nature, and the lights which he 
 really possesses. Had man in all nations and ages pursued 
 his true interest, and acted up to the obvious dignity of his 
 nature, the inquiry into what he has actually done, could 
 not fail, in that case, to unfold to us a faithful picture of his 
 real nature. But Mr Ward's position is incorrect, we 
 think, for another reason, viz. that it is not true that we 
 have no other channel or means of knowing man's nature, 
 than what we possess in regard to the brute creation. 
 Brutes act by unerring laws, in obedience to unbending in- 
 stincts; for this reason, there can be no swerving from their 
 respective natures; we are therefore very certain of cor- 
 rectly understanding their nature, when we study their in- 
 stincts, habits and actions. It is not so with man. He is 
 a free agent; he may conform to his nature, or depart from 
 it as he chooses; his actions are infinitely various, and no 
 certain judgment can be formed of his intrinsick cha- 
 racter, from contemplating his actions. It is true, we stu- 
 dy his manners, customs, actions; but this we do mainly 
 with the view of ascertaining his present condition, his 
 factitious character. So, if we study the pradiocs of na- 
 
 * Ward's L. of N. 54. 1 Ibid. II.
 
 336 °P THE LAWS OP NATURE. [Lect. VIII 
 
 tions it is chiefly with the intent to learn their particular 
 character, and actual condition; not to draw thence decided 
 conclusions as to man's nature in general. The position is 
 further erroneous, because every man knows his own na- 
 ture, and possesses the power of communicating his know- 
 ledge of that nature to his fellow men. By this continued 
 comparison of character, man has a means of becoming ac- 
 quainted with the nature of his own species, which he does 
 not possess in regard to the nature of other animals. With 
 them we can hold no converse; we do not know what are 
 their ideas (if they have any) as to their own individual 
 character; their nature, then, can be known to us only 
 through the medium of their actions. If we have suc- 
 ceeded in showing that these premises are erroneous, the 
 theory founded on them has been sufficiently answered. We 
 are willing, however, to travel through the whole argu- 
 ment, and perhaps there will not be much difficulty in 
 showing its fallacy throughout. Let us examine a few of 
 the numerous practices of nations, so often alluded to by 
 ancient and modern writers, as evidence that the primary 
 dictates of what we call the moral law, were to these peo- 
 ple utterly unknown, and, consequently, that a natural law, 
 in the sense used by us, can have no real existence. It 
 will be found, we think, that, though taken indiscriminately, 
 we shall discover in all cases a solution of the apparent 
 difficulty, without resorting to the violent conclusion that 
 all moral distinctions are equally uncertain; that none, as 
 such, are obligatory; and that reason is unable to frame 
 such a uniform rule of right and wrong, as shall bind man- 
 kind at all times to its observance. 
 
 The non-existence of the natural law is, indeed, a doc- 
 trine which, if antiquity made all things venerable, might 
 claim for itself a full measure of respect; for Hobbes had 
 his prototype in Carneades. The celebrated opinion of 
 that ancient academician, as preserved by Lactantius, is
 
 Lect. VIII.] <)F THE LAWS OF NATURE. 337 
 
 nevertheless, we think, unmixed absurdity. We shall, 
 however, quote the passage, which may be thus rendered. 
 'Laws were approved by men for their utility: they are 
 consequently often changed by customs and by times, 
 according to the views of those by whom they were ori- 
 ginally constituted. But there is no natural law. All 
 men, as well as all animals, are conducted to their various 
 kinds of utility by their respective natures. Hence, there 
 can be no justice; or, if there be any, it must be extreme 
 folly in those who allow it, since, in consulting the good of 
 others, the just would thereby prejudice themselves!' 
 This philosopher of course supposed that utility was alto- 
 gether individual, and could be promoted only by the sel- 
 fish appropriation by each man, of all that he could get; 
 and that nothing but extreme folly could induce any one to 
 respect the claims of others. Comment on such a philoso- 
 phy were needless. 
 
 We now proceed to examine some of the vicious customs 
 and laws so often relied on by those who follow the doc- 
 trine we have been so long endeavouring to impugn. 
 
 1. Herodotus, among very many like prodigies, relates 
 that the Babylonians have a custom by which every wo- 
 man, a native of the country, is obliged, once in her life, 
 to attend at the temple of Venus, and prostitute herself. 
 Any stranger passing by, threw her a piece of money de- 
 dicated to sacred purposes, as an indication of his choice; 
 and women even of the highest rank never failed to com- 
 ply with this law.* The fact was no doubt so, as it is ve- 
 rified by other authorities; but it is to be remarked that the 
 origin of the law is not sufficiently explained, and the narra- 
 tives of Herodotus are to be taken with some allowance, as 
 this 'Father of History' is known to have been extremely 
 credulous, and much given to fable. This was his reputa- 
 
 * Herod. Lib. 1. § 199. 
 43
 
 33S OF THE LAWS OF NATURE. [Lect. V1I1. 
 
 tion even among the ancients. Hence Cicero says, '*/2pud 
 Herodotum, patrem histories, et Theopompum sunt in- 
 numerabiles fabulsR.^ 
 
 2. Among the Saheans one woman was the wife of a 
 whole family; and in some countries women were privi- 
 leged to have any number of male concubines, by which 
 means fathers could not be ascertained; and mothers were 
 rendered equally uncertain by the practice of changing the 
 infants as soon as they were born.t But even in these 
 countries, and with these abominable practices, the general 
 dictates of nature and reason may have been known and 
 respected. Reason is often perverted on particular points, 
 and grossly misapplied by overweening prejudices, when 
 the heart and mind, in most other respects, are preserved 
 in purity. 
 
 3. Zoroaster allowed parents and children to marry, and 
 the Magi, who followed his laws, permitted no one to be 
 of their body, if not the offspring of such a connexion. 
 Can there be any doubt that this was owing to some power- 
 ful superstition, that applied, perhaps, a sound rule of morals 
 to a wrong set of facts, and thus produced this great moral 
 deformity? And Csesar also relates that among the Bri- 
 tons 'Uxores habent deni duodenique inter se communes, 
 et maxime fratres cum sororibus, et parentes cum liberis.'J 
 
 4. Infanticide has been practised by various nations. 
 The Spartans considered children as belonging rather to 
 the state than to their parents. To enable them to defend 
 their country, they resorted to a most rigid physical edu- 
 cation. Reason and morals yielded to military zeal, and 
 under the mistaken idea that infants of slender constitution 
 might prove rather a burthen than a defence to the state, 
 they had them submitted to the examination of tryers, on 
 whose favourable report they were not only suffered to 
 
 * Cic. de Leg lib. I ca. 1. f Diod. Sic. Lib. 2. 
 
 I Caesar Dc Bel. Gal. lib. 1. c. 5.
 
 Lect. VIH.] OF THE LAWS OF NATURE. 339 
 
 live, but were thoroughly educated to arms; but if pro- 
 nounced irreclaimable, were cast into a deep cave on mount 
 Taygetus. The like cruelty was practised among the The- 
 bans; and, for a different reason, the Chinese do the same 
 thing at the present day. 
 
 That infanticide violates both reason and nature, cannot 
 be denied; but how often is the voice of humanity and of 
 reason stifled by the strong necessities, actual or supposed, 
 of state policy; and how often does the repetition of crime 
 lessen the horrour of its first commission, until the hated 
 act at length becomes almost venerated from age and un- 
 opposed custom? 
 
 5. Various nations have not only permitted, but some- 
 times encouraged, what with us are called incestuous con- 
 nexions. By a law of Solon, an heiress was compelled to 
 marry her next of kki, and a wife whose husband was impo- 
 tent, might cohabit with her husband's nearest relative. 
 Brothers and sisters were also permitted to intermarry, and 
 frequently did so. 
 
 These practices of civilized and savage nations in regard 
 to marriages, have raised a question whether incest is ever a 
 crime jure naturae: whether it is ever malum in se. It 
 has by some been contended that our abhorrence of such 
 connexions is to be ascribed wholly to the fact that we have 
 received our moral code from the Jews, among whom it 
 became odious in consequence of the positive law of God; 
 but that it is not against the jus primarium, or primary 
 law of nature. This controversy is not yet settled among 
 the casuists, nor do we intend any minute discussion of its 
 merits. We may remark, nevertheless, that revolting as all 
 such marriages justly are, (knowing as we do that they vio- 
 late, not only the express law of God, but our established 
 notions of the decencies of life,) yet it was entirely otherwise 
 among the Greeks, Persians, Egyptians &c. who had no 
 knowledge of the law of God, and were led away by vari-
 
 340 OF THE LAWS OF NATURE. [Led. VIII. 
 
 ous circumstances from the delicate and accurate views 
 which we entertain on the subject. And though mere rea- 
 son would, on due examination of their consequences, lead 
 us to condemn all such marriages between persons closely- 
 related, yet the intrinsick difficulty of establishing the le- 
 gitimate boundary of such connexions, seemed to pray the 
 assistance of divine positive law to settle the doubts which 
 might otherwise arise. To what extent, if any, this is a 
 merely positive prohibition, or whether it be in whole, or 
 in part, a dictate of the jus naturae, affirmed by the scrip- 
 tures, is to the christian a point, perhaps, of no peculiar in- 
 terest. To the mere moralist, however, the question is im- 
 portant, for it is not sufficient that the notions of society 
 are strongly against all such connexions. It behooves him 
 to have some comprehensible rule on the subject, and that 
 he should know the grounds of that repugnancy. As so- 
 ciety is constituted with us, there is no difficulty in tracing 
 the source of that abhorrence with which we contemplate 
 such connexions as amount to either civil or natural incest. 
 And here it is necessary to distinguish between these two. 
 Natural incest is sexual intercourse between persons related 
 to each other in the ascending or descending line. Civil 
 incest is the like connexion between those who are collate- 
 rally related. As to the former, it is so obviously against 
 the course of nature, or so inevitably pollutes the purest 
 sources of some of our best affections, or so necessarily con- 
 fuses rights and duties which ought to be distinct, that rea- 
 son and natural feeling, if not greatly perverted, unite at 
 once in declaring it to be malum in se, and a violation of 
 the primary law of nature. In regard to the latter, viz. 
 civil incest, though it be forbidden by the law of God, and 
 is offensive to the established decorum of most societies, it 
 is, by some opinions, not malum hi se, and violates no 
 fundamental rule of natural law. Yet in so far as concerns
 
 Lect. VIII.] OF THE LAWS OF NATURE. 341 
 
 the order and quiet of society, it may be difficult, in many 
 cases, to distinguish it from the former. 
 
 Under this distinction between natural and civil incest, it 
 is held that all marriages in the ascending or descending 
 line, however remotely related the parties may be, are na- 
 turally unlawful. There is a quick sentiment of detestation 
 against natural incest. Reason at once perceives that the 
 order of life is invaded, that the veneration due to age, the 
 protection due to youth, and the rights and obligations of 
 relatives, would be utterly confounded by such connexions. 
 The heart and mind unite in revolting at this departure from 
 nature, which 'propagates by succession of one generation 
 upon another, and not by those we breed, or through whom 
 we have been bred.' Such marriages may therefore be de- 
 clared unnatural, shocking and unlawful jure naturse. But 
 civil incest, however abominable it sometimes is, however 
 clearly within the degrees prohibited by divine positive 
 law, and however it violates the decorum of society, is still, 
 in the opinion of many, malum prohibitum, and does not 
 violate the jus primarium. Hence, persons related to 
 each other in the collateral line, even in the first degree, as 
 brothers and sisters, do not violate the primary natural law 
 by their intermarriage. Hence, those nations, civilized and 
 savage, that tolerated civil incest, violated no immutable 
 law of nature, no divine law, no law of man. The first 
 has not forbidden it, the second was unknown to them, and 
 the last, so far from forbidding it, often encouraged, and 
 sometimes commanded it. In a society where Christianity 
 prevails, and where the laws and usages of the people forbid 
 such connexions, it argues the greatest depravity to violate 
 public decency by such a marriage, as it breaks in upon 
 one of the strongest trusts reposed in man, invades the 
 sanctity of private life, and proves the wretch who is guilty 
 of it, capable of violating all other confidences the most 
 sacred.
 
 342 OF THE LAWS OF NATURE. [Lect. VIII. 
 
 Inattention to the distinction, delicate as it sometimes is, 
 between natural and civil incest, occasioned no doubt the 
 unwarrantable inference, that incest generally is merely 
 malum prohibitum, and that it violates in no case the 
 pudor naturalis; a conclusion not only false, but unsus- 
 tained by the alleged practice of incest in the infancy of 
 mankind. It is not true that natural incest was ever per- 
 mitted by God, or practised in the infancy of mankind. 
 As God, in his wisdom, did for a time permit mankind to 
 be propagated through the medium of what is now called 
 civil incest, the just presumption is, that this does not 
 contravene the primary law of nature. In after times, he 
 saw fit to prescribe the exact limits within which col- 
 laterals might marry; but this was a regulation wholly po- 
 sitive, founded, indeed, on infinite wisdom, and an accurate 
 foreknowledge of man's nature, and in no degree impugn- 
 ing his own eternal law. If no distinction be made be- 
 tween natural and civil incest, and the moralist will not be 
 bound by the Levitical degrees, it will be impossible for 
 him to ascertain the point at which the law of nature, 
 ceases to prohibit the union. If the ascending and descend- 
 ing lines be wholly excluded, and positive law should for- 
 bid a union between persons in the collateral lines, within 
 certain degrees, none will be found more consentaneous to 
 reason, and the order of societies in general, than those 
 prescribed in the law given to the Jews. All christian na- 
 tions, however, have not adopted the Levitical degrees. 
 In some countries, marriages within the whole ascending 
 and descending lines, and those within the first degree 
 only in the collateral line, are referred to the law of nature, 
 and are held to be void by a rule obligatory on all nations. 
 In others, the forbidden degrees in the collateral line are 
 carried beyond the first degree, and even beyond the Le- 
 vitical degrees. Sufficient has been said on this point to 
 show that the different customs of nations in regard to mar-
 
 Lect. VIII.] OF THE LAWS OF NATURE. 345 
 
 riage between relatives, can furnish no argument against 
 man's ability to discover the law of nature. * 
 
 6. It is also said that, when Rome was the seat of re- 
 finement, and when its philosophers descanted on morals, 
 many things were approved which violate our notions of 
 the laws of nature; as, for example, that the accomplished 
 Cato lent his wife Marcia to his friend Hortensius, and 
 that this was usual among the Romans, in order to improve 
 the race. That we may justly understand this anecdote, 
 however, it would be requisite to take into account all the 
 views, legal and moral, which the Romans entertained con- 
 cerning the contract of marriage, and the free right of re- 
 pudiation exercised, as well by the wife as by the husband. 
 It is said, moreover, that Marcia was regularly repudi- 
 ated by Cato, and then legally married to Hortensius, and 
 that she was remarried to Cato after the death of Horten- 
 sius. To us these practices seem extremely revolting; but 
 their existence among a moral and refined pagan nation, is 
 no proof that the laws of nature have no foundation in 
 immutable truth; but only that, on some points, reason may 
 be perverted by licentiousness, by false prejudices, by 
 tyranny, and many other causes. Improper laws and cus^ 
 toms often obtain among a people against the known dic- 
 tates of their reason and conscience, and are by no means 
 to be relied on as proof of their ignorance of the truths 
 they so constantly violate. 
 
 7. The Tartars, according to Hakluy t, have a strange cus- 
 tom. 'When any man's father deceaseth, he assembleth all 
 his kindred, and they eat him!' We are informed by the 
 
 * Vide Grotius De Jure B. et P. lib. 2. cap. 5, sec. 12, 13; Puff. L. N. & 
 N. lib. 6, cap. 1, sec. 32; Pliny's Nat. Hist. lib. 8, cap. 42; Memora. Socra. 
 lib. 4, cap. 4, sec. 20, 22; Selden De Jure N. & G. &c. lib. 1, cap. 5; But- 
 ler v. Gastrin, Gilbert's Equity Reports, 156; Harrison v. Burwell, Vaugh- 
 an's Reports, 206; Burgess v. Burgess, Haggard's Reports, 886; Wightnian 
 v. Wightman, 4 Johnson's N. York Chancery Reports, 343.
 
 344 OF THE LAWS OF NATURE. [Lect. VIII. 
 
 same authority, that the people of Thibet used to eat the 
 bodies of their parents, in order that they might have the 
 most secure of all sepulchres; and that they made cups of 
 their skulls. Picart says that the Floridians ground the 
 bones of their deceased relatives, and drank the powder; 
 the inhabitants of Socatara waited not for the expiring 
 breath of their kindred, but buried them alive; and the 
 people of Java were accustomed to sell their old men to 
 the Anthropophagi, or man-eaters. It is quite probable that 
 these accounts are highly coloured, and it is very certain 
 that naked facts, when stated without any of their reasons 
 and accompanying circumstances, are frequently extremely 
 shocking; but when explained, are sometimes innocent, 
 and even meritorious. It is well known that the voyages 
 and travels given by Hakluyt, are remarkable for want of 
 veracity, and for the extreme cullibility of their authors. 
 Mr Locke remarks of this writer, that 'he was no travel- 
 ler himself, but stuffed his works with stories taken on 
 trust from Tavernier, whose travels are full of mistakes, 
 and from Picart, whose works arc filled with trash.' 
 
 S. Speed relates that the ancient Anthropophagi of Ire- 
 land were accustomed to serve up, as a rare delicacy, the 
 mammaj of women; and Picart assures us that the Antis of 
 South America cut their prisoners piecemeal, while alive, 
 and their women, smearing their breasts with the reeking 
 blood, suckled their children. He further tells us that the 
 Brazilians used to fatten their prisoners, and then eat them; 
 that the widows of African kings are compelled to poison 
 themselves on the demise of their husbands; and lastly, 
 that the Mexicans adored an idol formed from every 
 known seed, kneaded with the blood of infants! A thou- 
 sand such disgusting accounts, true and false, might easily 
 be enumerated; but we involuntarily turn from them, hap- 
 py in the belief, also, that they are to little purpose in the 
 argument, since, if admitted in all their shocking bareness,
 
 Lect. VIII.] OF THE LAWS OP NATURE. 345 
 
 they only prove, what has never heen denied, that man, 
 with all his boasted reason, and capacity for virtue and 
 knowledge, is often inconceivably wicked and ignorant. 
 Still, these practices can no more be said to establish his 
 inability to discover truth, and to practise virtue in obedi- 
 ence to fixed laws, than would the practice so uniform 
 among Indians, of enumerating wholly by the fingers, 
 prove man's inability to discover solely by the light of rea- 
 son, the fixed and infinitely various principles of arith- 
 metic. The science of numbers, so truly wonderful, is 
 now well known; and so is the science of morals. Theo- 
 logians, when contending for the necessity of revelation, 
 do not say that the fundamental principles of morals 
 are not as demonstrable as those of other sciences. It is 
 those great truths of our religion which are apart from a 
 mere moral system, that are wholly above reason, and were 
 therefore revealed; and in order to dissipate every uncer- 
 tainty which the perversity of man might introduce into 
 matters of such vital interest as sound morals, the dictates 
 of reason and conscience have also been expressly confirm- 
 ed by the scriptures. This is all, we suppose, that the 
 learned and pious Pascal meant in speaking of the revela- 
 tion of moral principles. The pride of man is extremely 
 apt to place too much reliance on mere reason, while chris- 
 tian zeal is perhaps too willing to give up reason altogether. 
 But to proceed. 
 
 Perverted as man really has been in all ages, his pic- 
 ture ought not to be drawn from such materials as we 
 have collected from ancient and modern travellers. Af- 
 ter all they have written, we are enabled to form only 
 very crude notions of the real character, individual or na- 
 tional, of the people whom they have visited. Their man- 
 ners, customs and laws are but imperfectly described, and 
 almost always without their attendant motives and circum- 
 stances; so that often no sound judgment can well be 
 44
 
 340 OF THE LAWS OP NATURE. [Lect. VHL 
 
 formed concerning them. A traveller, however intelli- 
 gent, observant and candid he may be, sees things imper- 
 fVctly. But this class of writers love the marvellous, and 
 know that their readers are in this respect like themselves. 
 They are generally in search of prodigies, and their imagi- 
 nation, added to their usual carelessness in examining facts 
 and reasons, often from want of time, produces a caricature, 
 instead of a likeness, of the people they describe. When 
 we add that they are often unacquainted with the language, 
 religion, superstition, prejudices and history of the people 
 whom they describe, we need not wonder that these mon- 
 strous deformities, intellectual, moral and physical, have usu- 
 ally disappeared as the remote countries described by them 
 have been subsequently explored. In regard even to the 
 Anthropophagi, it is quite probable that, were their history 
 thoroughly known, we .should have less occasion to be 
 shocked; although Sextus Empyricus is pleased to say, that 
 such is the natural proclivity of man to feed on man, that 
 the first law which was made after the social compact, was 
 to prohibit men from eating each other. The Floridians, 
 in more recent times, and the Brazilians, also, had no such 
 customs as those we have stated from the early travellers 
 into those regions; and such customs do not easily yield 
 to the lapse of a century or two, unless when a new reli- 
 gion is forced on the people by foreign nations. The en- 
 lightened travellers of our own day see but few of the 
 prodigies which were related only a couple of centuries 
 past, of a people who since that time have held scarcely 
 any intercourse with other nations, and cannot therefore be 
 supposed to have changed. The Giants, Pygmies and Her- 
 maphrodites; the Monosceli, or one legged people, the 
 Monoculous, or one eyed people, the Blemmyes, or head- 
 less people, of Africa, the Cynocephali &c. &c. ; all of whom 
 have been gravely described by travellers, have entirely 
 disappeared in this age of general illumination, which has
 
 Lect. VIII.] OP THE LAWS OP NATURE. 347 
 
 ranked geography among the sciences. If. then, the mere 
 visible and physical characteristics of man; his stature, form 
 &c. have been so strangely misunderstood, or intentionally 
 misrepresented, (as they must have been, since neither 
 time nor civilization could effect, any change in these, had 
 they existed,) it is nowise surprising that laws and customs, 
 and complex institutions should have been still more gross- 
 ly misapprehended. We are justified, then, in concluding 
 that we are not sufficiently acquainted with the practices 
 to which we have alluded, to draw any very decided infer- 
 ences from them; and that, even were all true, they do not 
 establish man's ignorance of the primary rules of natural 
 law, or the essential indifference of all moral sentiments. 
 The people thus painted, had confessedly many virtues, and, 
 in all other cases, practised the very moral rules of which 
 these particular customs would seem to prove them ignorant. 
 It would, moreover, appear an absurd proposition, even to 
 the most ignorant human being, that it is a matter of to- 
 tal indifference how he thought, as his opinion was proba- 
 bly as good as any body's else, seeing that even such a 
 being would always recognize some standard of truth, and 
 would adhere to his notions because he deemed them to 
 approach this standard. Yet this is certainly the unvar- 
 nished meaning, and the necessary tendency of the doc- 
 trine I have endeavoured to impugn. 
 
 And this brings me, in conclusion of this subject, to the 
 last inference that has been drawn from the notion that 
 there is no natural law, viz. that the general prevalence in 
 any age or country, of customs founded on the opinions of 
 the people, takes from such customs all imputation of cri- 
 minality, or, at least, so greatly extenuates them, as to ren- 
 der actions which are highly sinful with us, nearly innocent 
 in them. There can be no doctrine in law or in morals, of 
 a more dangerous tendency than this. It is one which has 
 been often used, even with us, to gloss over the heinousness
 
 348 OF THE LAWS OF NATURE. [Lcct. VIII. 
 
 of crime. Every vice of superstition, of misguided reli- 
 gion, of political phrenzy, has sought extenuation, and 
 sometimes found justification, in this principle. Most of 
 the pernicious theories in morals have heen respected, and 
 their authors screened from merited opprohium, through this 
 supple doctrine. The philosophy of Carneades, of Spino- 
 sa, of Hobbes, of Collins, Shaftesbury, Rousseau, Helve- 
 tius, Hume, and of many others, takes rank with that of 
 the Q ost orthodox writers. But we apprehend that the 
 enormities of savage life, and the licentiousness of civilized 
 people, can never be excused when not founded in invinci- 
 ble ignorance. Any moral system which compliantly 
 moulds itself to the varying fashions of the times; any 
 custom which seeks justification from general prevalence, 
 and long use; must be practically mischievous. If the man- 
 ners of the age, however general, are to soften the odious 
 lineaments of vice, then may the grossest superstition be 
 denominated religion; the most shocking persecutions, mere 
 party zeal; and the most loathsome vices, sheer ignorance. 
 The mild policy of a Trajan is no more meritorious than 
 the ambition of an Alexander, a Tamerlane, or a Zingis- 
 Khan. The murderers of Henry IV. of France, and of 
 Henry II. of England, would then be mere zealots. So, 
 also, in the private transactions of life, the worst of men 
 may thus be excused, the most shocking crimes pardoned. 
 The individual (it might be argued) was not well educated; 
 his morals were greatly neglected in his youth; the like 
 offences were long prevalent amoi:g his associates; their 
 manners and customs were familiar to him, and consequent- 
 ly his crimes are scarcely to be regarded as such. This, in 
 truth, is the substance of the argument fairly deducible 
 from the doctrine under consideration; and its absurdity is 
 made only a little more manifest by an example, and by 
 putting it in higher relief.
 
 
 Lect. VIII.] OF THE LAWS OP NATURE. 349 
 
 I am quite sensible that the topicks of this section of the 
 lecture, have been dwelt on tediously, and perhaps unne- 
 cessarily. But the philosophy of universal jurisprudence 
 is very closely allied to sound morals. The precepts of the 
 jus naturas are, indeed, the laws of laws; remove this foun- 
 dation, and all instituted laws would become as the morn- 
 ing vapours. We conclude, therefore, that notwithstand- 
 ing the cavils and sophims of idle and subtle philosophy, 
 the opinion is just and sensible which espouses the side of 
 natural truth. This, we contend, is ascertainable through 
 the reason and moral feelings of man; is based on the na- 
 tural fitness of things; and is independent of all consent, 
 manners and laws of men. This, it appears to me, places 
 the laws of nature on their true basis: it makes them 
 neither intuitive, nor yet dependant merely on human 
 opinion. It admits that a system of rules, if not disco- 
 verable by the moral sense, as understood by Dr Hutche- 
 son, is yet ascertainable by a ratiocinative process, often so 
 rapid, and yet so unerring, as to amount to nearly the same 
 thing; and is, at the same time, strengthened by a natural 
 admiration of the beauty of virtue, and an abhorrence of 
 the deformity of vice. 
 
 n ) whether Hob- * spoke in a former lecture of Hobbes's 
 bes's doctrine, that celebrated hypothesis, that the state of 
 nature did not insti- . c . , .-i. 
 
 tute soc.ety, but dis- nature 1S one of vvar ' or continued hostlll- 
 cord among men, jus- ty. From this theory his criticks have 
 
 tines the conclusion , ,, ■ • ., , _• . • 
 
 ... , ., . drawn the conclusion, that society is 
 
 of his criticks, that J 
 
 society is against the against the design of nature; but this in- 
 design of nature. ference does not appear entirely just. 
 Nature has not produced man with the powers of speech, 
 or the ability to reason justly; and yet no one concludes 
 that man is acting against the design of his nature, when he 
 is cultivating language or reason. Hobbes's idea, that na- 
 ture placed man in a state of separation and discord, rather 
 than of society and peace, is entire reconcileable with the
 
 J50 OF THE LAWS OF NATURE. [Lect. VIII. 
 
 principle, that society is in the highest degree consistent 
 with our nature, and promotive of our best interests. The 
 passions unsubdued naturally lead us into excesses; but so 
 far from acting against the design of nature, when we con- 
 trol them by a cultivated reason, and a guarded conscience, 
 we are then fulfilling the highest behests of him who made us. 
 The warlike relation in which, according to this hypo- 
 thesis, the first rude and ignorant tenants of the earth stood 
 towards each other, if it has any foundation in truth, ori- 
 ginated merely in an over anxious apprehension concerning 
 their safety and interests, which we may suppose subsided 
 into peace and security on the discovery of the probable 
 benefits of social and civil union. So that, even allowing 
 that self-interest, and rancour of man against man, were 
 the chief fountains of human action, reason would soon as- 
 sure us that the most powerful means of advancing our in- 
 terest, is to be found in the establishment of society and 
 o-overnment, and that these, although not established by na- 
 ture, are altogether consistent with her designs. 
 
 (s.) Opinion of That reason may furnish a rule of con- 
 
 Hobbes , that the die- (]uct but nQt & ]&w of Qat appears to 
 
 tates of reason can » * « 
 
 be respected as laws, be a mere verbal nicety. Hobbes thus 
 
 only as far as God or expresses himself on this subject. 'If 
 man has enacted them 
 
 as suc h. the laws of nature, so called, are the dic- 
 
 tates of right reason, still they are not to be regarded as 
 laws, except so far as they have been enacted by God in his 
 scriptures, since those laws which we call natural, are noth- 
 ing else but certain conclusions apprehended by reason, 
 concerning things to be done, and things to be omitted, and 
 since law, in a proper sense, is only the speech of him who, 
 by virtue of his right, commands men to execute, or to ab- 
 stain from some performances; therefore they are not laws 
 as they proceed from nature, but only as they are enacted 
 by God in scripture.'* And in other places he asserts that 
 
 * Hobbes De Cive. chap. 3, sec. last. Puff. lib. 2, ch. 3, sec. 20.
 
 Lect. VIII.] OP THE LAWS OF NATURE. 351 
 
 good and evil are ascertained solely by civil institution, 
 and that moral obligations proceed from the laws of society, 
 and not from those of nature. 
 
 In reply to this distinction, it is perhaps sufficient to say, 
 that it is not essential to a law that it should be conveyed 
 to the subjects' knowledge in any particular form. It is 
 immaterial how the sovereign's will is ascertained, whether 
 by revelation, inspiration, moral instinct, moral sense, 
 common sense, right reason, moral sentiment; for these are 
 not the law of nature, but the means of discovering it; so 
 that if we arrive at this knowledge through the most cau- 
 tious efforts of reason, we are as much obliged by the com- 
 mand of God, as if he had vouchsafed expressly to reveal 
 his will to us. 
 
 But perhaps Hobbes intended something more than to 
 question the obligatory force of natural precepts, on the 
 score of their not being, as he supposed, properly promul- 
 gated. When contemplating the penalties which reason 
 declares to be consequent on the violation of the natural 
 law, it might easily have occurred to so sceptical a mind as 
 his, that we had no certain knowledge that these penalties 
 were thus attached, and, consequently, that there would be 
 no obligation until they were, so to speak, officially pro- 
 nounced. He might also have supposed, as some others 
 since his time have clone, that as a penalty is essential to a 
 law, if the penalty were the only source of obligation, we 
 might choose to incur the penalty; a sort of reasoning 
 which resolves all obligation into mere compulsion, and is, 
 indeed, at variance with the whole theory of the cause and 
 extent of mora! obligation. Hobbes himself argues that, 
 as the atheist never acknowledges his submission to the 
 will of God, and as no one can have sovereign power over 
 us without our consent, therefore the atheist, never having 
 been under God's sovereignty, is not responsible for diso- 
 bedience to his decrees! Whichever of the foregoing no-
 
 352 OF THE LAWS OF NATURE- [Lect. VIII. 
 
 lions may have prompted that philosopher to deny all obli- 
 gation to natural laws, except when revealed by God to 
 those who acknowledge his power, is not of any moment, 
 since none of them have even sufficient plausibility to cause 
 doubt in any mind. In reply to this notion of Hobbes, we 
 may further remark, that the obligation to obey the laws of 
 nature does not spring merely from their being the dictates 
 of right reason, but from a well founded presumption that 
 the author of the universe will not fail to pu.ish the viola- 
 tion of his own moral system; and that our obligation does 
 not rest in any degree on our assent to the sovereignty of 
 God, but on his boundless power to compel obedience, his 
 infinite wisdom, and his perfect benevolence, which, while 
 they have made good and right convertible terms, have 
 mingled in every bosom, perhaps, an abstract love and ad- 
 miration of virtue, independent of all selfish considera- 
 tions. 
 
 (9.) Of the Pri- AH who have treated natural junspru- 
 mary and Secondary . 
 
 laws of nature. dence, from Aristotle to our own day, 
 
 have recognized a twofold division of natural law, under 
 different names indeed, but all meaning essentially the same 
 thing. By some these divisions are called the primary and 
 secondary laws of nature; by others, proper and reductive, 
 and again by others, absolute and hypothetical. Closely 
 allied to these, if not the same, are what are called the per- 
 missive* and mandatory laws of nature. These expres- 
 sions may therefore he indiscriminately used. The words 
 'primary' and 'secondary' are adopted by Heineccius, Bur- 
 lamaqui and others; but Grotius and Pufiendorf use the 
 words 'proper' and 'reductive,' 'absolute' and 'hypotheti- 
 cal.' 
 
 The primary law (jus prima '.riumj is that which arises 
 from the primitive and essential nature of man, affects him 
 under all possible relations, has God for its immediate au- 
 thor, and never can be departed from. It enjoins or for-
 
 Lect VIII.] OJ ' THE LAWS OF NATURE. 353 
 
 bids those actions which are right or wrong under all pos- 
 sible circumstances, and embraces in its denunciation only 
 those things which we call mala in se. 
 
 The Secondary law of nature (jus secundarium ) is that 
 which grows out of the relations established by man, as, 
 for example, political union, marriage, property. Strictly 
 speaking, it perhaps comprehends nothing that is malum 
 in se; but it imposes a moral obligation to its observance, 
 and sometimes includes in its prohibitions things so mani- 
 festly prejudicial, that the casuists have found it difficult to 
 say whether they were not more properly referrible to the 
 head of things mala in se, and as such embraced by the 
 primary law of nature. 
 
 The explanation given of the Absolute and Hypothetical 
 laws, shows that those who have used these terms, meant 
 precisely what has been just stated. Dr Taylor says, 
 'the absolute laws of nature oblige absolutely all persons, 
 at all times, and in all places, for they are immutable; the 
 hypothetical laws oblige only conditionally, that is, sup- 
 posing such and such conditions or relations of man actually 
 to exist.'* So likewise, things are said to be referred to 
 the law of nature either -properly or reductively, and Gro- 
 tius uses these terms to distinguish things due in strict jus- 
 tice, from such as justice does not contradict. Under the 
 former he ranks perfect rights, and under the latter those 
 which have been called imperfect.! 
 
 Burlamaqui considers the secondary natural law as con- 
 sequent on the primary, and that it is nothing more than a 
 just application of the general rules of the primary law to 
 the circumstances of man, as they arise out of his own acts: 
 and Dr Taylor, in speaking of the hypothetical law, evi- 
 dently means the same thing when he says, that this law 
 h3S only a possible or contingent existence, whereas the 
 
 * Taylors Civil Law, l-'S, 130. t GrotiusPe Jure B. ac P. lib. 1 ca. 1. 
 4 5
 
 354 OF THE LAWS OF NATURE. [Lect. VIII. 
 
 absolute law is eternal. The former, therefore, is said to 
 be in posse, the latter in esse. 
 
 All admit, however, that this secondary or hypothetical 
 law, when called into operative existence, is the law of na- 
 ture; and being approved by reason and conscience, is mo- 
 rally binding. It is not a new law, but existed as natu- 
 ral law before the occurrence of those circumstances to 
 which it is now made to apply. An example or two may 
 illustrate the distinction alluded to. Society, though re- 
 commended, is not commanded by any law of nature; but 
 when instituted, all the rights and obligations which grow 
 out of it, are based on the secondary law of nature. The 
 obligation to perform all our just promises and engage- 
 ments, and to obey the laws of the land, is referred to this 
 secondary law. So, also, the duty to abstain even from 
 theft, is, in the opinion of some, referred to the jus secun- 
 darium; for in this way is Dr Taylor to be understood, 
 when he says that if civilians declare that theft is base in 
 its nature, they must mean that it would be so after pro- 
 perty is once established.* The same opinion is enter- 
 tained by the celebrated Francisco Suarez, who says 'Nam 
 multa sunt dejure naturali quae non obligant, nee locum 
 habent, nisi aliqua suppositione facta; ut praeceptum non 
 furandi, non habet locum, nisi facta divisione bonorum et 
 dominiorum,'t which we may thus render — For there are 
 many things which do not oblige by the natural law, and 
 have no place in it, unless in a given state of things; as for 
 example, the precept 'thou shalt not steal,' is no part of 
 that law until after the institution of property. 
 
 The distinction between the primary and secondary 
 laws of nature, imports something more than the well 
 known difference between actions mala in se, and those 
 which are only mala prohibita. But in what the dis- 
 
 * Taylor's Civil Law, 131. f Suarez De Leg. lib. 2. ca. 18.
 
 Lect. VIII.] OF THE LAWS OF NATURE. 355 
 
 tinction really consists, and whether the jus primarium is 
 confined to, or extends heyond matters bona aut mala 
 in se, and whether the jus secundarium is restricted to, or 
 affects matters beyond what are merely indifferent, are sub- 
 jects by no means clearly explained by the writers on na- 
 tural law. As we do not perceive any obvious utility in 
 the distinction itself as far as it has been explained, I shall 
 for the present at least, pass it by with a single remark; 
 that positive laws, even when they regard only actions na- 
 turally indifferent, create nevertheless a moral obligation 
 to their strict observance; and that, although actions mala in 
 se are expressly forbidden by the law of God and man, and, 
 in metaphysical strictness, the obligation to avoid them is 
 said to remain the same, yet there can be no doubt, as obli- 
 gation is generally understood, that it is increased by multi- 
 plying the sanctions, and by more clearly denning them, 
 than under the jus naturae. 
 
 (10.) The Laws of We are now to consider the last topick 
 Nature relate, 1: to ; d {qj . the present lecture, viz. that 
 
 man's duty to him- » l 
 
 self, and 2: to his du- division of natural jurisprudence which 
 ty to his fellow crea- referg a]] the j awg of nature either to 
 tures; and all these , • i u* 
 
 duties are referred man's duty to himself, or his duty to his 
 either to the Absolute f e u ow crea tures. The former has been 
 or Hypothetical laws „ , „ . A . 
 
 of nature. subdivided into five classes of duties, viz. 
 
 1. The cultivation of his moral and religious nature. 2. 
 The improvement of his intellectual faculties by the ac- 
 quisition of all useful knowledge. 3. The preservation 
 of the health of his body and mind. 4. The honest ac- 
 quisition of property, and 5. The pursuit of salutary plea- 
 sure. In regard to the whole of these duties, it may be 
 remarked, that every act by which these several ends are 
 promoted, has its peculiar gratification independent of the 
 particular object in view, and that, when combined, they 
 constitute a scheme of varied felicity which, while our du- 
 ties leave no pause in our exertions, and permit no waste
 
 356 OF THE LAWS OF NATURE. [Lect. VIII. 
 
 of a particle of time, is amply sufficient to refute the no- 
 tion entertained by some, that our existence is gloomy or 
 even indifferent. Heaven bestows on the energetick toiler 
 through life, abundant recompense, even here, for every 
 privation and every enterprise. 
 
 The latter branch of man's duties, viz. his obligations to 
 his fellow creatures, has also been subdivided into classes, 
 viz. 1. Such as are absolute, that is such as oblige all men 
 in all countries, and independently of all human laws and 
 institutions, and 2. Such as are hypothetical, that is, such 
 as arise after the establishment of society, but which are 
 nevertheless founded on the condition of mankind consi- 
 dered in general, and which are also not the creation of 
 mere positive law. 
 
 We are first to examine into the five classes of duties 
 which man owes to himself; and secondly, into the two 
 classes of duties, viz. absolute and hypothetical, which he 
 owes to his fellow creatures. 
 
 1. Man is said to be under a moral obligation to culti- 
 vate to the utmost extent of his power, that social and re- 
 ligious nature which so eminently distinguishes him from 
 every other animal, and binds him by the most tender re- 
 lations to his species, whilst it enables him to hold commu- 
 nion with his Creator. 
 
 The cultivation of religious and social affections contri- 
 butes largely, not only to our own happiness, but to that of 
 others. Were all men religious and social, they have in- 
 telligence enough to render legislation almost useless. He 
 is sure to be a good citizen, who respects religion, and va- 
 lues the happiness of others; otherwise the highest intel- 
 lectual attainments, so far from conferring happiness on 
 ourselves or on others, are only so many instruments of 
 misery to ourselves, and mischief to others. The first 
 duty in life, therefore, is to cultivate the most exalted re-
 
 Lect. VIII. 'J OF THE LAWS OF NATURE. 357 
 
 verence for the Supreme Being, and the most expansive 
 benevolence towards our own species. 
 
 2. A duty next in importance, is the acquisition of eve- 
 ry species of useful knowledge. In all the relations of 
 life, knowledge renders us happier, and gives to religion 
 and benevolence their proper direction. A highly embel- 
 lished mind is apt to be a generous one; it renders its pos- 
 sessor a kind and discriminating parent, a prosperous and. 
 be.loved master, a tender and judicious husband, and an in- 
 dustrious and efficient citizen. 
 
 Whatever may be our talents, whether for command or 
 obedience, whether various, or limited to a single point, it 
 is our duty to improve them. Mrs Barbauld has judici- 
 ously remarked, that mature is much too frugal to heap to- 
 gether all manner of shining qualities in one glaring mass.' 
 It is our duty, therefore, to cultivate with assiduity the 
 particular talent which nature seems specially to have de- 
 signed as the individual means of our usefulness. Nature 
 has endowed most men with some predominant capacity, 
 and a correspondent inclination, for a particular pursuit. 
 The various apportionment of talent to which I allude, 
 seems to indicate our duty in this respect, and renders it 
 almost criminal to devote our lives either to idleness, or to 
 the pursuit of useless knowledge. The soil of the human 
 mind when permitted to lie waste, or when cultivated in a 
 manner not adapted to its particular nature, must produce a 
 moral vegetation not useful but baaeful. Learning itself 
 should keep in view a defined and useful object, and be 
 made ancillary to those virtues and graces for which it 
 never can be a substitute. Knowledge, which is only the 
 ornament of good sense, and the efficient agent of wisdom, 
 is powerless without them. 'A mere scholar,' says Epic- 
 tetus, 'is an animal that all the world laughs at;' and Quinc- 
 tilian sensibly remarks, that 'prudence can do more with- 
 out learning, than learning without prudence.' Whilst.
 
 358 OP THE LAWS OF NATURE. [Lect. VIII. 
 
 therefore, a richly cultivated understanding greatly en- 
 larges our means of usefulness, the foundation of all educa- 
 tion should be laid in good morals, and in sound sense. 
 
 Knowledge may be divided into three classes, viz. the 
 Useful, the Curious, and the Insignificant. In the acquisi- 
 tion of the first two, we may be profitably and honourably 
 engaged: the last may be consigned to the incurably idle, 
 and is at best but a less mischievous mode of wasting ta- 
 lent. The mischief done to true science, and sound morals, 
 by insignificant or vain learning, has been great; and the 
 history of learning, and of learned men, furnishes innu- 
 merable curious examples of genius and toil strangely and 
 unhappily misapplied. How often do such men bring a 
 reproach on true philosophy by their idle speculations, and 
 their surprising ignorance of the business and utilities of 
 life! 'I hate men/ said an ancient sage, 'who are philoso- 
 phers in opinion, and drones in business. ' 
 
 The learning of the present age, however, is liable to 
 but little of this reproach, and is daily becoming less so. 
 It is far from my intention to inculcate in the students' 
 mind a distrust of all knowledge, the utility of which is 
 not obvious to him at the first glance. I mean rather to 
 express my respect for those philosophers whose investi- 
 gations, though minute and various, have never been tri- 
 fling; and to reprobate those whose lives have been spent 
 in spinning webs for posterity to disentangle; those to 
 whom Martial alludes in one of his epigrams: 
 
 ' 'Tis shameful men should needless knots invent, 
 To prove laboriously impertinent;' 
 
 and those aimed at by another poet, when he speaks of 
 men who 
 
 1 tread on flowers of taste, 
 
 Yet stoop to pick the pebbles from the waste, 
 Profound in trifles, they can tell how short 
 Were Esop's legs, how large was Tully's wart.'
 
 Lect. VIII.] OF THE LAWS OF NATURE. 359 
 
 And to this class of men Lord Bolingbroke alludes when 
 he says, 'I would rather take Darius, whom Alexander con- 
 quered, for Darius Hystaspes, and make as many anachro- 
 nisms as a Jewish chronologer, than sacrifice half my life 
 in collecting all the learned lumber that fills the head of 
 an antiquary.' 
 
 3. The next class of duties which we owe to ourselves, 
 regards the preservation of our health of body and of mind. 
 This is a duty closely connected with those we have al- 
 ready mentioned, since without health, nothing great or 
 excellent can be expected from the capacities of either 
 mind or body. 
 
 Nothing, at first view, would appear more unnecessary 
 than to urge upon men the moral obligation of taking care 
 of their health, seeing that self-preservation is so natural 
 to all animals. It is however a melancholy truth, that this 
 dictate of nature is constantly disregarded. Men are often 
 utterly reckless of the condition of body and mind; and 
 even when they desire health and happiness, have neither 
 firmness nor principle sufficient to resist the force of their 
 passions. They forget that the body is no more their own, 
 than is the mind, and that the former is given in trust to 
 the latter; they forget the sacred nature of that trust, and 
 sometimes justify even suicide, under the idle notion that 
 man has an absolute right over his own body. This flim- 
 sy argument has been used by learned, and even moral 
 men, in ancient times; and others of our own day have not 
 scrupled to disapprove of the odium attached to the act, 
 and of the legal penalties by which it has been so justly 
 reprobated. 
 
 The perversity of man is such, that the strongest en- 
 couragements and denunciations of the law are often need- 
 ed to deter them, if not from self-immolation, at least from 
 a criminal disregard to the means of preserving their men- 
 tal and physical powers. And though it is the general
 
 360 OF THE LAWS OF NATUR*. [Lect. VIII 
 
 policy of governments to take no cognizance of private 
 vices, but to punish only such open crimes as by their ex- 
 ample may become prejudicial to others, it is sometimes 
 necessary to go beyond this principle, and to extend the 
 incitements and comminations of the law to such habits 
 and conduct as affect rather the private individual than the 
 citizen, and the domestic rather than the political relation. 
 4 and 5. The honest acquisition of property, and the 
 innocent pursuit of pleasure, are also duties which every 
 man owes to himself. On the highest authority, he is de- 
 clared to be 'worse than an infidel, who provides not for 
 his own;' and all must agree that neglect to provide for 
 himself, is at least equally reprehensible. By the honest 
 and industrious pursuit of gain, we avoid the numerous 
 evils incident to idleness, that daughter of foil}', sister of 
 vice, and mother of misfortune, as an eastern writer beau- 
 tifully expresses himself. Our present are not our only 
 wants: when disease and old age assail us, we are no longer 
 able to toil, and must lie down in misery and want, or be- 
 come burdensome to others, if in the season of health and 
 youth we have neglected to lay up for the future. It is 
 consequently manifest that we sin against others, as well 
 as ourselves, if we fail to acquire property, or the means 
 of a comfortable subsistence now, and for the day when we 
 can no longer labour. As to the pursuit of innocent plea- 
 sures, it may be remarked, that as they refresh the mind, 
 and enable it to renew with undiminished interest its va- 
 rious occupations, it is but a means of more effectually dis- 
 charging our duties, and consequently becomes itself a 
 duty. What merit has the solitary, who knows life only 
 as a scene of gloom, or who shuns it as being full of crimi- 
 nal pleasures, abandoning society lest he may possibly be 
 betrayed into a guilty participation of them? Such a dis- 
 position is a disease, fatal to the happiness of its possessor, 
 and may prove extremely injurious to society at large.
 
 Lect. VIII j OF THE LAWS OF NATURE. 361 
 
 Most of the pleasures of life are essentially innocent; it is 
 their abuse that renders them vices; and he is the sound- 
 est philosopher, as well as the best moralist, and truest chris- 
 tian, who, amidst the toils and temptations of life, cheers 
 his heart, and renovates his mind, by the moderate use of 
 all the blessings and innocent gayeties which appertain 
 to it. 
 
 We are now to advert, in the second place, to that class 
 of duties which we owe to our fellow creatures; which, as 
 we have stated, are either absolute, that is obligatory on all 
 men, at all times, and independently of all human institu- 
 tions; or hypothetical, that is, consequent on the establish- 
 ment of society and its various regulations, though they 
 are not the mere offspring of positive enactments, but are 
 founded on the condition of man in general. 
 
 The absolute duties and rights of man have been hereto- 
 fore sufficiently explained; and those hypothetically en- 
 joined, have also been remarked on. We have here only 
 to state, as illustrative of this latter class of duties, that as 
 nature does not actually institute property, and as it does 
 not necessarily arise from society and laws, since property 
 may exist independently of them, and they may also exist 
 without property, the right of property, and the duties ap- 
 pertaining thereto, are said to be hypothetical. After pro- 
 perty has been established, the rights and duties which 
 respect it, are protected by the law of nature; but these 
 rights and duties are not absolute, for the reason just given. 
 They are moreover to be distinguished from rights merely 
 positive or legal; for duties hypothetically enjoined by the 
 law of nature, are such as cannot have an actual existence 
 in a state of nature, though they are entirely consonant to 
 the design of nature. In fine, hypothetical duties, though 
 different from those which arise merely out of, and which 
 are sustained only by positive civil laws, may, however, 
 be referred to both sources, in the same way as absolute 
 46
 
 362 OF THE LAWS OF NATURE. LLect. VIII. 
 
 duties, which are often the subjects of direct legislation in 
 all policed communities. 
 
 We have now concluded the view we designed of the 
 Natural State of Man, and the rights and obligations ap- 
 pertaining to it; of the origin of the Civil State, and its 
 fitness to promote the great design of nature, the happiness 
 and dignity of man; and lastly, of the just influence of the 
 laws of nature on man, after the establishment of political 
 society and laws. 
 
 This terminates our inquiry into ethical and metaphy- 
 sical jurisprudence. 
 
 In the ensuing lecture I shall treat of the nature of the 
 Political and Civil sjtates; of a Constitution; and of the va- 
 rious Forms of Government in ancient and modern times: 
 after which I shall draw your attention, in a few lectures, 
 to a system of polity, not only very peculiar in itself, but 
 immediately connected with, and indeed originative of, 
 that large portion of English jurisprudence called the 
 Common Law. I allude to the Feudal system, a form of 
 government which pervaded Europe during many centu- 
 ries, and the remains of which will probably endure as long 
 as time. We are pleased at the prospect of soon arriving on 
 solid ground, hoping, however, that the foregoing casuistical 
 and metaphysical prelections have not been useless, either 
 in recalling your attention to what you may have previous- 
 ly read on those topicks, or in awakening it to the necessity 
 of deeper research into many points which have been so 
 learnedly and cunningly discussed by some of the writers 
 on natural law.
 
 LECTURE IX. 
 
 OF POLITICAL, AS DISTINGUISHED FROM CIVIL LAW; AND OF 
 THE VARIOUS FORMS OF CIVIL GOVERNMENT. 
 
 (l.) Of Political The regulations by which nations aim 
 
 Law, what it is, and , ,, . , , j 
 
 how distinguished to secure the,r order and S 0od g°vern- 
 
 from Civil Law. Po- ment, are divisible into two great classes: 
 
 litical state, how dif- th Qne compre h e nding those rules which 
 
 ferent from Civil r ° 
 
 State. concern the body of the nation itself, its 
 
 form of government, and the manner in which the publick 
 authority is partitioned; all of which fundamental rules 
 constitute what are denominated the Political Laws: the 
 other embracing those which concern the conduct of citi- 
 zens among themselves, or towards the state; and these are 
 called the Civil Laws. Corresponding to these two classes 
 or systems of law, there are certain fictitious entities re- 
 sulting from these distinct kinds of laws, and which have 
 taken the names of Political and Civil States. 
 
 In defining and distinguishing these states, the one from 
 the other, Montesquieu (not with strict propriety, we 
 think,) has chosen to adopt Gravina's definitions. 
 
 According to Gravina, 'the conjunction of the particular 
 forces of individuals constitutes the political state; whilst 
 the conjunction of the wills of those individuals forms the 
 civil state.' These definitions we think are somewhat ob- 
 jectionable. 
 
 It may be admitted that the prominent features which 
 mark these two states, are, as Gravina and Montesquieu
 
 364 OF THE FORMS OF GOVERNMENT. [Leet. IX. 
 
 have stated, viz. that the one refers to the executive, or 
 united forces of the members of a community; the other to 
 the legislative, or united wills of those individuals. But 
 we apprehend that this is not going sufficiently far. The 
 political state must be considered as co-extensive with the 
 political laws, and the civil state with the civil laws. Now 
 the political and civil laws often relate to matters which do 
 not exclusively regard the joint force, or the joint will. 
 By political laws we are to understand, not merely such as 
 relate to the joint force, but all those which relate to the 
 organization and conduct of the body politick; those fun- 
 damental and constitutional laws which direct the nation, 
 as far as they are not embraced by a distinct branch of 
 laws, called the laws of nations, and which regulate inter- 
 national communion. Political laws, therefore, may relate 
 indiscriminately to matters of executive, legislative and 
 judicial conduct. Those laws which give rise to the form 
 and constitution of government, and those which establish 
 the obligations of a community, and of its publick func- 
 tionaries, constitute a part of the political state; yet many 
 of them may have no relation whatever to the wielding of 
 the united forces. So, again, the constitution itself may 
 establish many things expressive of the united will only, 
 and yet these would be classed with the political laws, and 
 properly, because they establish the relation between the 
 body politick and the members of which it is composed; 
 whereas civil laws relate to the conduct of citizens towards 
 each other, and of the citizen towards the state. 
 
 The political state, therefore, must result from the whole 
 of the political laws, and not merely, as Gravina says, 
 from such as establish the duties and rights of the body po- 
 litick in relation to the joint force. So, likewise, the civil 
 state must, we apprehend, be commensurate with the civil 
 laws; and though some of these laws may define obligations 
 due by the citizen to the state, as in the payment of taxes,
 
 Lect. IX.] OP THE FORMS OF GOVERNMENT. 365 
 
 duties, &c. yet these are as much civil laws, and as much 
 regard the civil state, as those which relate to the rights and 
 duties between citizen and citizen. From the whole, then, 
 it would appear that the meaning applied by these two 
 eminent political philosophers to the expressions 'political 
 state,' and 'civil state,' is too restricted, and that they are 
 coextensive with those two species' of laws. 
 (2.) Of the exer- ^he fundamental regulations which de- 
 
 cise of governmental termine the manner of executing the 
 
 Dower rclcitivG or not 
 
 to the' constitutional P ublick authority, and which define the 
 
 and fundamental laws relation between the political body and 
 
 of t a state: of the its members, are what form the Consti- 
 nature and objects of 7 
 
 a Constitution, and tution of a state. These point out and 
 
 how affected by the fix thfJ jj^ f authority whether legis _ 
 
 physical condition ot ■" ° 
 
 the governed: And of lative, executive or judicial: they deter- 
 
 the necessity of laws m i ne j n w ^ a t functionaries it is to be re- 
 varying with the great 
 and radical changes posed; in what manner it is to be exer- 
 
 iu the genius of a c ised; and to what subjects it is to ex- 
 tend. In the language of Vattel, 'a con- 
 stitution is in fact nothing more than the establishment of 
 the order in which a nation proposes to labour in common, 
 for obtaining those advantages with a view to which the 
 political society was founded.'* 
 
 It is somewhat surprising that although government be 
 the most important and admirable of all sciences, it has 
 been the least perfectly understood, and, in regard to its 
 ac-tual exercise, is yet far from perfection. A subject 
 which has called forth the best exertions of some of the 
 master geniuses of antiquity, as Plato, Aristotle, Socrates, 
 Cicero &c, and the persevering thought and research of 
 many distinguished moderns, as Bacon, More, Locke, Sid- 
 ney, Harrington, Montesquieu, Machiavel and others, ne- 
 vertheless remained, almost to our own days, confes- 
 
 * Vattel's Law of Nations, Book 1, ch. 3.
 
 360 OF THE FORMS OF GOVERNMENT. [Lect. IX. 
 
 sedly in its infancy, especially as a practical science. The 
 great desideratum, however, which is to be now attained, 
 is not so much the science as the art of true government. 
 The philosophy of political rule is in this age much better 
 understood than in any preceding; but, like many theore- 
 tical improvements in regard to man's intellectual and phy- 
 sical condition, it is slow in being reduced to practice, and 
 must be ripened and matured by the gradual influence of 
 times and circumstances, and the growing virtues and intel- 
 ligence, no less of the people, than of those in power, be- 
 fore its excellences are fully perceived and practised. It 
 is, indeed, wonderful at first view, that of a subject in 
 which men's happiness is so largely involved, even the first 
 principles should have so long remained either wholly un- 
 known, or greatly obscured; and that, after so many thou- 
 sand experiments, some forms should not have been de- 
 cided on as the best, and been very generally adopted. 
 
 Were we to allow the variety of existing and past forms 
 and constitutions of government, to argue the sentiments 
 of mankind in regard to this subject, we might suppose 
 those sentiments to be, indeed, infinitely various. But 
 widely different as their practice has been, it is to be re- 
 membered that the lust of power has left to few people the 
 free expression of their choice; that necessity has created 
 a thousand systems of rule, which philosophy and common 
 sense see the propriety of reforming, while circumstances, 
 and 'custom grown blind with age,' render change dange- 
 rous, or perhaps impossible. We should also remember 
 that of existing systems of polity, most have been brought 
 to subserve the interests of the people only by dint of in- 
 numerable efforts and contrivances, which have assaulted 
 or mined the citadel of power; and that when nations start 
 from so many different points, even if they always held in 
 view the same end, they would naturally stop short at dif- 
 ferent stages of their progress, either from ignorance of
 
 Lect. IN. j OF THE FORMS OF GOVERNMENT. 367 
 
 their road, or from the obstacles which impede it. Thus, 
 then, if even the same species of government would suit 
 all people alike, there are obvious causes in the actual cir- 
 cumstances of mankind, why they should differ so greatly 
 in their modes of political rule. 
 
 Among the circumstances which have been supposed to 
 exercise a powerful control over the forms of government, 
 the varieties in the moral and physical condition of man 
 have been often mentioned. Nations, like individuals, 
 have their temperaments, which give rise to correspondent 
 systems of government and laws. So, also, with nations 
 as with individuals, the mere accidents of life give a direc- 
 tion to their future destiny. War, trade, agriculture, sci- 
 ence or ignorance, according as they form the particular ob- 
 ject or condition of a community, will render one form of 
 government more likely to occur, and more suitable to their 
 condition and inclinations, than another, since the prompti- 
 tude and vigour which characterize a monarchy, for exam- 
 ple, are very proper for an ambitious or warlike people, 
 while they are actually detrimental to the views, and in- 
 consistent with the spirit of a nation devoted to traffick. 
 Great Britain furnishes no exception to this doctrine. She 
 is commercial, and, in a degree, warlike; but neither is her 
 government a monarchy, nor can it be regarded as ambi- 
 tious: her predominant spirit is rather mercantile than war- 
 like; and her government, both in theory and practice, 
 much more republican than monarchical, or even aristocra- 
 tick. So far, indeed, from that country forming an excep- 
 tion to the doctrine we have stated, it appears to us that no 
 stronger example- can well be given of a nation whose gov- 
 ernment and* laws have more strictly conformed to the spi- 
 rit of her people, and varied with the different tempera- 
 ments which circumstances have occasioned through the 
 lapse of ages. Every feature in her constitution and laws 
 seems promotive of her natural tendency towards a limited
 
 368 OP THE FORMS OF GOVERNMENT. [Lect. IX 
 
 warlike spirit, a limited ambition, and a thirst for trade and 
 commerce which knows no bounds. 
 
 Hence, however sages may agree as to the most proper 
 and virtuous pursuits of a nation, we may discover in what 
 we have stated, a powerful cause of the great variety of 
 choice and opinion exhibited by communities in their forms 
 of government; since they naturally fall into that form 
 which corresponds to their particular dispositions and man- 
 ners; to say nothing of those to which their ill fortune re- 
 duces them, when luxury or vice or ignorance has rendered 
 them incapable of publick spirit, and made them prone to 
 an indolent subservience to accidental rule. 
 
 In every policed community there are three powers or 
 authorities necessary to its constitution and preservation, 
 viz. the power of making laws, that of interpreting them, 
 and that of executing, or appointing those who execute 
 them. These are commonly termed the Legislative, Judi- 
 cial and Executive authorities. Aristotle denominates that 
 branch the appointing power, which we term the executive; 
 and, as his commentator remarks, 'with propriety, inas- 
 much as it is generally a very small part of the duty of that 
 member of the government to see to the immediate execu- 
 tion of laws, its prerogative being chiefly in appointing 
 those who do.'* 
 
 Now, whenever a state departs from that simple modifica- 
 tion of government which unites all these powers in one 
 person or body; when it distributes them among different 
 individuals or bodies, with a view to save them from abuse; 
 we at once perceive how the forms of government may be 
 infinitely varied, although the aim and spirit of all may in- 
 deed be essentially the same. Athens, Carthage, Rome, 
 Venice, and the confederated states of America; all repub- 
 lic];?, all jealous of liberty; how different the distribution 
 
 * C Gill. Aris. I
 
 Lect. IX.] OP THE FORMS OP GOVERNMENT. 369 
 
 which they made of their powers, in order to preserve 
 something like a balance, and to prevent abuse or encroach- 
 ments in any! These ancient states have shown us a truth 
 equally clear and melancholy; that while a sound spirit and 
 good morals may preserve the worst forms of rule from the 
 evils of which they are naturally productive, the best have 
 been unable to save the community, when the springs of 
 the machine were weakened by vice, and impeded by cor- 
 ruption. Such, then, are the chief causes which have 
 produced the infinite variety of governments among man- 
 kind. 
 
 It would be difficult, perhaps impracticable, to decide to 
 what degree all nations are capable of a more extended liber- 
 ty than they have for the most part enjoyed: whether, in short, 
 the perfectibility of man, (to use a modern phrase and idea,) 
 will ever be so sufficiently and practically demonstrated, 
 that the people would every where be benefited by being al- 
 lowed a voice in the government. Strange that they should 
 not! since the institution of all government and laws was 
 for their sake. Strange, indeed, is it that what is so mani- 
 fest in theory, should be so often false in practice! Whe- 
 ther it is that their governments debase them, or that, as 
 has been often seriously contended, they require base and 
 absurd governments, certain it is that the scheme of politi- 
 cal rule to which they have in almost all ages and countries 
 submitted, and still more the unhappy use which they have 
 so often made of their natural and political rights, have cast 
 a doubt on a question which, on abstract principles, will 
 admit of none. But leaving this question to the solution 
 of the present or approaching times, our business is to con- 
 template for a moment, the adaptation of governments to 
 the actual circumstances of a people, their predominant 
 spirit or character, and the radical mutations which they 
 undergo. That the philosophical, but too generalizing au- 
 thor of the 'Spirit of Laws' has carried his principle on 
 47
 
 370 OP THE FORMS OF GOVERNMENT. [Lect. IX. 
 
 this topick a good deal too far, cannot be doubted, even by 
 his most zealous admirers. 
 
 That nations, as we actually find them, are very differ- 
 ently fitted for the enjoyment of a free polity, is too abun- 
 dantly manifest from all past and present experience. That 
 climate, habits, pursuits, customs, and all the varieties of 
 education, whether moral, physical or intellectual, are cir- 
 cumstances which impart to nations, as well as individuals, 
 a certain temper more or less adapted to a liberal govern- 
 ment, cannot be questioned. Yet these may so counter- 
 vail and equipoise each other in all places, that although 
 we allow them much consideration, yet when we find the 
 enlightened author of the 'Spirit of Laws' excluding from 
 the possibility of free institutions, all nations inhabiting 
 warm and luxurious climates, and basing his opinion on the 
 relaxed state of their fibres, and the circumstance of 
 bread procured without labour, we can scarce repress a 
 smile, especially when we find him acknowledging, in his 
 aphoristical manner, that while, on the one hand, the delica- 
 cy of their organs makes them dread labour and death, it im- 
 parts an imagination so lively, that they shun a thousand 
 things more than either labour or death. It is strange that 
 the spirit of theory should mislead so close a reasoner, and so 
 profound a thinker; and that one who sought with earnest- 
 ness for every operative cause, should yet erect so vast a 
 structure on so slender a foundation. Does not the charac- 
 ter of the Arab tribes, dwelling under a burning sun, and 
 yet free; and that of the Tartar tribes, inhabiting the frigid 
 and barren table lands of Asia, and yet slaves; show us con- 
 clusively how uncertain are his broad deductions from cli- 
 mate? Undoubtedly legislators have their peculiar difficul- 
 ties in all climates and countries, arising, too, from causes 
 peculiar to those countries and climates. Still, however, 
 these physical circumstances are very secondary, and far 
 from invincible. It seems, therefore, but philosophical, and
 
 Lect. IX.] OP THE FORMS OF GOVERNMENT. 371 
 
 conformable to all experience, to allow that moral causes are 
 the controlling ones, and that these may be made to operate 
 in all countries; and consequently that nature (however op- 
 posed the dispositions of her sons in all places may be to 
 the dominion of reason, and of just government) has left 
 none of them hopeless of a free and rational policy. 
 
 The just conclusion from what we have said on this sub- 
 ject seems to amount to this; that the moral circumstances 
 in which a legislator finds his people, should mainly di- 
 rect him in the adaptation of his government and laws to 
 their necessities; and that while physical circumstances 
 ought not to be disregarded, they can never be a perpetual 
 barrier to institutions either free or despotick. On this point 
 philosophy and history concur; for we know that in the 
 hottest climates men are neither without industry, nor des- 
 titute of spirit, and that the remark of Montesquieu in re- 
 gard to such a climate, that 'slavery is more supportable 
 than the force and vigour of mind necessary for human ac- 
 tion/ is far from being justified by history. So, also, in 
 the most fertile regions, property may be so divided and 
 regulated that labour shall always be requisite for a 
 comfortable subsistence; whilst in the most barbarous, re- 
 ligion, as it is good or bad, may soften and humanize, or 
 subject to servility and sloth. In the free and but half civ- 
 ilized nations, which arose on the ruins of Rome, supersti- 
 tion produced slaves to a spiritual father, and peopled con- 
 vents with indolent fanaticks; but that this superstition and 
 its effects did not spring from physical causes, is too mani- 
 fest to be doubted for a moment. Innumerable circum- 
 stances, in fact, combine to form the character of a nation; 
 and of these it is the policy of wise legislators to poise 
 some against others, in the confidence that nature has every 
 were provided her antidotes. One thing is obvious enough, 
 that to apply to all nations indiscriminately even the form 
 of government abstractly the best, would be a wild and
 
 372 OF THE FORMS OF GOVERNMENT. [Lect. IX. 
 
 fatal policy. A republick in Hindostan, for example, ex- 
 cites by its very mention an emotion of ridicule, since, if 
 at once established, it could be nothing but anarchy among 
 a people to whom nearly all just principles of government 
 are unknown, and who, from an immemorial sera, have 
 been slaves. To establish a complete despotism in Chris- 
 tendom would also be next to impossible; because, remote 
 as too many of the European polities certainly are from 
 just principles of rule, they are yet sensible enough of the 
 rights of the people, however unable the people may be to 
 assert them fully. So, again, a nation ambitious of con- 
 quest would be very injudicious to select a republican sys- 
 tem, which is not fitted for offensive efforts, and is but too 
 happy to be capable always of those which are only defen- 
 sive. If, on the other hand, the people be frugal and con- 
 tent with little; if there be among them no excessive ine- 
 quality of estates; they will be likely to love and preserve 
 republican institutions; while, again, too great a scantiness 
 of food, or a wandering and hunting life, will be apt to di- 
 vide them into tribes, and subject them to the conduct of 
 petty rulers. If wealth and its consequent power be in 
 few hands, as in feudal times, a republican constitution 
 would be practically impossible; for who are to preserve 
 rights to a people who are themselves incapable to assert 
 them? It is only the dream of political enthusiasts that 
 has found in Magna Charta a bill of rights for a people 
 who had only a notional existence. It was, on the contra- 
 ry, a grant of privileges to a powerful, and therefore tur- 
 bulent aristocracy. In the history of Venice we find these 
 truths practically illustrated. For more than two and a 
 half centuries, that country was governed by a pure demo- 
 cracy: this was in its infancy. During many more centu- 
 ries, a powerful aristocracy held dominion, and sometimes 
 respected the people; and often a wicked oligarchy was 
 entirely triumphant, and wholly disregarded their claims.
 
 Lect. IX.] OP THE FORMS OP GOVERNMENT. 37& 
 
 At other times we find the Doge all powerful, and the 
 Senate and Council his subservient instruments; again, the 
 Doge sunk into insignificance, and the oligarchy were do- 
 minant. In all these various mutations w6 find, (after a 
 close inspection into their history) that wealth generated 
 an abundant harvest of its peculiar political evils; whilst 
 trade and commerce, being in the hands of all, not only 
 banished the spirit of war and conquest, but so diffused 
 the means of education, and of at least comfortable subsis- 
 tence, that the people were of sufficient importance to have 
 their civil liberties generally respected, and their political 
 liberty often acknowledged, sometimes in substance, but 
 more frequently in form only. The influence of wealth 
 and noble ancestry was at all times very great in Venice; 
 but the inferior orders, being neither very poor nor ignor- 
 ant, were not fit subjects for slaves. During the whole his- 
 tory of this remarkable nation, at least during a period of 
 more than fourteen centuries, the national independence 
 was preserved in its integrity, and the people were free 
 from foreign oppression. Neither the Guelphs nor Ghi- 
 bellines were sufficiently powerful to destroy her political 
 independence: the Vatican thundered, yet the Doge and 
 the people were calm: surrounding nations envied yet 
 feared. Venice, which professed to be ruled mainly for 
 the publick good, though often disturbed by intestine 
 broils, chiefly about the succession to the Doge, (which, 
 however, were rather individual contests than civil wars,) 
 enjoyed for ages an almost unexampled prosperity, which 
 excited the admiration of the world, and is still regarded 
 by some politicians as a problem of no easy solution in 
 the science of political rule. The truth is, however, that 
 these changes were the natural and inevitable result of 
 man's moral nature, when subjected to powerful impulses. 
 Venice commenced her infant career under the influence 
 of two principles which were long preserved, and never
 
 374 OF THE FORMS OF GOVERNMENT. [Lect. IX. 
 
 wholly abandoned; to respect the rights of the governed, 
 and neither to meddle with the concerns of other nations, 
 nor suffer them to interfere with hers. Her commerce 
 grew out of circumstances; and wealth and time created a 
 powerful and venerated aristocracy. Luxury and the am- 
 bition of power will corrupt, and an odious oligarchy ne- 
 cessarily ensued; the people, too powerful to be enslaved, 
 would struggle for their rights; and thus various changes in 
 the form of government arose. The early respect for the 
 people, and the hatred of monarchy, would for ever pre- 
 vent its open establishment; whilst an increase in the po- 
 pulation manifested the impracticability of continuing that 
 pure democracy with which the state commenced its career. 
 Thus was it that in the history of this interesting people 
 we find, in substance at least, nearly every form of govern- 
 ment exemplified, viz. pure and simple, pure and mixed, 
 corrupt and simple, corrupt and mixed; in fact, democracy 
 and ochlocracy, monarchy and tyranny, aristocracy and 
 oligarchy; and also various combinations of each. From 
 this it appears that forms of government and constitutions 
 may, under the same climate, easily vary according to the 
 changing conditions of a people; and that they all take 
 their rise chiefly from adequate moral causes, and may 
 often be proper, and best suited to the particular state or 
 condition of a people. It is also a principle not to be lost 
 sight of by legislators, that a very operative cause in the 
 production of national character itself, is to be found in the 
 very form and constitution of the government; for who 
 can doubt that long subjection produces and strengthens 
 the spirit of slavery; or that the privilege of freedom will 
 originate and perpetuate a zeal for its preservation, and 
 develope the best means of guarding it? 
 
 Although the illustrious author of the 'Spirit of Laws' 
 was not insensible to this principle, he has not sufficiently 
 regarded it in his considerations on the causes of slavery in
 
 Leet. IX.] OF THE FORMS OF GOVERNMENT. 375 
 
 Asia. The force of government in changing the spirit of 
 a people, is made sufficiently obvious by contrasting the 
 ancient inhabitants of Asia Minor and Greece, with its 
 modern possessors. The same physical circumstances are 
 now operative as then; with Byron we may say, 
 
 'Yet are their skies as blue, their crags as wild, 
 Sweet are their groves, and verdant are their fields; 
 Their olive ripe, as when Minerva smil'd.' 
 
 Change is the fate of nations; and the great variety of 
 its sources is among the infinite reasons why all the policy 
 of the wise has never been adequate to prevent it. 
 
 Having explained, in a general way, first, the nature 
 and object of a constitution; and secondly, how far the 
 laws should be relative to the particular genius or charac- 
 ter of a people; let us, thirdly, bestow a few words on the 
 necessity of varying the constitution and laws, to suit the 
 radical changes which often take place in the dispositions 
 of a people, from the gradual developement and expansion 
 of their energies, or from various other causes. This 
 change, auspicious to nations in their progress to refine- 
 ment, as it is fatal in the periods of their decline, often 
 renders the forms of polity which were suitable to their 
 infancy, or to any given state, not only insufficient but 
 intolerable in another. The feudal system, the unavoida- 
 ble growth of the circumstances of the times, and the situ- 
 ation both of the conquerors and the conquered, impressed 
 a character on the constitutions which arose out of it, which 
 has been the germ of the fiercest dissentions during seve- 
 ral ages. It is true that changes have been wrought, but 
 they have either been the fruit of formidable strife, or the 
 result of bungling evasions which have made the best con- 
 stitutions of Europe somewhat clumsy in their structure, 
 and the text of very opposite constructions to discordant 
 interests and passions. You will have occasion to remark 
 in the history of the English Common Law, the truth of
 
 376 OF THE FORMS OF GOVERNMENT. [Lect. IX- 
 
 what has been just stated. You will there perceive the 
 changes which, becoming necessary from the increasing 
 importance of the people, converted a feudal aristocracy, 
 whose king was no more than a powerful peer of the rest, 
 into a government worthy of a free people. But you 
 will likewise see that they have left the structure, conve- 
 nient as it must be confessed to be in most essential re- 
 spects, neither very symmetrical, nor always very judi- 
 cious to a philosophical eye. How many calamities had 
 been spared to the British nation, had the Stuarts been sen- 
 sible enough of the necessity of accommodating govern- 
 ment to the advancing refinement, liberal thought, avidity 
 of freedom, and strength to assert it, which sometimes 
 grow up with the growth of nations, and which, though 
 they be not a resistless torrent, will most certainly in time 
 end in the correction, if not the total abolishment, of all 
 arbitrary systems. In no period which history displays to 
 us, is the force of this doctrine more strongly unfolding 
 itself, than in the present age, and at this very time. The 
 georgicks of the mind have become, comparatively, so 
 universal and enlightening, as to have conferred a power 
 on the people which must be heard and respected. Neither 
 the stratagems nor the force of rulers, nor the remains of 
 former habits in the people, can check this march of free- 
 dom: the mind, redeemed and regenerated, must triumph 
 over the artifices of tyranny, in whatever form they may 
 appear; and publick opinion will in all countries establish 
 the truth, that governments and laws were instituted to 
 make the people happy, and not to make the rulers distin- 
 guished and powerful. 
 
 It is a most important question, (not indeed to us, for 
 we have settled it) in whom do the right and the power of 
 making necessary and radical changes in government re- 
 side? That it is in the people, we, as republicans, assert of 
 course; nor can we be made well to understand on what
 
 Lect. IX.] OP THE RIGHTS OE GOVERNMENT. 377 
 
 sensible grounds it has ever been denied. Those which 
 have been taken are very various, but need not be stated, 
 as we have already, in a previous lecture, said all perhaps 
 that is requisite. We would remark, however, that it is 
 asserted by many republican writers, that government is 
 founded on a contract between the rulers and the ruled; 
 the first undertaking the care of rule, in consideration of 
 the honour and advantages of the station; the other un- 
 dertaking to obey, in consideration of the preservation by 
 these rulers, of safety and good order. This, however, 
 is not exactly in coincidence with the doctrine of the 
 American people; they look on the body politick, that is, 
 the people, as the master, and the rulers as the servants of 
 the people; servants amenable to censure, subject to be dis- 
 placed, and possessing no rights which can set them above 
 the correction of the state. The legislative, executive and 
 judicial bodies, therefore, are not with us the repositories 
 of the sovereign power: this resides essentially in the peo- 
 ple. Under the British constitution, on the other hand, 
 the sovereignty of the nation is supposed to reside in the 
 legislature, composed of King, Lords and Commons: su- 
 preme power and legislative power being there converti- 
 ble terms. There can be no doubt, however, that the le- 
 gislative power may reside in one body, whilst the jus 
 sumrni imperii, or sovereignty, remains with the people.* 
 This, in effect, is the case even in England, and indeed in 
 every other nation. It may not be recognized, and the 
 right may remain dormant for ages; but when oppression 
 of the people becomes open, and threatens to invade im- 
 portant rights which had been previously respected, the 
 people are never backward in maintaining, at any sacrifice, 
 the important truth, that they are supreme, and that all 
 others are but their functionaries, whose authority ema- 
 
 * 2 Ruth. Inst. 1 15 &c. 1 Tuck. Black. Appen. note A. 
 
 48
 
 378 OF THE FORMS OF GOVERNMENT. [Lect. IX. 
 
 nated from the people, and may be resumed whenever 
 these become satisfied of the thorough unworthiness of 
 their agents, and the radical injustice or impolicy of vest- 
 ing in them the powers which they claim to exercise. 
 The history of every nation on earth proves that this 
 doctrine has been asserted and vindicated by the people, 
 whenever a strong and fitting occasion arose to demand its 
 enforcement. It is a melancholy truth, however, that whole 
 nations, as well as a host of misguided authors, have at 
 different times, and in various nations, maintained with 
 great zeal that kings are accountable for the exercise of 
 their powers to no one but God; that they are his vice- 
 gerents; and that to oppose them is to raise a sacrilegious 
 hand against the Most High. This doctrine found a distin- 
 guished champion in Sir Robert Filmer, who infers the 
 jure divino sovereignty of kings from the power given to 
 our common progenitor Adam, who, as he contends, was 
 an absolute monarch! He is further of opinion, that no 
 man is born free, or ever can be free, except the king; and 
 that sovereignty has been regularly transmitted from Adam 
 through all ihe various monarchs who have succeeded, in 
 all nations, and at all times! The celebrated Locke has 
 devoted a considerable portion of his Treatise of Govern- 
 ment to the refutation of this unjust and truly absurd doc- 
 trine. So prevalent, at one time, was this notion of the 
 divine right of kings, that even the homilies of the church 
 strenuously maintained it; and Archb. Tiliotson, good and 
 learned as he was, contends for it with much zeal, in his 
 well known letter to Lord Russell. Others of equal piety 
 have urged passive obedience, no less as a christian than as 
 a political virtue. The opinion that governmental power 
 flows from the people was considered, even so late as the 
 year 168.3, as so ab le a doctrine, that it was pub- 
 
 licity condemned as such by the Oxford decree.
 
 Lect. IX.] 0P THE forms OF GOVERNMENT. 379 
 
 It is pleasing to find, however, that not only the British 
 nation, but those of nearly all Christendom, have of iate 
 manifested more respect for the rights of the people. An 
 infinitude of causes is gradually, and, in some countries, 
 silently operating, to enlighten the general mind on the 
 subject of the relation which ought to subsist between the 
 people and their rulers; and though the doctrine gains 
 ground but slowly in many countries, there are strong in- 
 dications that the day may come when all mankind will 
 acknowledge awd practise it. 
 
 This happy condition of things, unfortunately, has not 
 yet been more than feebly manifested, in a very few na- 
 tions. But the friend of man can clearly perceive in the 
 actual state of the world at this time, more combining 
 causes, more auspicious promises, more powerful and un- 
 erring principles in operation, to produce this meliorated 
 condition of man, than the history of the world has fur- 
 nished at any previous period. But, to leave this digres- 
 sion, let us resume for a moment longer our inquiry into 
 the people's right. The power of reforming the constitu- 
 tion, of suggesting and enforcing changes in the govern- 
 ment and laws, suited to the change of limes and circum- 
 stances, must belong essentially to the people, who are to 
 be mainly affected by them. They, and they only, should 
 decide how far it is expedient to retain old principles, or 
 politick to adopt new ones. What an absurdity were it to 
 imagine that a state whose whole aspect was altered, whose 
 pursuits were changed, whose transactions with other states 
 were multiplied, whose occupations had become infinitely 
 various, whose knowledge was vastly augmented, and 
 whose manners partook of the general melioration, should 
 nevertheless be compelled to abide by the ancient institu- 
 tions, which only the early simplicity of manners and af- 
 fairs had rendered proper, and which were no longer ade- 
 quate to the exigencies of the times, or the enlarged views
 
 380 OF THE FORMS OF GOVERNMENT. [Lect. IX. 
 
 of the people. Indubitable in theory as is the necessity 
 for the laws to keep pace with the growing spirit of the age, 
 there is nothing which in practice has been so little re- 
 garded. Change is stigmatized as innovation, which to 
 many is only another name for trespass on hallowed ground. 
 The lust of power, and an unwillingness that the deep lines 
 which separate the people from their rulers, should be ren- 
 dered less visible, added to a dread that the ancient halo 
 which encompasses those in high places should be dispelled, 
 and subjects know how much their rulers are in truth in- 
 debted to them; all these, I say, are continually repressing 
 the spirit of improvement, and keeping the people either 
 ignorant of their rights, or unable to assert them. 
 
 But this right, however manifest, or wherever it may 
 reside, is one which should be exercised in all nations, and 
 under all circumstances, with the prefoundest discretion, 
 and the best of tempers. It is a power which the people, 
 (or whatever other organ may possess it,) should resort to 
 with a becoming veneration for existing laws, and the ful- 
 lest conviction of the necessity of change. A wholesome 
 jealousy of innovation is essential, lest we rush into vain or 
 impracticable experiments, in the light hope of obtaining 
 something better, and also lest, under the guise of salutary 
 reform, ambition or anarchy should lurk, and the worst 
 passions of our nature be eventually set loose upon society. 
 That great caution, in fine, is necessary in this respect, 
 further appears from the fact, that one of the strongest ar- 
 guments opposed by tyranny against all innovations, has 
 been drawn from the rashness and ignorance which have so 
 often accompanied attempts at reform. 
 
 (3.) Of the various We are now to examine into the dif- 
 
 Forms of govern- f eren t Forms of government which vari- 
 
 mcnt, and Jirst, how 
 
 Form of govern- ous nations have selected: also, into the 
 
 ment diiiers from a opinions of some eminent legislators and 
 Constitution Second- 
 ly, of the influence philosophers of antiquity, and of modern
 
 Leet. IX] OF THE FORMS OF GOVERNMENT. 381 
 
 of government on in- times, as to the best form of government; 
 
 dividual and national , ,, • • ^ ■ ■ • *. 
 
 chara-ter. Thirdly, and tlieir VieWS 0n tblS S U0 J ect > as set 
 
 variou< divisions of forth in their political romances, and 
 
 the forms of govern- ,, 
 
 ... , other writings, 
 ment, a> d herein ot ° 
 
 the divisions of Pla- A Form of government differs from a 
 
 to, Socrates, \iisto- Constitution. Ail nations must have the 
 
 tie. Machiavel, Polv- . 
 
 bins Cicero a;-d oth- former, but need not have the latter, 
 
 ers. and of the o t ni- un i es ^ indeed, the very form be itself 
 nions of various an- 
 cient and modern le- regarded as a fundamental or constitu- 
 
 gislatorsaud phiioso- tional doctrine, which can scarcely be the 
 phers as tu actual and .„ . ., ,.,, 
 
 idea! forms of go- case > and > lf lt were ' W0Llld StlU n0t COme 
 
 vernment. up to the idea of a constitution, as it is 
 
 understood by people generally, and especially by political 
 philosophers. A form of government, in the language of 
 Vattel, 'is understood to refer to the distribution of the 
 powers of legislation and administration, and to denote 
 whether those powers are accumulated in one person, or 
 variously distributed among several individuals or bodies. 
 The term constitution goes further, and includes also the 
 particular regulations which prevail respecting the manner 
 in which these powers are to be exercised.' Hence, dif- 
 ferent countries may have the same form of government, 
 but different constitutions; but if they have the same con- 
 stitution, they necessarily have the same form of govern- 
 ment. 
 
 The word 'constitution' is also frequently used to denote 
 either the written instrument which defines the relation be- 
 tween the governed and their rulers, and the rights and du- 
 ties of each, as, for example, the constitution of the United 
 States, those of the several states, &c: or that body of 
 usages existing from time immemorial in the memories of 
 men, or in scattered documents, as is the case with the Bri- 
 tish constitution, and indeed with what are called the fun- 
 damental laws of every nation whose government is not 
 absolutely despotick. 

 
 382 OP THE FORMS OF GOVERNMENT. [Lect. IX 
 
 Forms of government, thus understood, though ex- 
 tremely various in consequence of the modifications which 
 they receive from the admixture of the different simple 
 forms, are yet susceptible of classification, and have been 
 classified by writers and philosophers from the earliest an- 
 tiquity, whilst the constitutions establishing them must 
 necessarily be incapable of such a classification. 
 
 We are also to distinguish the form and constitution 
 from what Montesquieu calls the Principle of a govern- 
 ment. The former are those by which the government is 
 constituted; the latter is that by which it is made to act. 
 'One is its particular structure; the other the passions 
 which set it in motion.'* 
 
 Some affectation has been manifested by writers on thi3 
 subject of the 'principles of government,' both before and 
 subsequent to Montesquieu, who, though the first to speak 
 with philosophical clearness on this matter, is by no means 
 the first or only one who understood it. These principles 
 of government, whether they be those of authority or of 
 power, have been anxiously sought after by the political 
 philosophers of all ages of the world. What are called the 
 Principles of Authority, are said to be the cardinal virtues, 
 prudence, justice, temperance and fortitude; and the go- 
 vernmental Principles of Power are said to be certain goods 
 of fortune, as knowledge, riches, ancestry, policy, reputa- 
 tion &c. &c. These principles have been variously ap- 
 plied, both in practice and theory; and legislators and phi- 
 losophers have built on them their real or fictitious systems 
 of government. 
 
 Ancient and modern times furnish several examples of 
 distinguished lawgivers and philosophers who have dis- 
 played, in practice or theory, what they esteemed the most 
 perfect models of human government. It will be our ob- 
 
 * Montes. Sp. Laws, Book 3, chap. I.
 
 Lcct. IX.] OF THE FORMS OF GOVERNMENT. 383 
 
 ject, in a summary way, to inform the student who most of 
 these legislators and philosophers were, and what were 
 their principal doctrines on the subject of political philoso- 
 phy; and to give a brief analysis of some of their works, 
 more particularly those on the ideal polities, or the sup- 
 posed best forms of human government. 
 
 The Legislators of antiquity, of most note, were Moses, 
 Minos, Zaleucus, Charondas, Lycurgus, Solon, Romulus, 
 Numa, Draco, Pittacus, Zoroaster and Confucius, some of 
 whose laws and institutions have been preserved, and ex- 
 cite both esteem and pity, since they generally display a 
 singular combination of philosophical acumen, and surpris- 
 ing ignorance and superstition. 
 
 The Philosophers of most note among the ancients, for 
 the cultivation of political science, were Plato, Aristotle, 
 Cicero, Socrates and Polybius, the writings of the three 
 first of whom have come to our day in a nearly perfect 
 state. 
 
 The legislators of modern times who have been distin- 
 guished, are the Emperor Justinian, Timour the Tartar, 
 Alfred the Great, Edward the Confessor, Edward I. of 
 England, Peter the Great, of Russia, Frederick the Great, 
 of Prussia, and the Emperor Napoleon. All these had 
 laws and a scheme of policy which have illustrated their 
 names in a greater or less degree; and most of them have 
 shed useful light on the science and art of government. 
 
 The philosophers of modern days whose views of phi- 
 losophical legislation are most worthy of remark, are Ma- 
 ehiavel, Sidney, More, Bacon, Locke, Milton, Harrington, 
 Montesquieu and Hume; to whom we may with great pro- 
 priety add our own distinguished countrymen, the authors 
 of the Federalist, and John Adams. 
 
 Some of these philosophers, ancient and modern, have 
 chosen to convey their opinions on the science of politics 
 by presenting a beau ideal, or imaginary perfect govern-
 
 1 
 
 384 OP THE FORMS OP GOVERNMENT. [Lect. IX. 
 
 merit. Such is the 'Republic' of Plato, the 'Prince' of 
 Machiavel, the 'Utopia' of Sir Thomas More, and the 
 'Oceana' of Harrington. Besides these, we may mention 
 the 'Cvropaedia' of Xenophon, the 'Travels of Cyrus' by 
 the Chevalier Ramsay, the 'Idea of a Patriot King' by 
 Boliiigbroke, 'The Adventures of Gaudentio di Lucca,' 
 and perhaps the 'Travels of Gulliver.' 
 
 We propose to bestow some consideration on the doc- 
 trines and lives of several of these ancient and modern 
 legislators and philosophers; and first, 
 
 Of Plato's Views of Government. As the works 
 of Plato are voluminous, and in this country are seldom to 
 be found except in the hands of veteran students, it may 
 be well to explain of what they consist, before we proceed 
 to speak of his opinions. An enumeration of all the 
 works of this eminent philosopher, with their names and 
 extent, may invite the student, through curiosity or a 
 more worthy motive, to a further acquaintance with them 
 than what may be gleaned from the sketch here given. 
 
 The whole of Plato's works, then, are contained in 
 fifty-five Dialogues and twelve Epistles. Hermodorus 
 however, in his collection, makes only thirty-five dialogues, 
 but gives thirteen epistles. The reason of this variance 
 may be, that there is some doubt whether some of the dia- 
 logues be not the production of one or more of his distin- 
 guished pupils, as is certainly the fact with the dialogue 
 called 'Epinomis.' Each of the dialogues is designated by 
 a short and pithy name, such as 'De Poiitieo,' 'De Repub- 
 lica,' 'De Legibus.' His works may be divided into four 
 classes, viz. Physical, Logical, Ethical and Political. The 
 treatise 'De Republica' is not properly a dialogue, as the 
 whole is recited by Socrates; but he details the opinions 
 of the other supposed interlocutors. As the writings of 
 Plato may now be studied by those who are not deeply 
 versed in the Greek and Latin languages, they having re-
 
 Lect. IX] OF THE FORMS OF GOVERNMENT. 385 
 
 cently assumed an English garb, any one may now speak 
 of them with a familiarity which a few only could former- 
 ly have possessed. And, indeed, were scholars in those 
 languages more frequent, and even much addicted to their 
 perusal, still they would not be justified in disregarding 
 the laborious researches of such translators as Taylor and 
 Sydenham, who devoted much time and deep investiga- 
 tion, to attain a thorough knowledge of their author. 
 Nine of the dialogues were translated by Sydenham, and 
 the remainder, together with the epistles, by Taylor; and 
 the whole, with learned annotations, were published in 
 1803, in five quarto volumes. The works of Plato being 
 often referred to on subjects of natural and political juris- 
 prudence and ethicks, we shall present to the student 
 the names of all of them, together with the volume and 
 page in which they may be found in the translations of 
 Taylor and Sydenham. We would previously observe 
 however, if it be not sinning against all authority, that 
 after a pretty careful examination of his works, mainly, we 
 confess, through the aid furnished us by Taylor and others, 
 we are strongly inclined to the opinion that the wisdom, 
 learning and acumen of the divine Plato have been greatly 
 overrated. It appears to us that there is much of wordy 
 jargon, inexplicable subtlety, and occult and useless learn- 
 ing; often combined, indeed, with bold and striking 
 thoughts, close and deep reasoning, and numerous apo- 
 thegms and aphorisms of truth and wisdom. The prevail- 
 ing character, however, of his works is mysticism, sym- 
 bolical and incomprehensible physicks, logical cant, acroa- 
 matick speculations, and still more acroamatick words and 
 terms, perhaps at no time fully comprehended by his disci- 
 ples, or by his readers in after ages, and possibly as little 
 understood by himself. His imagination was certainly 
 brilliant, and his eloquence of the highest order; but that 
 his wisdom was not proof against the affectation and pe- 
 49
 
 3S6 OF THE FORMS OF GOVERNMENT. [Lcct. IX. 
 
 dantry of his age, is abundantly manifest throughout his 
 writings, in the various fantastical notions and sublime 
 nothings which a philosopher of the present age would 
 utterly repudiate. On the whole, therefore, we cannot 
 doubt that the age of Platonism is forever past; and 
 that the remark of Dionysius on another occasion may be 
 correctly applied to much of the philosophy of this greatly 
 distinguished man, viz that many of the notions are 'Verba 
 otiosorum senum ad imperitos juvenes.' And though the 
 wise and learned and aged of many nations and times have 
 sought instruction in the pages of the divine Plato, much 
 of this must be ascribed to circumstances which have per- 
 haps entirely passed away, and can never recur. These 
 we need not enumerate, as they will readily suggest them- 
 selves to the mind of a student tolerably acquainted with 
 the progress of human knowledge, from the days of Plato 
 to the dark ages, and from the revival of literature to the 
 eighteenth century, when the present philosophy of mat- 
 ter and mind became fully established. But, parting with 
 what may be considered too digressive, we shall now pre- 
 sent the promised list of Plato's writings. 
 
 List of Plato's ivritings, as contained in Taylor's 
 edition, in Jive volumes, quarto, translated into En- 
 glish by him and Sydenham, with annotations <$-c. 
 DIALOGUES. 
 
 VOLUME FIRST. 
 
 No. 1. 'The First Alcibiades.' page 9 to 9S 
 
 2 to 10. 'The Republic' — Ten Books 
 
 or Dialogues. - - 99 to 47S 
 
 VOLUME SECOND. 
 
 11 to 23. 'The Laws'— Twelve Dia- 
 logues. - - - 1 to 384 
 24. 'Epinomis, or the Philosopher.' 3S5 to 414 
 (J^f° This dialogue is supposed by Diogenes Laertius to 
 be the production of one of his disciples.
 
 Lect. IX.] OF THE FORMS OF GOVERNMENT. 3S7 
 
 No. 25. 'The Timaeus.' - - - 414 to 575 
 
 •26. 'The Critias, or Atlanticus.' - 575 to 593 
 
 VOLUME THIRD. 
 
 27. 'The Parminedes.' - - 1 to 201 
 
 28. 'The Sophista.' - - - 202 to 283 
 
 29. 'The Phsedrus.' - - - 283 to 373 
 
 30. 'The Greater Hippias.' - - 373 to 429 
 
 31. 'The Banquet.' 429 to 531 
 
 VOLUME FOURTH. 
 
 32. 'The Theaeteus.' - - - 1 to 99 
 
 33. 'The Politicus.' - - - 100 to 175 
 
 34. 'The Minos.' - - - 175 to 193 
 
 35. 'The Apology of Socrates.' - 193 to 229 
 
 36. 'The Crito.' - - 229 to 245 
 
 37. 'ThePhaedo.' - - - 245 to 343 
 
 38. 'The Gorgias.' - 343 to 461 
 
 39. 'The Philebus.' - - - 461 to 571 
 
 40. 'The Second Alcibiades.' - - 571 to 575 
 
 VOLUME FIFTH. 
 
 41. 'Euthyphra.' - - - 1 to 27 
 
 42. 'TheMeno.' ... - 28 to 101 
 
 43. 'Protagoras.' - - - 101 to 157 
 
 44. 'The Theages.' - - - 157 to 179 
 
 45. 'The Laches.' - - - 179 to 211 
 
 46. 'The Lyris.' - 211 to 239 
 
 47. 'TheCharmides.' - - 239 to 269 
 
 48. 'The Lesser Hippias.' - - 269 to 309 
 
 49. 'The Euthydemus.' - - 309 to 355 
 
 50. 'The Hipparchus.' - - 355 to 371 
 
 51. 'The Rivals.' - - - 371 to 40S 
 
 52. 'Menexenus.' - 408 to 431 
 
 53. 'Clitopho.' ... - 431 to 439 
 
 54. 'The Io.' 439 to 489 
 
 55. 'The Cratylus.' - - - 489 to 575
 
 3S8 or THE FORMS OP GOVERNMENT. [Lect. IX. 
 
 (0° The EPISTLES are twelve in number, and are as 
 follows: 
 
 No. 1, 2, 3. Epistles to Dionysius. [These are by some 
 supposed to have been written by Dion, one of his disci- 
 ples.] 
 
 No. 4. Plato to Dion: 5. Dion: to Perdiccas. 6. Plato 
 to Hermias and others. 7. Plato to the Kindred of Dion: 
 8. Plato to the Familiars of Dion: 9. Plato to Archytas. 
 10. Plato to Aristodorus. 11. Plato to Laodamus. 12. 
 Plato to Archytas. 
 
 Having spoken, in a general way, of the works of Plato, 
 let us inquire into some of his opinions and doctrines, 
 more particularly on the subject of government. 
 
 In the writings of this 'Prince of ancient philosophers' 
 we find two distinct classifications of the forms of govern- 
 ment. One is contained in his dialogue entitled 'The 
 Politicus;' the other in the dialogues called 'The Repub- 
 lic,' but chiefly in the fourth, eighth and ninth dialogues of 
 that work. His opinions generally on the subject of go- 
 vernment are also to be found in 'The Timacus' and 'The 
 Minos;' in his twelve dialogues called 'The Laws;' and 
 lastly, in his epistles to Dionysius. 
 
 In our examination of Plato's views of government, wc 
 shall confine ourselves mainly to his 'Politicus,' and 'Re- 
 public;' and first, of his classification of the forms of go- 
 vernment as it is displayed in the former of these works. 
 In the Politicus his cardinal divisions are three, viz. as the 
 government is reposed in one, in a few, or in many. His 
 subordinate divisions are six, viz. 1, a government by con- 
 sent; 2, by force; 3, by the rich; 4, by*the poor; 5, ac- 
 cording to established laws; and 6, without laws. The car- 
 dinal distinctions he thus applies. The government of one 
 he denominates monarchy, which may be of two kinds, 
 viz. that of a king, and that of a tyrant. The government 
 of a few he calls aristocracy, when established and rcgu- 
 
 #
 
 Lect. IX.] . OF THE FORMS OF GOVERNMENT. 389 
 
 lated by laws; and oligarchy, when it is corrupt, and sub- 
 ject to no certain laws. The government of many he de- 
 signates by the general name of democracy, though he says 
 that this is also of two kinds. Hence monarchy, aristocracy 
 and democracy are with him generic words; but when they 
 are corrupt, and are conducted with force, or without laws 
 and true political knowledge, he distinguishes the first by 
 the name of tyranny, the second by that of oligarchy, and 
 to the third he has assigned no special name, but retains the 
 word democracy as applicable indiscriminately to either the 
 pure or the corrupt government of the people. A corrupt 
 democracy has since taken the name of ochlocracy or anarchy. 
 
 It appears, then, that Plato in this work enumerates six 
 forms of government, and has given five special names, ac- 
 cording as the three elementary and pure forms may as- 
 sume a new character by abandoning the true principle on 
 which they essentially rest. 
 
 We find in the works of Plato some, little confusion as 
 to the exact distinction between a king and a tyrant. In 
 'Epinomis' he appears to regard these words as synony- 
 mous, and as meaning nothing more than a single ruler, go- 
 verning with wisdom and justice. But in his third epistle 
 to Dionysius he clearly alludes to the well known differ- 
 ence, of the one being regulated by law, the other by ca- 
 price. So, again, in 'Politicus' he makes the distinction to 
 consist in the Gne's governing by the consent, the other 
 without the consent of the people; but in the same dialogue 
 he abandons this distinction, and makes kingly government 
 dependent altogether on the wisdom and knowledge with 
 which an individual governs, without reference to the go- 
 vernment being one of law or not, of consent or not. 
 There is likewise another distinction between tyranny and 
 regal government, to be found in Plato. Tu^awos is made 
 to signify one who has himself acquired the sovereignty of 
 a state formerly free; the governing with prudence or oth-
 
 390 OF THE FORMS OF GOVERNMENT. [Lect. IX. 
 
 erwise, making no difference, as it is the manner of ac- 
 quiring political rule that is alone necessary to make one 
 a tyrant. In this view of the word it differs in no respect 
 from our word 'usurper,' except that usurpation is a word of 
 still more extensive import, and may be predicated of any 
 unjust acquisition of sovereignty, be the state previously 
 enslaved or free. 
 
 In the work under consideration, Plato lays down, in 
 substance, the following positions. 
 
 1. That the most perfect of all governments is that of a 
 king, because, ex vi termini, king means one eminent for 
 probity and wisdom. 
 
 2. That if any individual in a nation far exceeds all oth- 
 ers in prudence and justice, he is born a king, though he 
 should from circumstances for ever remain a private man. 
 
 3. That the government next in the scale of excellence, 
 is an aristocracy, which he says differs in no respect from 
 a regal government, except that the former is by a few, the 
 latter by one. 
 
 4. That a democracy, or popular government, is only 
 praiseworthy so long as it continues to be regulated by laws; 
 but that its strong tendency is to corruption, and, conse- 
 quently, that a good government is only to be expected 
 when sovereign power is exercised by one or a few. 
 
 5. That oligarchy, which is a corrupt aristocracy, is 
 much to be reprobated. 
 
 6. That tyranny is the worst of every species of domi- 
 nion, as it is the very opposite of a regal government, and 
 puts in requisition every bad quality of the soul, since a 
 tyrant is guided neither by intelligence nor law, but mainly 
 by caprice. He concludes, on the whole, that although 
 monarchy be the best of all known or practised govern- 
 ments, still it falls far short of a seventh species, which is 
 as much distinguished from a regal government as to ex- 
 cellence, as God is from the human race, and that this ad-
 
 Lect. IX.] OP THE FORMS OP GOVERNMENT. 391 
 
 inirable form admits of no divisions. This ideal polity he 
 gives no account of in 'Politieus,' but reserves the consi- 
 deration of it for his celebrated work entitled 'The Re- 
 public,' which we shall now proceed briefly to examine. 
 
 The treatise 'Dc Republica' is, as has been intimated, a 
 kind of political romance, in which Plato makes Socrates 
 recite certain dialogues supposed to have occurred between 
 that great philosopher and five others, in the house of Ce- 
 phalus, at the Pirseum. The object of these dialogues is to 
 present an imaginary government which shall combine 
 every excellence, and avoid every imperfection; one which 
 is based on all the virtues of our species, and so constituted as 
 to shun every practical evil which might result from the 
 vices of man. Plato considers that all other governments are 
 so many deviating forms, or deflexions from that perfect 
 model which is given in the 'Republic' In the ninth dia- 
 logue of this work, he states, in substance, that no such 
 perfect government hath ever been practised; that it is a 
 mere ens rationis, but still that its excellences may, and 
 ought to be imitated by all governments, as far as the vices 
 of man do not raise a perpetual barrier. Those, conse- 
 quently, who have censured Plato for making a mere beau 
 ideal, a fiction of the brain only, the foundation of a poli- 
 tical system, appear not to have duly appreciated his mo- 
 tive. The state of nature, for example, though it may ne- 
 ver have existed, may still be used by the philosopher as a 
 means of conveying much useful instruction, and be made 
 the foundation of as legitimate and salutary inferences as 
 if the state had actually existed, and men had departed 
 from it by primary associations, and, in time, by the forma- 
 tion of civil societies. So, again, the moralist may deline- 
 ate a perfect man, and hold him up as a model for imita- 
 tion, and yet there is not the least danger of confounding 
 the real, with this imaginary character of man. The ob- 
 jection, then, to which we allude, appears to be wholly
 
 392 OF THE FORMS OF GOVERNMENT. [Lect. IX. 
 
 groundless. Plato never offered this system to the world 
 as a practical scheme of polity, but merely intended it as a 
 lesson to those in power, and an exemplar for feeble imita- 
 tion. In that beautiful little Italian work by Count Verri, 
 in the dialogue which occurs between the ghosts of Cato the 
 Censor and of Cicero, on the question 'whether learning 
 corrupts manners,' it was objected to Cicero that his favou- 
 rite Plato had banished the divine Homer from his imagina- 
 ry republic. Cicero is made to reply, that 'Plato himself 
 would not have been willing to live in it; for if Plato had 
 not drunk at the pure fountain of the majestic eloquence of 
 Homer, he would never have possessed that magnificence 
 of style, that dignified simplicity, and that abundance of 
 charms, by which his occasional inextricable opinions cap- 
 tivate the mind with flattering illusion. Plato thought fit to 
 contrive the plan of a perfect government, since the world 
 afforded no example of such a one for imitation; and it is 
 fortunate that no nation has attempted to reduce this refined 
 theory to practice, since it would have exposed the reputa- 
 tion of that illustrious philosopher to the cavils of the ig- 
 norant.'* 
 
 This imaginary system, which Plato calls, per excelhn- 
 tiam, the 'right government,' is one of five forms set forth 
 by him in these dialogues. The classification in the Re- 
 public is considered as exclusively Plato's; whereas that 
 which is given in 'Politicus' is supposed to be, in substance, 
 the same with that taught by his great master Socrates. 
 
 The five forms enumerated and described in the treatise 
 under consideration, areTimarchy, Oligarchy, Democracy, 
 Tyranny, and the Right Government, that is, his own 
 ideal system, which it is the main object of the treatise 
 'De Republica' to set forth. 
 
 The entire classification of governments described in this 
 work, rests on a fanciful and ingenious comparison, which 
 
 * Vide Roman Nights, 255.
 
 Lect. IX.] OP THE FORMS OF GOVERNMENT. 6U6 
 
 is preserved throughout, between the four first mentioned 
 governments, and as many imaginary individual characters. 
 He contends that these governments, which are departures 
 from his own perfect form, take their rise from four several 
 evil dispositions of the human soul, viz. Ambition, Avarice, 
 Impatience of Restraint, and Prodigality without Virtue. 
 Hence these four governments are characterized each by 
 its particular vice, which in time produces its certain dis- 
 solution. Plato first describes the ideal perfect man, whom 
 he endues with a full measure of the cardinal virtues, jus- 
 tice, temperance, prudence and fortitude, and holds that 
 his right government must entirely correspond with this 
 imaginary individual. The other forms, he says, are more 
 or less corruptions of the perfect one, as they disregard the 
 practice of the cardinal virtues; and that what is just and 
 prudent and temperate and courageous in the soul of a per- 
 fect man, will be the rule of action in the right govern- 
 ment. He considers that a soul may be actuated mainly 
 by three principles, viz. Reason, by which it consults on 
 the means of self-preservation; Anger, by which it aven- 
 ges wrongs; and Prudence, by which it is led to supply 
 the demands of our nature. So a well regulated polity 
 will have three great objects in view, viz. to reason, to 
 war, and to provide. Hence, says he, the three essential 
 spirits, the Guardian, the Auxiliary, and the Mercenary. 
 There being as many kinds of republics as there are souls, 
 these giving rise by their prevailing temper to their re- 
 spective forms of government, there will be an Ambitious 
 Republic, an Avaricious Republic, a Licentious Repub- 
 lic, and a Prodigal or vicious Republic. Plato then pro- 
 ceeds to describe in order, how these four governments are 
 generated, the characteristics of each, and the man or in- 
 dividual who corresponds to the temper of the particular 
 government. After these four comparatively corrupt go- 
 
 50
 
 394 OP THE FORMS OF GOVERNMENT. [Lect. IX. 
 
 vernments are thus delineated, he proceeds, in the last 
 place, to describe the Perfect Form. 
 
 We shall now make a brief examination of Plato's views 
 of the four imperfect governments, and 
 
 1. Of Timarchy. To this government our philosopher 
 has given several other names, as the Cretan and Spartan, 
 because he regards the constitutions of Crete and of Lace- 
 demon as very similar to this: He likewise calls it an am- 
 bitious republick, or timocracy, because in such a govern- 
 ment the rule is in the hands of the wealthy and ambitious. 
 Their rulers, he says, will be honoured; the military will 
 be a distinct body, engaged only in martial and gymnastic 
 exercises, having nothing to do with agriculture and the 
 arts. In such a government wisdom and knowledge are 
 but little respected, when compared with strength, and an 
 acquaintance with the manoeuvres and stratagems of war. 
 The military become fond of wealth, and ambitious spirits 
 rise into influence. This species of government may be 
 compared, he thinks, to an ambitious man; one arrogant 
 and rough to his inferiors, mild to his equals, and even 
 submissive to those above him. 
 
 2. Of Oligarchy. In this government the ruling 
 principle, according to Plato, is avarice, or the acquisition 
 of wealth, as ambition is the soul of timarchy. The poor 
 have no share in the government. Power is monopolized 
 by the few who are rich, and these are ever active to keep 
 themselves in power, as the only means of preserving their 
 wealth. Hence two factions arise, viz. the rich and the 
 poor, the latter of whom are by far the most numerous. 
 Wars do not often occur, because those in power are afraid 
 to trust arms with the multitude; and they are also too 
 parsimonious to advance the means which are requisite to 
 sustain wars. The people are kept in strict subjection, 
 not only by force, but by various contrivances. Under
 
 Lect. IX.] OF THE FORMS OF GOVERNMENT. 395 
 
 such a government the same individual of 1 en follows the 
 profession of agriculture, of the arts, and of war. 
 
 The man who corresponds to the spirit of this govern- 
 ment, is then described, and he is said to be generally one 
 who has been ambitious, and is now mainly avaricious. 
 The change from a timocratical to an oligarchical man is . 
 next described; and lastly, the mode in which an ambitious 
 republic is apt to become an oligarchy. 
 
 The student will here perceive that oligarchy has a sig- 
 nification given it somewhat different from what is usual, 
 as it is generally contrasted with aristocracy. A govern- 
 ment by a few according to law r s, which is an aristocracy, 
 is usually opposed to a government by a like few, but ad- 
 ministered corruptly, and without laws. Plato, however, 
 does not mention aristocracy in the 'Republic,' nor does 
 he consider oligarchy in any other light than as a govern- 
 ment chiefly actuated by the principle of conferring power 
 on the wealthy alone. 
 
 3. Of Democracy. This form is where the multitude 
 govern; and the spirit which actuates it is said to be a rest- 
 lessness under restraint. Plato regards it as decidedly 
 more corrupt in its nature or tendencies than the other 
 two. In a democracy, which is the reverse of an oligar- 
 chy, the poor prevail over the rich. Education is but lit- 
 tle regarded. The rich are envied or despised. Two 
 violent factions arise, viz. the oligarchic and the democra- 
 tic. Actions and speech are but little restrained. Offices 
 are open to all without any qualification, and are given to 
 those who can intrigue the best. Talents and genius of 
 every description present themselves. Wisdom and virtue 
 are not unfrequent; but there is no fixed character, no es- 
 tablished rule of conduct, fickleness being a striking charac- 
 teristic. He then proceeds to describe the democratic 
 man, and how democracy is apt to arise from the corrup- 
 tion of an oligarchy.
 
 396 OF THE FORMS OF GOVERNMENT. [Lect. IX. 
 
 4. Of Tyranny. The last of the four imperfect forms 
 of government described in the 'Republic,' is Tyranny, 
 which he says is apt to be produced by the corruption of 
 a democracy. He thinks the people, who are always vio- 
 lent in their prejudices, will exalt some favourite, who un- 
 gratefully betrays them, and becomes a tyrant. Under 
 this government laws are not regarded. Caprice, and the 
 will of the tyrant, alone govern. Wars are frequent, se- 
 ditious occur often, the spirited and free are silenced by 
 bribery or death. The tyrant commences his reign with 
 affable and courteous manners, and with modestly declin- 
 ii g the title of monarch; lavishes presents on many who 
 can serve him, appears the friend of the poor, but, when 
 fully established, extorts money by every species of de- 
 vice. Wisdom, learning and virtue are discouraged. He 
 makes the slaves free, and constitutes them his body-guard. 
 The wealth dedicated to sacred purposes, is gradually 
 brought into his treasury. Rich and ambitious men are 
 considered enemies to the state, and are often sacrificed in 
 order to get rid of opposition, and sometimes to become 
 possessed of their wealth. Plato then describes the tyran- 
 nical man, that is, such a disposition as is peculiarly suited 
 to turn traitor to the people, when their affections have in- 
 discreetly elevated him to supreme power. Such a man, 
 he thinks, will be faithless, unjust, a coward, envious, 
 cruel, and a promoter of all vice; and according to his 
 doctrine of numbers, is 729 removes distant from a king, the 
 tyrant being represented by the multiple of 1. 3. 9. 27. 
 729. the first of which denotes the unity and perfection 
 of the royal character, as the fifth does its last faint image, 
 the tyrannic character. 
 
 5. Of The Right Government. Aristotle, in the 
 commencement of his second book of politics, enters into 
 a brief examination of his illustrious master's opinions 
 concerning the imaginary best form of government; and
 
 Lect. IX.] OF THE FORMS OF GOVERNMENT. S97 
 
 with that respect for truth which so strongly marked his 
 life, he does not hesitate to speak with all plainness his 
 objections to the fanciful notions of government set forth 
 by Plato in the work 'De Repuhlica. ' But though Aristo- 
 tle declines to adopt the ideas of Plato in regard to the 
 'right government,' he thinks that this, in common with 
 other ideal forms, is worthy the attention of the political 
 philosopher. 'In order,' says Aristotle, 'to discover and 
 ascertain that form of society under which those would 
 prefer to live who were at liberty to choose a mode of 
 civil existence completely agreeable to their wish, we must 
 not only consider the most admired political institutions 
 that have actually prevailed in the world, but likewise ex- 
 amine those imaginary plans of perfect government which 
 fancy has devised, and which philosophy has highly ap- 
 proved. Such an examination will enable us to determine 
 the hitherto undefined limits of justice and utility, in mat- 
 ters of society and government, and will thus rescue the 
 present work from the reproach of being undertaken for 
 the unworthy purposes of ostentation or censure.'* 
 
 It is not my intention to collect from the elaborate 
 pages of the treatise 'De Republica' the ideas of Plato as 
 to this imaginary or perfect republic. It would be rather 
 curious than useful. It is sufficient, in addition to what 
 we have already incidentally stated concerning it, to re- 
 mark that it is a species of simple aristocracy, so consti- 
 tuted, as Plato supposes, as forever to banish vice from its 
 dominions, and produce a state of unalloyed human hap- 
 piness. In this republic the idea that a commonwealth is 
 a partnership, is carried to the greatest possible length, as 
 it demands a community, not only of all possessions, but 
 even of wives and childien. There are many notions of 
 an equally impracticable nature, which justify the sound- 
 
 * Gill. Aris. Poli. Lib. 2, p. 73.
 
 39$ OF THE FORMS OF GOVERNMENT. [Lect. IX. 
 
 ness of his own criticism, when he states, at the end of his 
 ninth book, that 'the city we have now established exists 
 only in our reasoning, since it is no where on earth, as I 
 imagine. But in heaven there is probably a model of it 
 for any one inclining to contemplate it, and, on contemplat- 
 ing it, to regulate himself accordingly. And it is of no 
 consequence to him whether it does actually exist any 
 where, or shall ever exist here.' 
 
 The preceding account of Plato's philosophical opinions 
 on government, which we have collected from his works 
 with some pains, contains much of the substantial part of 
 the treatises entitled 'Politicus' and the 'Republic' It 
 has been an ancient fashion to extol this philosopher as the 
 Divine Plato; and his ideal republic, in common with his 
 other works, has been lauded in nearly all ages in a strain 
 of more than ordinary eulogium. Of its eloquence, which 
 Cicero so much praises, as being that of Jupiter himself, no 
 one, we presume, can speak but in terms of admiration; 
 but as a work of utility, sound sense, and real knowledge, 
 it appears to us to fall far short of the 'Politics' of his dis- 
 tinguished pupil Aristotle, which has been read and studied 
 with delight and great advantage at all times, and probably 
 laid the foundation of Montesquieu's immortal work. The 
 treatise De Republica has been studied, we apprehend, but 
 by a few, though it may be entitled to the incidental merit 
 of having originated the Oceana of Harrington, the Uto- 
 pia of Sir Thomas More, and various other like works. 
 We shall now proceed to the consideration 
 
 Of Socrates' Views of Government. We have al- 
 ready stated that Plato makes Socrates relate the whole of 
 the ten dialogues of the Republic, and we find him the 
 chief interlocutor in most of the other works of his eminent 
 pupil. Hence it has been supposed that Plato has but 
 echoed the opinions of his master, or that it is at least un- 
 certain whether it be Plato or Socrates who speaks.
 
 Lect. IX. OP THE FORMS OF GOVERNMENT. 399 
 
 There are no works of Socrates extant; but on the sub- 
 ject of government, Xenophon, in his Memorabilia of So- 
 crates, has given us many of the ascertained opinions of 
 that great philosopher. His classification of governments, 
 as given by Xenophon, is briefly and in substance as fol- 
 lows. He enumerates five species of polity, viz. 
 
 1. Regal Government. 
 
 2. Tyranny. 
 
 3. Aristocracy. 
 
 4. Plutocracy. 
 
 5. Democracy. 
 
 An individual who governs according to laws, and with 
 the consent of the governed, is a King. 
 
 He who governs without fixed laws, against consent, and 
 according to his own pleasure, is a Tyrant. 
 
 A few who govern with consent, justly, and according 
 to laws, constitute an Aristocracy. 
 
 A few who have power because of their wealth, estab- 
 lish a Plutocracy. And when people of all classes govern, 
 though justly, and according to laws, the government is a 
 Democracy.* 
 
 Of Aristotle's Views of Government. Among all 
 ancient philosophers who have transmitted us their views 
 of political science, none appears to us so comprehensible, 
 methodical and satisfactory as Aristotle. His work en- 
 titled 'Politics,' merits the high encomium of Dr Taylor, 
 who pronounces it 'one of the most, sterling among the 
 works of antiquity, and an inexhaustible treasure to the 
 statesman, the lawyer, and the philosopher.'! His classifi- 
 cation of the forms of government differs but little from 
 those of his illustrious predecessors. 
 
 When the publick good is the object of one man in au- 
 thority, Aristotle calls this a Regal Government: When 
 
 * Xen. Mem. Soc. Book 4. t Taylor's Civil JLavr, 342.
 
 400 OF THE FORMS OF GOVERNMENT. [Lect. IX 
 
 the same power is in the hands of a few, an Aristocracy: 
 And when in the hands of a multitude, a Commonwealth, 
 Polity or Republic. 
 
 But if the object of the single ruler be only his own ad- 
 vantage, it is then a Tyranny; and the same feature turns 
 an Aristocracy into an Oligarchy, or a Republic into a 
 Democracy. Thus, a Regal Government, an Aristocracy 
 and a Republic are called by Aristotle pure governments; 
 and to the three impure governments he applies the names 
 of Tyranny, Oligarchy and Democracy. By Monarchy 
 he means simply the government of one person, which, as 
 in Plato's Epistle to Dionysius, may embrace the govern- 
 ment of a tyrant no less than that of a king. The Regal 
 Government, he says, is of five kinds, viz. 
 
 1. The Heroic Government. This is the rule of a 
 king, where the subjects have voluntarily submitted to 
 him civil, military and religious powers; but still so li- 
 mited as not to clothe him with the power of life and 
 death, nor any other authority which would be apt to be 
 tyrannically abused. This he supposes was the power 
 possessed by kings in the heroic ages, when heroes and 
 demigods are believed to have governed men with the 
 strictest regard to justice. This government, he says, 
 may be either hereditary or elective. 
 
 2. The Barbaric Government. This, he states, pre- 
 vailed among the Asiatic barbarians. The king is absolute, 
 but yet governs according to laws. The power is heredi- 
 tary only. 
 
 3. JEsymetic Government. It is so called from the 
 iEsymetes of ancient Greece, who were elective tyrants, 
 chosen for life, or for a limited term, or for some special 
 purpose, but with powers limited whilst they endured. 
 This government is a mixture of royalty and tyranny. 
 He exemplifies it by Pittacus, who was chosen by the peo- 
 ple of Mitylene to conduct the war against the exiles, but
 
 I.ect. IX.] OF THE FORMS OF GOVKRXMKNT. 401 
 
 who cruelly tyrannized over an ill-fated country. This 
 government, you perceive, may also be illustrated by the 
 power conferred on the Roman Dictator. 
 
 4. The Spartan Government. This he represents as 
 a limited royalty, hereditary, but conducted with justice, 
 and according to laws. In such a government the king is 
 a general in war, a judge in peace, and the chief in all 
 matters of religion not specially appropriated to the priest- 
 hood. He exemplifies this form by the government of 
 Sparta. 
 
 5. The Regal Government, properly, and by way of 
 distinction, so called. This he conceives to be the most 
 absolute of all, because the king is the most eminently 
 qualified. Such a ruler bears to the state the same relation 
 as a good master to his family, the whole sovereign au- 
 thority being concentrated in him. This power, he says, 
 is derived to him from the superior excellence of his cha- 
 racter, the preeminence of his virtues. This doctrine 
 Aristotle himself appears to advance with some caution; 
 but being desirous perhaps to compliment his illustrious 
 patron, and his distinguished pupil, he unfolds his doctrine 
 on this subject gradually, as if the native honesty of his 
 soul had some conflict with his desire to flatter the father 
 and the son, on whom his fortunes somewhat depended. 
 In the eighth chapter of his third book, he seems to argue 
 and to qualify the doctrine; in the ninth it appears more 
 broadly; and in the conclusion of the tenth book, it is dis- 
 played in all its nakedness and folly. In a preceding lec- 
 ture we stated fully our views of this subject. The people 
 would, no doubt, act wisely were they always to select 
 the most virtuous and best qualified to govern them. But 
 we cannot admit with Aristotle, that knowledge and vir- 
 tue confer per se a positive right to governmental power, 
 or that such persons ought to be exempt from all govern- 
 ment, and be a law unto themselves! Laws, says he, 
 
 51
 
 402 OF THE FORMS OF GOVERNMENT. [Lect. IX. 
 
 should only be among equals in kind, and it would be as 
 absurd to subject the preeminently virtuous and wise to 
 laws, as it was in the fable of Antisthenes, where the hare 
 claimed an equality of power and rights with the lion, that 
 king of the forests. And after exemplifying his doctrine 
 still further, he concludes that 'all men should cheerfully 
 and uniformly obey all such rulers, and acknowledge the 
 natural and perpetual sovereignty of their virtues.'* 
 
 Of Polybius' Views of Government. Not a great 
 deal is known of the opinions of Polybius on the subject 
 of government. In a fragment of the sixth book of his 
 Roman History, which is appended by Spelman to his 
 translation of the 'Roman Antiquities' of Dionysius of Ha- 
 licarnassus, Polybius remarks that 'it is customary to estab- 
 lish three sorts of government, viz. 'Kingly Government, 
 Aristocracy and Democracy; upon which one may ask 
 them, whether they lay these down as the only forms of 
 polity, or as the best; for in both cases they seem to be 
 in an errour, since it is manifest that the best form of go- 
 vernment is that which is compounded of all three.'* Po- 
 lybius then proceeds to give, somewhat at length, his 
 views of the simple governments, and of their natural ten- 
 dency to degenerate. He applies his observations to the 
 Roman commonwealth at the commencement of the se- 
 venth century A. U. C, at that period in a most flourishing 
 condition; and though he considers the mixed constitution 
 of Rome as at that time the most perfect model of go- 
 vernment known to the world, yet he predicts its down- 
 fall from denned causes, and with a degree of confidence 
 almost amounting to prophecy. These are his general 
 views. We shall now inquire more particularly into his 
 opinions. 
 
 Polybius considers monarchy as the first form of go- 
 vernment known 10 man, and the work of nature herself; 
 
 * Spel. Rom. Antiq. 391.
 
 Lect. IX.] OF THE FORMS OF GOVERNMENT. 403 
 
 but denies that any has ever been established which did not 
 contain within itself the seeds of its own degeneracy and 
 ultimate dissolution. These inherent infirmities or vices 
 inevitably, in time, convert it into a tyranny, or at least 
 into an aristocracy. He explains the reasons, why it is not 
 in the nature of monarchy to continue pure, and says that 
 when aristocracy is raised on its ruins, the laws and the 
 rights of the governed will be respected for a time, that 
 is, until the similar inherent seeds of corruption in this 
 form also, will occasion it to degenerate into an oligarchy: 
 That ambition, avarice, and other odious passions will dis- 
 play themselves, and that if the same aristocratic rulers do 
 not fall victims to the disease, their descendants most pro- 
 bably will. He further states that the oligarchy thus ge- 
 nerated, will in turn yield to a democracy. The people 
 will become disgusted with the vices of their rulers, a 
 leader will place himself at the head of the multitude, and 
 those in power will be at once displaced. The people 
 may, for a time, be happy in the enjoyment of their liber- 
 ties, but, after a while, ambitious and intriguing spirits will 
 appear, and a monarchy or tyranny will be re-established. 
 This is the eternal round of revolutions to which, in the 
 opinion of Polybius, the simple forms of government are 
 subjected by a law of their very nature. He therefore 
 repudiates the whole of the simple forms, as essentially 
 unstable, but admits that each possesses its peculiar virtues. 
 Polybius then proceeds to comment on the mixed govern- 
 ments. He discourses somewhat largely on the then ex- 
 isting Roman polity, points out the theory of its checks 
 and balances, and admits that the three elementary forms 
 are so admirably united in it, as to render it difficult for 
 any one to pronounce which of them preponderates. This 
 equilibrium is declared by Aristotle to be one of the sur- 
 est tests of a good and durable government, and notwith- 
 standing this eulogium by Polybius on the constitution of
 
 404 OF THE FORMS OF GOVERNMENT. [Lect. IX. 
 
 his country, looking into the vista of futurity, he plainly 
 unfolds the causes of Roman degeneracy, and of Roman 
 subjection. This anticipation of the future destinies of 
 his country began to be verified as early as the seditions of 
 the Gracchi, and was completed in the subsequent over- 
 throw and ruin of the commonwealth. 
 
 There can be no doubt of the general philosophical 
 correctness of this theory of political mutations; and Po- 
 lybius has shown himself to be a sagacious politician, and 
 one of candour and decision, in thus boldly stating a doc- 
 trine which to a Roman must have been extremely unpa- 
 latable. The student will here observe that Polybius was 
 the first to distinguish democracy into pure and corrupt, 
 by distinct names: for the former he retains the name of 
 democracy, whilst to the latter he gives the name of och- 
 locracy. We may remember that Plato, in 'Pacificus,' as- 
 signs no special name to a corrupt democracy; and that 
 Aristotle always uses the word democracy to signify a cor- 
 rupt government by the people, and that it arises from vi- 
 tiating a republic or commonwealth. 
 
 We have now finished our brief and desultory remarks 
 on Polybius; but, in connexion with his ideas on the sub- 
 ject of mixed government, we shall advert to an observa- 
 tion of Blackstone, who appears not very correctly to 
 have apprehended the theoretical, or even practical doc- 
 trines of the ancients, on this point of blending the prin- 
 ciples of the three elementary forms of government. The 
 enlightened Commentator on English Law, without bring- 
 ing to his view the Lacedsemonian Commonwealth, or the 
 mixed constitution of Rome, of Carthage, or of Crete, and 
 not adverting to the profound views of Polybius, seems to 
 suppose that the ancients had in general no idea of any 
 other permanent form of government than those of mo- 
 narchy, aristocracy and democracy. And to justify his 
 opinion, he cites a passage from Cicero's Fragment 'De
 
 Lect. IX.] OF THE FORMS OF GOVERNMENT. 405 
 
 Republica/ lib. 2, and one from the Annals of Tacitus, 
 lib. 4, in which Cicero is merely of opinion that a go- 
 vernment constituted of the three simple forms would be 
 the best, and Tacitus rejects the doctrine as visionary and 
 impracticable.* It cannot, however, have been the opi- 
 nion of this able lawyer and polite scholar, that mixed 
 forms of government were unknown to the practice or to 
 the political philosophy of ancient nations. Nor could he 
 have supposed that Cicero designed to advance a novel or 
 untried opinion; or, indeed, that he and Tacitus did not 
 know the precise character of the Roman government, in 
 every stage of its history. His silence on the doctrines 
 of Polybius is, however, a little remarkable, since there 
 can be no mistake in regard to the clear views which were 
 entertained on the subject by that sensible historian. The 
 commentator, perhaps, was so strongly impressed with the 
 passing excellence of the well contrived mixed system of 
 his own government, as to hold in no account the more 
 rude, but still praiseworthy approaches of the ancients 
 towards the now well known theory of governmental checks 
 and balances. Polybius, indeed, has indiscreetly said that 
 'it is impossible to invent a more perfect system of govern- 
 ment,' alluding to the existing government of his country. 
 Modern days have proved him mistaken; but it should be 
 borne in mind that we, also, shall have a posterity, whose 
 improvements in the art and philosophy of government 
 may so greatly excel any of our present conceptions, that 
 they may with justice less respect the great system of En- 
 glish constitutional law, than did the distinguished com- 
 mentator the various systems known or practised by the 
 ancients. 
 
 Let us now pass on to the opinions of some others 
 among the ancients. 
 
 * 1 Black. Com. 49.
 
 406 OF THE FORMS OF GOVERNMENT. [Lect. IX. 
 
 Of Charondas and Zaleucus. The laws and institu- 
 tions established by these two early legislators, have gained 
 them much celebrity. Very little, however, is known of 
 either of them. The account we have of Charondas is 
 chiefly from a brief notice of him by Diodorus Siculus, 
 which, in substance, is this. The ancient Sybaris, a Gre- 
 cian city and colony in Italy, was an aristocratic republic. 
 Before the time of Charondas, it underwent four remarkable 
 revolutions. The first occurred under its governor or 
 chief, Telys, who courted the people, and excited a revolu- 
 tion against the aristocracy of the city. The fortunes of 
 the wealthy were confiscated, and they were banished 
 from the colony. These outcasts having been kindly re- 
 ceived by the city of Crotona, of which Pythagoras was a 
 distinguished citizen, Telys demanded their surrender. 
 This being refused, he declared war against Crotona, but 
 was totally defeated by Milo, who gave Sybaris up to pil- 
 lage, and left it in ruins. Half a century after this, Syba- 
 ris was rebuilt, but was again destroyed by the Crotonians. 
 Callimachus, Archon of Athens, again revived it, under 
 the name, however, of Thurium. It then became popu- 
 lous, wealthy and powerful. No less than twenty-five 
 cities, and a splendid capital, were added. Luxury and 
 effeminacy increased to such a degree as to render their 
 name proverbial. An aristocracy was formed, chiefly by 
 the former inhabitants of Sybaris. They seized on all the 
 valuable lands in the vicinity of the city, and left the resi- 
 due to the new comers. All offices of trust and profit 
 were monopolized by them, and many invidious distinc- 
 tions maintained between them and the foreign citizens; 
 whilst the poor were cither disregarded or oppressed. 
 Force and courage were, however, on the side of the peo- 
 ple, and a civil war ensued. The nobility were sacrificed, 
 and the people proceeded without delay to the establish- 
 ment of a new government. They entered into an alliance
 
 Lect. IX.] OF THE FORMS OF GOVERNMENT. 407 
 
 with Crotona, and received into their community emigrants 
 from all parts of Greece. They divided all the inhabitants 
 into ten tribes, chose Charondas for their legislator, and es- 
 tablished a democratic government. Charondas, it is sup- 
 posed, suggested many wise laws, and excellent institu- 
 tions. Aristotle says that his laws surpass in elegance 
 and accuracy the judicial and legislative compositions 
 even of his own time.* 
 
 The fragments of his laws preserved by Diodorus Sicu- 
 lus, relate rather to the civil, than the political state, little 
 being known as to the fundamental laws, or the organiza- 
 tion of his government. Scanty as they are, they appear 
 to have excited the respect of those who perhaps knew as 
 little of his laws and institutions generally as we do. 
 They are, in substance, as follows: . 
 
 1. Masters, supported at the publick expense, shall be 
 established, and every male child shall be taught to read 
 and to write. 
 
 2. No one shall be a member of the publick councils, 
 who, having children, shall marry a second time. 
 
 3. Any one convicted of slander, shall be conducted 
 through the streets,, crowned with tamarisk, t 
 
 * Aris. Pol. Lib. 2, ch. 10. 
 
 f Craving indulgence for a momentary digression into the region of 
 floAvers, I would remark that this shrub, botanically called Tamarix, has 
 in many ancient nations enjoyed a like reputation of exerting some moral 
 or other influence over the human heart and character. It is supposed to 
 be derived from the Hebrew word tamaris, to cleanse; and hence appro- 
 priately worn by the slanderer, whose foul heart is supposed to need puri- 
 fication. It is frequently alluded to by Virgil in his Eclogues, under the 
 name of Myrica, and is called by Pliny Bria Sylvestris. Parkinson, in his 
 Herbal, page 1479, has described this shrub, which is indigenous in Eng- 
 land, and indeed in most of the temperate countries of the old world, 
 though entirely unknown, I believe, to the botany of this continent, at least 
 of the United States. Phillips in his splendid and fanciful work, entitled 
 'Floral Emblems,' places the Tamarix under the head of 'Crime.' He 
 says that it was a custom with the Romans to put wreaths of this flexible
 
 -40S OF THE FORMS OF GOVERNMENT. [Lect. IX. 
 
 4. No one shall associate with people of vicious charac- 
 ter. 
 
 5. Laws shall be changed only when the citizen who 
 proposes the alteration or repeal, appears in the publick as- 
 sembly with a halter round his neck, by which he shall 
 be hung if the proposed change be not adopted by the 
 people. 
 
 6. The guardianship of the estate of orphans shall be en- 
 trusted to relatives on the side of the father, and the per- 
 sons and education of orphans shall be entrusted to rela- 
 tives on the part of the mother. 
 
 7. Those who refuse to fight for their country, shall not 
 be put to death, as formerly, but shall be exposed in the 
 publick square, in woman's apparel, during three days. 
 
 8. No one shall appear armed in the publick square. 
 However wise the political laws may have been, all 
 
 agree that the government was too democratic, and that it 
 was not sufficiently balanced. In regard to the last law we 
 have mentioned, it is related of Charondas that, on being 
 informed, on a certain occasion, that great commotions had 
 taken place, he hastened, with his sword on, into the pub- 
 lick assembly, in order to suppress the disorder. Being 
 reproached with violating one of his own laws, (though it 
 was merely accidental that he then appeared with his 
 sword,) he hastily replied, 'I shall vindicate the law,' and 
 immediately plunged the sword into his own heart. Thus 
 terminated the government and career of this patriot and 
 legislator.* 
 
 Zaleucus has also great traditionary fame, as a wise le- 
 gislator; but his laws and institutions have almost wholly 
 
 plant on the heads of criminals; that it is from this circumstance called 
 the accursed or unhappy tamarisk. 
 
 It belongs to the Pentandria Triginia, artificial class and order of Linnaeus, 
 and to his natural order, Succulentce. 
 
 * Diod. Sic. Lib. 12, page 486. Bentley's Dissertation upon Phalaris, 368.
 
 Lect. IX] OF THE FORMS OF GOVERNMENT. 400 
 
 perished. It is a little singular that several of the laws 
 &c. of Charondas have been ascribed to Zaleucus, and some 
 which are with confidence attributed to Zaleucus, are 
 placed by others to the account of Charondas. Thus, for 
 example, the law relative to the repeal or modification of 
 laws, is ascribed by Demosthenes and Stoboeus to Zaleucus. 
 So, also, the celebrated preamble to the code of Zaleucus, 
 which is still extant, has been with equal confidence given 
 to Charondas. A few of the laws of Zaleucus are to be 
 found in Plutarch's lives. 
 
 Both Zaleucus and Charondas are said to have been dis- 
 ciples of Pythagoras. The government of the former was 
 more aristocratic than that of the latter, and was also much 
 more lasting. The respect of Zaleucus for religion is 
 strongly manifested in his preamble; and the other two 
 springs of his government are said to have been a high 
 sense of honour, and a strict sense of obligation. 
 
 We shall conclude our examination of the views of an- 
 cient legislators and philosophers on the subject of the 
 forms of government, and of political science, with ad- 
 verting to Cicero, intelligent, pleasing and eloquent al- 
 ways, quern appelldsse, lauddsse est. The opinions of 
 this polite, and no less sound philosopher, on the topics of 
 our inquiry, are to be found in his treatise 'De Legibus,' 
 and in the fragments which have been preserved of his 
 treatise 'De Republica.' 
 
 The fate of the treatise De Republica, also known under 
 the name of 'The Dialogues,' is familiar to every scholar. 
 'Political students,' says Mr Macaulay, 'have reason deeply 
 to regret the loss of Cicero's Treatise. Among many in- 
 teresting discussions, it doubtless contained a classification 
 of forms of government; and it is probable that Cicero fol- 
 lowed the old division of Socrates, more than that which 
 is peculiar to Plato. But whatever system he adopted, he 
 
 62
 
 410 or the forms or GOVERNMENT. [Lect. IX. 
 
 no doubt varied it so as to accommodate it to the prefer- 
 ence which he was ever zealous to attribute to the Roman 
 constitution.'* 
 
 The knowledge possessed in modern times of this fa- 
 vourite work of the philosopher of Tusculum, was derived, 
 until very recently, wholly from a few scattered fragments 
 preserved by various writers in the form of quotations; 
 principally by Lactantius, Aulus Gellius, St. Augustine, 
 Macrobius, Prisciflian, Seneca, and by Cicero himself. 
 The whole of these however, if collected, would not 
 amount to more than one-twelfth of the treatise when en- 
 tire. During many centuries, the learned world deplored 
 the loss of a treatise so much praised, not only by the 
 friends and cotemporaries of its illustrious autho*, but by 
 the philosophers of all times, since the disappearance of 
 the work. No satisfactory evidence is said to exist of 
 their being a single copy of this production extant, since 
 the tenth century, till, singular and interesting to relate, the 
 work was discovered, and partly brought to light, by Sig. 
 Mai, the present librarian of the Vatican. 
 
 It appears that St. Augustine, who so frequently alludes 
 to this work in his treatise 'Be Civitate Dei,' obliterated 
 from the parchment which contained it, this relic of Ci- 
 cero's latter and more mature genius, and supplied its 
 place with his own commentaries on the Psalms of David. 
 The practice of effacing former inscriptions for the sake of 
 the parchment, then so valuable, had been long known, and 
 led to the librarian's interesting discovery. By the appli- 
 cation of chemical agents, the commentary of St. Augus- 
 tine was in turn effaced, and Cicero's treatise made in part 
 to stand forth, in nearly all its original accuracy. Still, 
 however, these discovered portions amount only to 'about 
 one-fourth of the entire work. They, together with the 
 
 • Mar.au. Ruii. 389
 
 Lect. IX } OT THE r0 BMS OP GOVERNMENT. 411 
 
 former fragments, have recently been published by Sig. 
 Mai, with explanatory notes, and an interesting narrative 
 of the discovery. This librarian's work has not yet reach- 
 ed the American public, and I have no further knowledge 
 of it than what has been derived from the English and 
 American literary journals, by which it has been conside- 
 rably praised. From Ihe specimens, however, which are 
 given it appears to me that the treatise De Repub/icd, 
 even in its present form, is to be valued more for its eupho- 
 nic and glowing eloquence, than for solid or valuable infor- 
 mation in regard to the views of Cicero or the ancients 
 on the subject of political science, and the forms of go- 
 vernment. Cicero may have aimed at the production of a 
 work, not only similar in title to that of his favourite Plato, 
 but reserrrbling it in that which we think mainly distinguish- 
 es the work of the Greek philosopher, its style, which, as 
 Cicero himself asserts, the gods would not fail to adopt, 
 were they called to use the language of men. If this were 
 the desire of the Roman orator, his style would be highly 
 polished, to the prejudice, perhaps, of substance, and that 
 deep and elaborate knowledge which it would be so desi- 
 rable at this day to find in it. 
 
 From the information we have of the work thus brought 
 from its concealment, we find that Cicero, in his first book, 
 speaks of the origin of society and government, and of the 
 advantages and disadvantages of the simple forms of go- 
 vernment; the whole of which is considered by him in 
 a manner very similar to that of Socrates, of Aristotle, 
 and of Plato in 'The Pacificus,' verifying the supposition 
 of Mr Macaulay to which we have already alluded, that 
 in the last treatise he did not doubt that Cicero had 
 treated the subject of government, and its various forms, 
 in the manner rather of Socrates, than of Plato in the Re- 
 public; and further, that he presumed the government to 
 which Cicero would manifest a decided preference, would
 
 412 OF THE FORMS OF GOVERNMENT. [Lect. IX. 
 
 be of the mixed form, similar to that of Rome. Although 
 the anticipations of this writer have been realized to this 
 extent, yet his expectation in regard to the value and ex- 
 cellence of the lost opinions of Cicero, does not seem to be 
 justified by what has been redeemed from darkness, by Sig. 
 Mai's discovery. In the second book of this treatise, Cicero 
 speaks of the Roman government, which, as he thinks, com- 
 bines the characteristic excellencies of the three elementary 
 forms. He then points out the liability of these simple 
 forms to degenerate into tyranny, oligarchy or anarchy; 
 which is a view very similar to that which we have stated 
 from Polybius. The fragments of the third book are taken 
 up chiefly in the discussion of the benefits which flow from 
 the virtuous administration of a government; and the re- 
 mains of the fourth and fifth books are extremely, meagre, 
 very little being known even of their general contents. 
 To the sixth book it is said that Sig. Mai's discovery 
 has added nothing. It is known, however, to have con- 
 tained (as Plato's Republic does) a description of an ima- 
 ginary perfect man, or rather citizen. From the whole 
 then, as far as we have been able to ascertain the extent 
 and value of the fragments lately brought to light, we 
 cannot perceive that much has been added to cur stock of 
 knowledge in regard to the opinions of the ancients gene- 
 rally, or of Cicero in particular, as to the theory of govern- 
 ment, especially of the mixed kind, in which alone are 
 the modern nations much interested, the doctrine of checks 
 and balances in political rule being at this day a topic of 
 the greatest interest to the statesman and philosopher. We 
 admit that our means of judging of Sig. Mai's new edition 
 of the treatise De Republicu, are very limited. Every 
 polite scholar, we are sure, will heartily welcome every 
 new period from the honeyed pen of Cicero. But those 
 who are in search of sound opinions on the true theory of
 
 JLect. IX.; OF THE FORMS OF GOVERNMENT. 413 
 
 government, will find perhaps in these new fragments more 
 fascination than knowledge.* 
 
 Having completed the examination, as far as we design- 
 ed, of the opinions of ancient legislators and philosophers, 
 we shall now proceed to a similar inquiry into the doc- 
 trines of some of the more distinguished among the mo- 
 derns; after which we shall take up the remaining topics, 
 as designated in our syllabus. 
 
 Among the moderns, those best known to the English 
 and American jurisprudent, as having contributed largely 
 to the improvement of the science of political and consti- 
 tutional legislation, are Machiavel, Harrington, Sidney, 
 Montesquieu, Milton, Locke, Bolingbroke, Hume, Frede- 
 rick II., Napoleon, Bentham, and the Authors of the Fede- 
 ralist. Each has great merit, and all have, in various de- 
 grees, and in different ways indeed, considerably enlarged 
 the boundaries of this science, and supplied materials 
 whereby the civil and political liberties of the subject or 
 citizen have been greatly augmented and secured. We 
 shall present to you a brief notice of the principal works 
 and leading doctrines of these distinguished writers; our 
 chief object being to invite your attention to them, by ma- 
 king you somewhat acquainted with their achievements in 
 the field we are hastily surveying. 
 
 1. Of Machiavel. This celebrated political writer 
 was born at Florence, it is supposed in 1469. It has 
 been his fate, while justly eminent for genius, learning, 
 and worth of the first order, to have been regarded by 
 many as given over to vices of the most open and heinous 
 character, as blasphemy and atheism. Before we proceed 
 to our cursory notice of his works, we shall examine a lit- 
 tle into the celebrated controversy which exists in relation 
 
 * Since the present lecture was delivered, Sig. Mai's work bas appeared 
 in this country. We have carefully examined it, but find no occasion to 
 vary the foregoing remarks.
 
 414 OF THE FORiMS OF GOVERNMENT- [Lect. IX. 
 
 to the character and design of one of them, entitled 'The 
 Prince;' a controversy in the republic of letters, which 
 may be regarded as a phenomenon, and which remains to 
 this day not entirely settled, though more than three cen- 
 turies have elapsed since the publication of the work. 
 Yet the work itself is perfect, free from mystery, unequi- 
 vocal in its expressions, full of illustrative examples and, 
 as we think, consistent in its design throughout. Machia- 
 vel is the author of several works; but those of most re- 
 nown, which have been read in all nations, studied by 
 emperors, kings and scholars, and have been equally the 
 favourites of tyrants, and the zealous friends and cham- 
 pions of freedom, are his 'Prince,' the 'Discourses on the 
 First Decade of Livy,' and his 'History of Florence.' 
 
 The controversy to which we have alluded, relates chief- 
 ly, as we have stated, to his 'Prince.' By one party it is 
 strongly maintained, that he stands a solitary example of a 
 writer who has undisguisedly laboured, in a methodical 
 and learned treatise, to instruct rulers in the odious art of 
 tyranny; to reduce the scheme of absolute government to 
 a science; and, finally, to present to future sovereigns a 
 manual of instruction in the detestable policy which shall 
 mete out to their subjects as little of the goods of life as 
 possible, while it extracts from them whatever may be re- 
 quired for the wealth, the pageantry, the power, and the 
 aggrandizement of the prince. Those who support this 
 opinion, have spoken of Machiavelism and tyranny as 
 strictly synonymous. They regard his policy, not only as 
 a system of oppression, but of the basest intrigue and 
 perfidy. 
 
 By another party it is urged with equal confidence, that 
 tyranny never had a greater enemy than in Machiavel; 
 that the whole work is a bitter satire on the actual con- 
 duct of tyrannical princes; that under pretence of in- 
 structing sovereigns, he has given the most important les-
 
 Lect. IX.J OF THE FORMS OF GOVERNMENT. 415 
 
 sons to the people; and that the arts of government, as 
 they are often practised, are exposed, not for imitation, 
 but for abhorrence. There is a third, and, indeed, a fourth 
 opinion in regard to this celebrated work, viz. that Machi- 
 avel had no very definite or fixed design; that 'The Prince* 
 was intended neither as a manual for tyrants, nor a guide 
 for republicans, but was written more through spleen, or a 
 desire to evince his sagacity and great versatility of genius, 
 than for any other cause. On which side of this old con- 
 troversy the truth lies, is perhaps not extremely material, 
 as it is very evident that, be the author's design what it 
 may, lessons useful both to the arbitrary views of monarchs, 
 and the liberal schemes of a people, may be extracted from 
 it; though, on the whole, we regard the works of Machia- 
 vel, and this among the number, as having a tendency de- 
 cidedly more favourable to liberty than to tyranny. We 
 shall pursue the subject, and place before the student our 
 reasons for believing that Machiavel has been greatly tra- 
 duced. It will be important to recollect that Machiavel 
 has been accused, not only of being the friend of arbitrary 
 rule, and of teaching despots how to tyrannize, but also 
 of the opposite offence of so greatly favouring a demo- 
 cratic form of government, as to have been induced to 
 teach the principles of insubordination, and to excite the 
 people to rebellion. Charges so different in their nature 
 cannot be easily credited, and, of themselves, seem to raise 
 a presumption of innocence of both. In such a contro- 
 versy, we think Machiavel is entitled to be heard, and to 
 testify in his own cause. He has had many friends, indeed, 
 who have declared their belief in the purity of his inten- 
 tions; but we shall first refer to his own vindication, in his 
 letter addressed to his friend Zenobio. * In that letter he 
 vindicates himself, first, against the charge of such affec- 
 
 * Vide Had. Misc. vol. 1, 78.
 
 416 OF THE FORMS OF GOVERNMENT. [Lect. lX. 
 
 tion for democracy as indicates a rebellious spirit; second- 
 ly, against the offence of impiety, and of vilifying the 
 church; and lastly, against the accusation of teaching mo- 
 narchs, in his book of 'The Prince/ all the execrable villa- 
 nies that can be invented, and instructing them how to 
 break faith, and so to oppress and enslave their subjects. 
 In regard to this charge, he concludes his letter thus: 'I 
 come now to the last, which is that I teach princes villany, 
 and how to enslave and oppress their subjects. If any man 
 will read over my book of 'The Prince' with impartiality 
 and ordinary charity, he will easily perceive that it is not 
 my intention therein to recommend that government, or 
 those men, there described to the world; much less to 
 teach men to trample upon good men, and all that is sacred 
 and venerable upon earth, laws, religion, honesty, and 
 what not. If I have been a little too punctual in descri- 
 bing these monsters, and drawn them to the life, in all their 
 lineaments and colours, I hope mankind will know them 
 the better, and avoid them; my treatise being both a satire 
 against them, and a true character of them.' This letter 
 bears date April 1, 1537.* 
 
 That this is the true light in which this work ought to 
 be regarded, also appears manifest when we see who have 
 been generally the advocates of the opposite opinion. 
 His vehement censure of the abuses of the court of Rome 
 brought upon his name and writings the thunders of the 
 Papal See, which were issued against him many years 
 after his death. During his life, Machiavel was found but 
 little fault with by the church. But more than half a 
 century after, we find that by a bull of Clement VIII. 'The 
 Prince' was condemned, and every one held liable to ex- 
 
 *I find, by a letter of the Bishop of Gloucester, daled May, 1760, 
 there is reason to doubt the genuineness of this vindication, and that it is 
 the production either of Mr Nevil, the author of Plato Redivivus, or of the 
 Marquis of Wharton.
 
 Lect. IX.] OF THE FORMS OF GOVERNMENT. 417 
 
 communication who should read it. Another class of ene- 
 mies to the fame of this great genius consists of the friends 
 of absolute monarchy; for on the reestablishment of des- 
 potism in Florence, Machiavel was deprived of all office, 
 imprisoned, and even tortured; a strong proof of the ge- 
 neral tendency of his writings, and the true acceptation in 
 which they were held by the advocates of unlimited rule; 
 and that the idea of his deliberately teaching the art of 
 tyranny, is without the least foundation. His enemies, 
 however, have inferred that 'The Prince' was seriously 
 intended thus to instruct monarchs, from the apparent 
 absence of irony, from its didactic character, and from 
 there being, as is said, similar doctrines in the Discourses 
 on Livy. Of this opinion are many persons of learning 
 and discrimination, as Moreri, Cardinal Pole, Rupert, Ten- 
 hove, Lucchesini, Jovius, Frederick of Prussia, Voltaire, 
 Tiraboschi, Ambrose Catharinus, Mr Roscoe, and Lord 
 Lyttleton, the last of whom, though he admires the 'Dis- 
 courses,' regards 'The Prince' as an infamous production, 
 though written, as he seems to think, not so much from 
 an utter recklessness of principle, as to display his genius 
 in politics, and gratify the vanity of excelling all others 
 in teaching that art* 
 
 Let us now advert to some of those who have spoken fa- 
 vourably both of the design of the author, and the tenden- 
 cy of the work. It must be conceded that those who lived 
 with, and intimately knew Machiavel, entertained no doubt 
 as to his republican opinions, or that his works were 
 designed by him to display, not what a prince ought to 
 do, but what he frequently practises. The celebrated 
 Harrington, that famous advocate of liberty, appears to have 
 cherished no doubt on this subject. When unexpectedly 
 summoned to the Tower on a charge of seditious practices, 
 
 v Litt. Dial, of the Dead, dial, xii, page 90.
 
 418 OF THE FORMS OF GOVERNMENT. [Lect. IX. 
 
 and of too much freedom in his writings, he justifies him- 
 self by the examples of Aristotle, Plato, Livy and Machi- 
 avel, all of whom, and especially the last, he regards as 
 friendly to the civil and political liberties of man.* Of 
 the same opinion was Albericus Gentilis, who considered 
 both the design and tendency of the work to be satirical. t 
 And Lord Bacon in his treatise 'De Augmentis Scientia- 
 rum,' observes that, 'A serious and prudent description of 
 the crimes and artifices of men is to be considered one of 
 the greatest bulwarks of virtue and probity. We are hence 
 beholden to Machiavel and such writers, who openly and 
 unmaskedly relate what men do in fact, and not what they 
 ought to do.'i § 
 
 In that learned, witty and able essay of Allen's, entitled 
 'Killing no Murder,' addressed by him to his Highness 
 Oliver Cromwell, the enlightened author shows, on several 
 occasions, his belief that Machiavel was the friend of the 
 people. || The same opinion is entertained by the learned 
 Wicquefort, who, conscious of the prejudice against Ma- 
 chiavel in the minds of some, especially in catholic coun- 
 tries, remarks that 'people will, perhaps, be scandalized 
 when I say that all the works of Nicholas Machiavel may 
 be of mighty use to the ambassador. I do not pretend 
 to apologize for the Florentine politician, for I must own 
 there are some passages in him that are not very orthodox: 
 
 * Harr. works, xxx. 
 
 f De Legat. lib. 3, cap. 9; Fame. Mach. vol. 1, 482, 490. 
 
 | 1 Shaws' Bacon, 191. 
 
 § 'Verum tractatio hujus de quo loquimur argumenti, gravis et prudens, 
 atque cum intcgritate quadam et sinceritate conjuncta, inter munitissima 
 virtutis ac probitatis propugnacula videtur enumeranda.' 
 
 'Est itaque quod gratias agamus Machiavello et hujusmodi scriptoribus, 
 qui apcrte et indissimulanter proferunt quid homines facere soleant, non 
 quod debeant.' — De Aug. Sci. lib. 7, ch. 2. 7 vol. Bac. works, 361. 
 
 || Harl. Mis. vol. 9, 290 &c.
 
 Lecl. FX.] OF THE FORMS OF GOVERNMENT. 419 
 
 but then I shall not scruple to maintain that there are some 
 which are capable of a much more favourable explication 
 than what is commonly given them by pedants. We must 
 suppose him, almost every where, to say what princes do, 
 and not what they ought to do; and if he sometimes min- 
 gles maxims that seem inconsistent with the rules of the 
 christian religion, it is to show the practice of usurpers 
 and tyrants, and not how lawful princes ought to behave 
 themselves.'* In the Harleian Miscellany we also find 
 an essay entitled 'Vindication of that Hero of Political 
 Learning, Nicholas Machiavel.' It is written by one 
 James Boevy, and bears date 1692. The author remarks, 
 among other things, as follows. 'Nicholas Machiavel is 
 cried down a villain, though many think he deserves a bet- 
 ter title.' — 'One who intends to express a dishonest man, 
 calls him a Machiavelian.' — 'If any can pretend a just 
 quarrel with Machiavel, they are kings.' — 'If the lives of 
 Lewis XI. or XIV. were examined, it would be found 
 they acted more ill than Machiavel wrote, or, for aught 
 is known, ever thought: yet the first has had wisdom 
 inscribed on his tomb, and the last is cried up for a 
 great statesman.' — 'Machiavel having to make a gramm.v: 
 for the understanding of tyrannical government, is not to 
 be blamed for setting down the general rules in it.' — 'He 
 was of an honourable family, born at Florence, and the 
 writer hereof being at Florence about the year 1642, made 
 what inquiry he could after his reputation, and found that 
 he left a good name behind him, as a pious, charitable, sin- 
 cere, good man as any in that city.'t The opinion of 
 Rousseau on this point is entitled to great respect. He 
 remarks that 'Machiavel, under the pretence of instructing 
 sovereigns, gives important lessons to the people. His 
 Prince is the manual of republicans. His connexion with 
 
 • Ambassador, book I, chap. 7, page 53. 
 1Harl. Miscel. vol. 10,183.
 
 420 OF THE FORMS OF GOVERNMENT. [Lect. IX- 
 
 the house of Medici obliged him, during the oppression 
 of his country, to conceal his love of liberty. The choice 
 of his execrable hero sufficiently evinces his secret design; 
 and the opposition of the maxims in his Discourses on 
 Livy, and in his History of Florence, to those in his 
 Prince, proves that this profound politician has hitherto 
 had only superficial or corrupt readers. The court of 
 Rome has strictly proscribed his works; yes, indeed, be- 
 cause it is described in them too truly.'* Boccalini, though 
 a firm catholic, has taken side with the friends of the great 
 Florentine, and boldly says that he has copied his politics 
 from the administration and actual practices of many 
 popes. In vindicating Machiavel, he supposes him before 
 the tribunal of Apollo, and puts into his mouth a speech 
 replete with satirical severity, calling on the tribunal to 
 allow him the privilege of mentioning the names of 
 princes from whose common practice he had but deduced 
 all the maxims and political rules set forth in his work; 
 and pledging himself to a cheerful submission to any pun- 
 ishment, if it should then appear that his condemned pre- 
 cepts are new, and of his own coining. That it is against 
 reason and justice that the inventors of these diabolical 
 practices should be esteemed holy and venerable, when he, 
 who hath merely divulged them, is condemned as infa- 
 mous. That if the original is sacred, the mere copy can- 
 not be worthy of the flames, and finally, that if he is to 
 be persecuted, then must the reading of all history be for- 
 bidden, as that must surely convert readers into so many 
 Machiavels, especially if it be studied by them as poli- 
 ticians. 
 
 To the foregoing opinions, of high authority, favourable 
 to the reputation of Machiavel, we shall add that -of a very 
 sensible writer of our own country, who thus eloquently 
 
 * Rousseau's Social Contract, book 3, chap. 6, page 206, and note.
 
 Lect. l\.\ OF THE FORMS OF GOVERNMENT. 421 
 
 vindicates the fame of this author, whose writings he is 
 reviewing. 'Is it credible that one who had made it the 
 labour of his life, and no idle life, to support a republic; 
 who had connected with that form of government his for- 
 tune and his reputation; who had fallen with it, and had 
 hazarded his life for its reestablishment; should, without 
 any apparent aim of interest or ambition, become the open 
 advocate of tyranny; and that, after this, he should still be 
 courted by the friends of liberty as an associate and a con- 
 fidant, and still persecuted by its adversaries as an enemy? 
 -Is it credible that a man who was forming a complete and 
 elegant representation of the peculiar excellencies of po- 
 pular government, which he might expect to endure as a 
 lasting memorial of his genius, should at the same time, 
 without a hope or a motive, unravel by night the beautiful 
 tissue that he was weaving by day? Is it credible that 
 one whose talents, and political sagacity, and knowledge of 
 human nature are universally admired, should compose in 
 favour of despotism, a treatise which has in fact been more 
 injurious to it than any other work ever written? Is it 
 credible that the same individual should commit all these 
 absurdities in times of civil discord, and yet not even the 
 watchfulness of party spirit once accuse him of inconsis- 
 tency? But if we suppose that it was the object of Ma- 
 chiavel to make such a description of tyranny as should 
 excite resistance rather than submission, the riddle of his 
 life is solved; his writings, his conduct, the conduct of his 
 friends, and that of his enemies, are all consistent and in- 
 telligible.'* 
 
 We doubt not that enough has been said to redeem the 
 fair fame of this eminent political writer. We are entirely 
 satisfied, from a careful examination of his Prince, and his 
 Discourses on Livy, that they are valuable to all who desire 
 
 •North American Review, Sep. 1817, vol. 5, 363.
 
 422 OF THE FORMS OF GOVERNMENT. [Lect. IX. 
 
 to become acquainted with the artifices of crafty and wick- 
 ed politicians, that they may the better guard their liber- 
 tics against their insidious plans. They are valuable to 
 those who would cherish a lively jealousy of their political 
 rights, and know from history the human heart, when 
 guided by the lust of power, or unrestrained by constitu- 
 tional barriers. In the works of this master politician 
 they will find that the author, in instructing his New 
 Prince, intends that he shall be guided by maxims the re- 
 verse of those which are stated and illustrated; and that 
 he should be warned by Uie examples given of the disas- 
 trous fate which so often attended despots. That this is 
 the designed and actual moral, is clearly apparent from the 
 destiny of his heroes, especially the infamous Caesar Bor- 
 gia, whose misfortunes and end were precisely what should 
 always be the fate of those whose lives arc marked by op- 
 pression, perfidy and crime. This mode of instruction, 
 though novel, is, we think, peculiarly happy. It speaks of 
 the maxims and conduct of despotic princes, points out by 
 precept and example all that is cruel and base in such 
 rulers, and, with the gravity of true irony, recommends 
 what the most wicked of the human race would blush to 
 own as the rule of their conduct. It is quite possible, 
 however, that this work may prove injurious to some 
 minds; and we confess there is much of plain good sense 
 in the reas ining of Frederick, in his 'Examen du Prince,' 
 and especially in his preface to that work. But we cannot 
 help thinking he has gone a little too far in his augury as 
 to the certainty of its pernicious effects, and can by no 
 means agree with him in his unqualified condemnation of 
 the motives of its author. All, however, must admit that 
 if the Prince be regarded in a serious, and not a satirical 
 light; if it be really what, on its outward face, it appears 
 to be; it is, beyond question, the basest, the most unblush- 
 ing, and the most diabolical production which ever came
 
 Lect. IX.] OF THE FORMS OF GOVERNMENT. 423 
 
 from the pen of man. On the other hand, the work once 
 established as merely satirical, the gravity of the irony can 
 no longer be the source of mistake or mischief, but must 
 heighten the intended effect. We should not have dwelt 
 thus pertinaciously on such a point, had we not felt at 
 heart that the reputation of an author of genius and worth 
 should never be a matter of indifference; that every one 
 has an interest in it, whether he be author, or reader only. 
 And as those are the greatest benefactors or curses to 
 humanity, whose writings, when dictated by genius, shall 
 be found to be guided either by the spirit of good, or by 
 the spirit of evil, it is but common justice, if prejudice or 
 errour has sullied the reputation of the former, to remove 
 the blot, though it has subsisted for centuries. The obliga- 
 tion is incalculably heightened, when the writings are those 
 of Machiavel. I need no further apology for having dwelt 
 so long on this topic. 
 
 Let us now take a brief notice of his works, and his 
 leading doctrines as to the forms of government, and the 
 political state. His writings are 1. The History of Florence, 
 in eight books. 2. The Prince. 3. The Life of Castruc- 
 cio Castracani, of Lucca. 4. A Narrative of the methods 
 taken by Csesar Borgia to despatch Vitellozzo Vitelli, Oli- 
 verotto da Fermo, Paolo Ursini, and the Duke of Gravina. 
 5. A Sketch of the Affairs and Constitution of France. 6. 
 A sketch of the Affairs and Constitution of Germany. 7. 
 Political Discourses upon the first Decade of Livy. 8. 
 The Art of War. 9. A Discourse upon the means of re- 
 forming the Government of Florence. 10. Letters on 
 Matters of State. The whole of these have been trans- 
 lated into nearly all the languages of Europe. Fame- 
 worth's English translation is in two quarto volumes, and 
 is accompanied by a translation of the King of Prussia's 
 'Examen du Prince,' together with copious notes, pre-
 
 424 OF THE FORMS OF GOVERNMENT. [Lect. IX. 
 
 faces &c. illustrative of all that has been written by Ma- 
 chiavel. 
 
 In regard to his division of the forms of government, 
 and his doctrines in political philosophy, we shall be very 
 brief, as they are spread over too extensive a surface to ad- 
 mit of even a concise analysis. His views of government 
 will be found in his two great works, the Prince, and the 
 Discourses on Livy. In the former he treats of Princi- 
 palities; in the latter, of Republics; which two forms are 
 the simple and only divisions which he has made. Prin- 
 cipalities are treated by him under two cardinal divisions; 
 viz. first, Hereditary in a family which has long possessed 
 them; secondly, Newly Acquired, which may be wholly and 
 absolutely new, or annexed as appendages to the dominions 
 of the prince who acquires them. The object of 'The 
 Prince' is to speak of each of these Principalities, in all 
 their divisions and subdivisions; and to point out the means 
 of sustaining them, or rather the modes in which they have 
 usually in fact been acquired and maintained. The chief 
 design, however, is to instruct those who have newly ac- 
 quired dominions, either by usurpation or by conquest. 
 
 The maxims and examples set forth as the rule of con- 
 duct of a New Prince, are such as only fiends could dare to 
 recommend to beings of a like nature. They inculcate, 
 without the least disguise, a craft the most refined, a perfidy 
 and oppression without any limitation but that of policy. 
 A few of these maxims for princely instruction, which 
 we shall state in substance, will unfold the character of a 
 work either unparalleled in wickedness and effrontery, 
 or unequalled in keen satire. 
 
 1. One should either keep upon good terms with others, 
 or crush them utterly, when once provoked; for if the 
 injury that you do them be slight, you leave them in a 
 capacity to return it; but if it be done to the purpose. 
 their power to harm you is gone. So that, when a man
 
 Lect. IX.] OP THE FORMS OF GOVERNMENT. 425 
 
 resolves to injure another, he should do it in such a man- 
 ner as cuts off all possibility of retaliation. 
 
 2. A prince who contributes to the advancement of ano- 
 ther, is the cause of his own diminution; for he who has 
 been thus advanced, will ever grow jealous, and at last sus- 
 picious of that power to which he owes his exaltation. 
 
 3. The new prince ought to extinguish the whole fa- 
 mily of him who reigned before the acquisition. 
 
 4. A conqueror should establish his residence in his 
 new dominions, if he would make his possession secure; 
 or he should establish several colonies in his new domi- 
 nions, if they be not annexed to the old one. 
 
 5. A prince should gain the confidence of the neigh- 
 bouring petty states; protect them against one another; 
 then sow discord among them, so that he may be enabled 
 to exalt or depress which of them he pleases. 
 
 6. Newly conquered states, who formerly enjoyed liber- 
 ty and their own laws, can be secured only in three ways: 
 first, by destroying or ruining them; secondly, by their new 
 master residing in person among them; and thirdly, by 
 letting them enjoy their former laws, but upon condition 
 of their paying tribute, and having a council of their own 
 citizens (appointed by the prince) who shall be responsible 
 for all that is due to him. 
 
 7. Men are fickle and inconstant. It is therefore ne- 
 cessary to be in a condition to make them believe by force, 
 when they will no longer believe of themselves. 
 
 8. Whoever imagines that the merit of new obligations 
 will extinguish the resentment of former injuries and dis- 
 gusts among great men, will find himself, at last, egre- 
 giously mistaken. 
 
 9. Whoever would secure himself in a new principality, 
 against the attempts of enemies, and finds it necessary to 
 gain friends, to surmount obstacles either by force or fraud, 
 to make himself beloved and feared by his people, respect- 
 
 54
 
 426 OF THE FORMS OF GOVERNMENT. [Lect. IX. 
 
 ed and obeyed by the soldiery, to extinguish all such as 
 can, or may oppose his designs, to abolish old laws and cus- 
 toms, to introduce new ones in their room, to be severe, 
 grateful, liberal and magnanimous, to disband an army 
 which he cannot trust, and such like; he cannot have a bet- 
 ter model than the Duke Valentine. 
 
 10. The prince should give himself wholly up to war- 
 like occupations, more assiduously, too, in time of peace 
 than in war. This should be done by continually employ- 
 ing his bodily and intellectual faculties. He should ac- 
 custom himself to hunting, and to minutely exploring the 
 country; and he should enlarge his mind by a careful 
 study of history, and, above all, should ever' have before 
 his eye, as a model for imitation, some renowned ge- 
 neral. 
 
 11. It is absolutely necessary for a prince who would 
 support himself, to learn not to be good sometimes, and 
 to make use of that knowledge upon occasion, and as the 
 exigency of his affairs may require. 
 
 12. If it is not possible for a prince to avoid those vices 
 which are called infamous, it is not worth his while to trou- 
 ble his head about it, nor to embarrass himself in endea- 
 vouring to escape the scandal of those vices, without which 
 he could not support his state. 
 
 13. Is it better for a prince to be loved, or feared? One 
 would desire to be both; but since that is difficult to be 
 accomplished, it is safer to be feared. 
 
 14. If a prince be at the head of a numerous army, he 
 must make little account of being thought cruel: for if he 
 has not that character among his soldiers, they will never 
 be kept in due order, nor be fit to be led to any enter- 
 prise. 
 
 15. A prince ought to know how to resemble a beast as 
 well as a man, upon occasion.
 
 Lect. lX.'j OF THE FORMS OF GOVERNMENT. 427 
 
 16. It is not necessary for him to be actually possessed of 
 all the good qualities before mentioned; but highly so, that 
 he should have the appearance of them. 
 
 17. All men are wicked and faithless, and will not keep 
 their engagements with you. You, therefore, are not 
 obliged to keep yours with them. 
 
 18. Those who know how to dissemble, will always find 
 simple people to practise upon. 
 
 These maxims might be greatly increased, but they are 
 sufficient to show the keen and deep satire of the work; a 
 conclusion which a careful perusal of the entire work will 
 be apt to confirm. 
 
 Machiavel not only well knew the infamy of Borgia's 
 character, but was acquainted with his disastrous end, long 
 before the 'Prince' was written. He had previously de- 
 clared his unfavourable opinion of that menster; and in 
 various parts of the work under examination, he mentions 
 his acts, and states him to be a model, in terms which can- 
 not be misunderstood; they are manifestly ironical. We 
 think the weight of authority, also, is on the side we 
 have espoused. And as to the singular notion of Stewart 
 and Sismondi, that the 'Prince' was written without any 
 fixed design, but through melancholy, there are no inter- 
 nal or external evidences of that fact. 
 
 Having, we fear, dwelt too long on our remarks on 
 Machiavel, we proceed to speak, 
 
 2dly. Of Harrington. This eminent political writer 
 was born in the year 1611. During the differences be- 
 tween Charles and his parliament, Harrington had to strug- 
 gle between his affection for the king, who had been uni- 
 formly kind to him, and his republican principles, which 
 inclined him to the parliament. He took, however, no 
 active part in the civil wars, and after Charles's misfor- 
 tunes, his commiseration for his fate was such as to occa- 
 sion his dismissal from office. He was too honest, too sen-
 
 428 ok THE FORMS OF GOVERNMENT. [Lect. IX. 
 
 sible, and knew too well the nature of political and civil 
 liberty, to repose much confidence in Cromwell. During 
 the Protectorate he retired, for a time, from public view, 
 and engaged himself in the composition of the Oceana, a 
 work on which his fame has chiefly reposed. Though no 
 friend to Cromwell, he was a zealous advocate of ra- 
 tional liberty; and for the propagation of his republi- 
 can principles, he instituted the famous debating society 
 called the Rota, which met every night to discuss ques- 
 tions, with the view chiefly of trying the public feeling on 
 various political points, at that time of great moment. 'In 
 this society/ says Anthony Wood, 'their discourses about 
 government, and of ordering a commonwealth, were the 
 most ingenious and smart that ever were heard; for the ar- 
 guments in parliament were flat to those. They had a bal- 
 loting box, and thus voted how things should be carried, 
 by way of essay, which not being used or known in Eng- 
 land before this, the room was every night very full.'* 
 
 A favourite doctrine of this society was rotation in of- 
 fice, effected by ballot, which, though it was popular, the 
 parliament was generally unfriendly to. One of the mem- 
 bers of the Rota proposed this to the house, and argued that 
 unless parliament should embrace that species of govern- 
 ment, it must be ruined. Wood says that 'the model of 
 it was, that the third part of the house should vote out, by 
 ballot, every year, and not be capable of reelection for 
 three years; so that every ninth year the parliament would 
 be wholly altered. No magistrate, also, was to continue 
 above three years, and all were to be chosen by ballot; 
 than which nothing could be invented more fair, as it was 
 then thought, though opposed by many for several reasons. 
 This club of commonwealth's-men lasted until February, 
 1659, at which time the secluded members being restored 
 by General Monk, all their models vanished."!"' 
 
 * Harr. Works, 25. f Ibid, 26.
 
 Lect. IX.] OF THE FORMS OF GOVERNMENT. 429 
 
 At the Restoration, Harrington entirely secluded him- 
 self. He was, however, brought from his retirement and 
 studies in 1661, and committed to the Tower on a charge of 
 treasonable practices. His defence, though triumphant, was 
 not followed by restoration to liberty ; his imprisonment was 
 long and severe; which, added to ill health, and the igno- 
 rant prescriptions of his physician, occasioned mental de- 
 rangement, which terminated in death, a very short time 
 after his release. 
 
 All of Harrington's works are political, and treat large- 
 ly of the forms of government, and the philosophy of the 
 political state. Those of his productions which have at- 
 tracted most notice, after his Oceana, are the following: 
 
 1. 'The Art of Governing.' It is divided into three 
 books. The author treats, in the first book, of the founda- 
 tions and superstructures of every known species ©f govern- 
 ment; of the origin of property, whence arises empire; 
 how the balance of empire is created and regulated; of the 
 generation of popular government, and of governments 
 against the balance, as tyranny, oligarchy, ochlocracy. 
 He then speaks of empire, as the result of an over-balance 
 of property, and shows how the form of government is 
 produced by the proportion which this over-balance of pro- 
 perty bears to that which remains in the hands of the go- 
 verned. He holds that if one man against the people, has 
 the balance of land in his favour, three to one, he becomes 
 an absolute monarch. If this over-balance be in a few, or 
 in one and a few, an aristocracy, or a regulated monarchy 
 will be generated; and if the people have this preponder- 
 ance of property, or if neither one nor a few have it, this 
 will give rise to a popular form of government. The learn- 
 ed author then proceeds to consider the variations of this 
 balance in England, from its earliest history to his own day, 
 and the fixation of this balance, that is of the Agrarian sys- 
 tem. This book is concluded with an account of the po-
 
 430 OF THE FORMS OF GOVERNMENT. [Lect. IX. 
 
 licy and fundamental principles of many of the govern- 
 ments that have existed. 
 
 In the second book of this treatise, Harrington speaks 
 of the commonwealth of Israel, and shows that this species 
 of government was known prior to that of Israel. In the 
 last book, he gives the theory or outline of a popular go- 
 vernment, and considers the civil, religious, military and 
 provincial branches of a supposed popular government. 
 
 2. 'The Prerogative of Popular Government' is his 
 next treatise worthy our notice. This is divided into two 
 books. The first consists of a reply to certain objections 
 which had been made to his Oceana. These he considers 
 under twelve heads. The topicks are as follows: 
 
 1. Whether the art and the forms of government, which 
 he calls Prudence, be rightly distinguished into ancient 
 and modern. 
 
 2. Whether a commonwealth be correctly defined to be 
 a government of laws, and not of men; and monarchy a 
 government of some man, or a few men, and not of laws. 
 
 3. Whether the balance of property in land be the na- 
 tural cause of empire. 
 
 4. Whether the balance of empire be correctly divided 
 into national and provincial. 
 
 5. Whether men have a common right or interest, dis- 
 tinct from the parts taken severally, and how, under go- 
 vernments, this may be distinguished from private interest. 
 
 6. Whether the Senatus Consulta, or Decrees of the 
 Roman senate, had the force of laws. 
 
 7. Whether the Mosaic law were obligatory merely 
 from the command of God, or became so by the consent 
 or vote of the people of Israel. That God was the Chi- 
 rotonized, or chosen ruler of the people. That Chiroto- 
 nia is an election by the suffrage of the many, and Chiro- 
 thesia a similar choice by a few; and that the Chirotonia 
 among the Jews, was changed to the Chirothesia.
 
 Lect. IX.] OF THE FORMS OF GOVERNMENT. 431 
 
 8. Whether a perfect commonwealth be not a perfect 
 form of government. He defines such a government to be 
 one established upon an equal agrarian; and arising into 
 three orders, viz. the senate debating and proposing; the 
 people resolving; and the magistracy executing; accompa- 
 nied with a rotation, through the Chirotonia, or suffrage 
 of the people given by ballot. 
 
 9. Whether a monarchy, perfect in its kind, does not 
 fall short of a perfect polity. On this point, he contends 
 that there are only two kinds of monarchy, one by arms, 
 the other by a nobility: that the inherent infirmity of the 
 former is, that those in arms, whom he calls the Janizaries, 
 will have frequent interest, and perpetual power, to raise 
 seditions, and destroy the magistracy: and that the like in- 
 herent vice of a nobility is, that they possess the frequent 
 intejrest, and perpetual ability, by their retainers and te- 
 nants, to excite seditions, and levy wars. Whence he 
 concludes that monarchy, reaching even its utmost perfec- 
 tion, is not a perfect form, but that it must ever have dan- 
 gerous flaws in it. 
 
 10. Whether a commonwealth has ever been conquered 
 by the arms of any monarch, except where the people 
 have proved faithless to themselves. This question he 
 resolves with much confidence, and an equal display of 
 learning, and concludes that a commonwealth is a govern- 
 ment which, from the beginning of the world to the pre- 
 sent day, hath never been conquered by any monarch: for, 
 says he, if the commonwealths of Greece came under the 
 yoke of the kings of Macedon, they were first broken by 
 themselves. 
 
 11. Whether an agrarian law, or some one of that na- 
 ture, be not essential in every commonwealth; and whether 
 this law, as set forth in Oceana, is not equal and satisfactory 
 to every interest in the state. On this subject he displays 
 much learning and ingenuity, and would be read with
 
 432 OP THE FORMS OF GOVERNMENT. [Lect. IX. 
 
 pleasure and advantage, did he not convey them in a style 
 worse than any that can well be conceived. 
 
 12. And lastly, whether rotation in office be essential to 
 a well regulated commonwealth. In this inquiry, the go- 
 vernments of Israel, Athens and Venice are examined by 
 him with great minuteness; and, as he conceives, they jus- 
 tify the principle of rotation, as it is established in Oceana. 
 
 The second book of this work is divided into five chap- 
 ters, the subjects of which are rather curious than practi- 
 cal. He institutes a learned research into the true import 
 of Chirotonia and Chirot/iesia, and shows how the former 
 is deduced from popular government, and the latter from 
 monarchy and aristocracy; and that most of the cities of 
 Asia Minor were under a popular form of government. 
 
 3d. 'Valerius and Publicola' is another work of this 
 writer, to which we desire briefly to advert. This js a 
 somewhat spirited dialogue on the true form of- a popu- 
 lar government. Harrington's most favourite doctrines, 
 found in his other works, are here brought into review. 
 The style is more easy than in the productions we have 
 noted, and the dialogue is, we think, decidedly more in- 
 structive than many to be found in the works of the Divine 
 Plato. 
 
 4th. 'Aphorisms.' These are among the most valuable 
 of his works: they contain, in short and well expressed 
 sentences, the substance of nearly all that he has written. 
 They are embraced in two treatises; one under the name 
 of 'A System of Politicks delineated in Short and Easy 
 Aphorisms;' the other under the simple title of 'Political 
 Aphorisms.' 
 
 There are two other works of this distinguished friend 
 of liberty, which we shall merely name, though they have 
 considerable merit. We allude to his 'Seven Models of a 
 Commonwealth,' and the 'Rota, or a Model of a Free 
 State.'
 
 Lect. 1X.J OF THE FORMS OF &OVERNMEN'i'. 43.1 
 
 I fear that I have trespassed too long on the patience 
 of the class, without having accomplished my main de- 
 sign, which is to speak with some minuteness of his most 
 celebrated treatise, to which I now proceed. 
 
 5th. 'The Commonwealth of Oceana.' This is a spe- 
 cies of poliiical romance, in imitation of Plato's Critias, 
 or Atlanticus. It exhibits an ideal republic, somewhat af- 
 ter the manner of the imaginary republics of Hippodamus, 
 of Plato, and of others among the ancients; and of the 
 Utopia of Sir Thomas More. 
 
 We propose to give a brief analysis of the entire work, 
 stating its leading doctrines, so that the industrious student 
 may have a foretaste of a production of which every scholar 
 in political science, especially in this country, should be 
 ashamed to confess himself ignorant. It must be admit- 
 ted, however, that an outline of it may prove necessary, 
 as its style and arrangement are uninviting, and some 
 of its topics ill suited to the taste of the present day. 
 Oceana is divided into four parts, viz. 
 
 1. 'The Preliminary.' This is itself divided into two 
 parts. These preliminary discourses state the principles, 
 origin and operation of every species of known govern- 
 ment, be it simple or mixed, pure or corrupt. 
 
 The 'First Preliminary' treats more particularly of those 
 forms of polity which existed prior to the establishment of 
 the Roman empire. The origin of empire, as it flows 
 from the preponderance of landed property, whether in 
 particular orders, or parts of a community; the operation 
 of the Licinian or Agrarian laws; the election to office by 
 the ballot of the people; the principle of rotation in office; 
 and the comparative merits and defects of the various 
 schemes of polity; are all treated with great learning, and 
 with more perspicuity than usually belongs to the produc- 
 tions of this writer. 
 
 5.5
 
 434 OF THE FORMS OF GOVERNMENT. [Lect. IX. 
 
 The 'Second Preliminary' speaks of the principles of 
 modern governments; that is, of those which arose after 
 the fall of the Roman empire. The various Gothic con- 
 stitutions are then examined, and the government of Eng- 
 land under the Romans, Saxons, Danes and Normans, 
 down to the decapitation of Charles I., is advantageously 
 set forth. In this discourse we also find a masterly history 
 of the origin of feuds, and of the feudal tenures; of the 
 distinctions of ranks, and the several kinds of nobility. It 
 concludes with displaying the causes of the dissolution of 
 the Norman monarchy under the first Charles, and the 
 generation of that light of liberty which, ever since that 
 memorable revolution, has continued to shine with in- 
 creasing lustre, and more expansive rays. 
 
 2. 'The Council of Legislators. The second part of 
 Oceana has this title. In this division of the treatise we 
 have a concise account of the mode in which the common- 
 wealth of Oceana was formed, and of the personages to 
 whom the reorganization of its constitution was entrusted. 
 We are informed that this new polity was the result of the 
 deliberations of nine legislators, who are introduced to us 
 under feigned names. They are stated to be intimately 
 acquainted with the merits and defects of the several go- 
 vernments which they are sent to represent in the Council. 
 The commonwealths thus represented are the nine follow- 
 ing, viz. 1. Israel, 2. Athens, 3. Sparta, 4. Carthage, 5. 
 Achaia, ^Gtolia and Lycia, 6. Rome, 7. Venice, 8. Swit- 
 zerland, 9. Holland. This council of august legislators is 
 opened by one who is called Lord Archon. In the ora- 
 tion spoken by him on that occasion, he urges the necessity 
 of discarding all fancy and speculation in the great work 
 in which they were then to be engaged, and of resorting to 
 the archives of ancient polities, that they might thence ob- 
 tain all requisite wisdom. These councillors having pre- 
 pared seriatim ct scpuratim their views of the several
 
 Lect. IX. | OF THE FORMS OF GOVERNMENT. 435 
 
 governments assigned to them for consideration, they were 
 all read to the people by a committee of twelve persons 
 selected by lot, which committee was called the Council of 
 Prytans. The people were then at liberty to present to 
 the Prytans their own suggestions on the views thus sub- 
 mitted to them. The council of Prytans convened in the 
 Pantheon, whilst the Grand Council of Legislators sat in the 
 palace called Alma. The Prytans continued in session du- 
 ring several months, whilst all objections against the mo- 
 del of the new government were argued before them. 
 The Council of Legislators also continued in session, without 
 any disturbance from the people, the Prytans constantly 
 informing the legislators of the people's views. All mat- 
 ters of interest being thus commented on, first by the peo- 
 ple, then by the Council of Prytans, and lastly by the Legis- 
 lative Council, that council, after much deliberation, ex- 
 tracted from the entire subject what they deemed excel- 
 lent and practical, and thus was formed the model or new 
 constitution of the commonwealth of Oceana, a polity de- 
 signed by its framers to be immortal, as it was supposed to 
 be as perfect as human means could effect, from the com- 
 bined wisdom of all ancient and modern prudence, finish- 
 ed and embellished by the cautious reflections of the several 
 councils, on their own, and the people's suggestions. 
 
 3. 'The Model or Constitution' is then given, and is, of 
 course, the chief object of the work, the two preceding 
 parts being preliminary information as to forms of govern- 
 ment previously known, and as to the mode in which the 
 constitution of Oceana came to be remodelled. A full 
 analysis of this constitution would lead us into too much 
 detail: all that we shall therefore aim at, is to present you 
 with such an outline of this important division of the work, 
 as will enable you to understand at least the great features of 
 the government, and to read the whole treatise with more
 
 4.'36 OF THE FORMS OF GOVERNMENT. [Lect. IX. 
 
 facility and pleasure than those do who take it up without 
 any previous knowledge of its plan. 
 
 The Constitution consists of thirty Articles, which are 
 called Orders, to each of which is appended an explanatory 
 discourse, and occasionally an appropriate speech, de- 
 livered either by the supreme legislator, the lord Archon, 
 under the name of Olphaus Megnletor, or by some of the 
 other members of the council of legislators. These ora- 
 tions are generally very learned, sometimes eloquent, and 
 the whole form a continued commentary on the more im- 
 portant doctrines of the constitution. 
 
 These articles contain a system of government which, as 
 we said before, it will not be in our power fully to unfold to 
 you, as every order contains some important regulation or 
 principle. The people are divided into various classes, as 
 into Freemen, Servants, Elders, Youth, Horsemen, Foot- 
 men &c. this latter class being formed of those having an 
 annual income to a certain amount. The people are further 
 divided in reference to locality, or their place of habita- 
 tion, which creates Parishes, Hundreds, Tribes &c. &c. 
 Those who have been legally declared Prodigals, are ex- 
 cluded from all office, and also from the right of suffrage. 
 Provisions are then made for the mode of elections, for the 
 establishment of a national religion, and full liberty of 
 conscience; for the raising of armies; defence by militia; 
 the encouragement and regulation of trade; the maritime 
 defence; for education in law, physic, divinity, agricul- 
 ture, polite learning, and, generally, for instruction in 
 all human learning and wisdom. Provisions are also made 
 for the regulation and purity of the drama; the manage- 
 ment of all civil and military concerns; the salaries and 
 expenses of government; the well ordering of state pa- 
 geantry; the police of the Emporium, or chief city; the 
 mode of enacting laws, of promulgating and enforcing 
 them; and finally, for all matters which relate to a well po-
 
 Lect. IX.J OP THE FORMS OF GOVERNMENT. 437 
 
 liced community. Throughout the whole, the doctrine is 
 inculcated, that a commonwealth or democratic form of 
 government does by no means exclude degrees or distinc- 
 tions of rank, and that a nobility and gentry are perfectly 
 consistent with the purest and best secured liberty: for, 
 says Harrington, 'an army may as well consist of soldiers 
 without officers, or officers without soldiers, as a common- 
 wealth, especially a great one, consist of a people without 
 a gentry, or a gentry without a people-' 
 
 We have already mentioned that this singular production 
 is a political romanes. The author's design is to present a 
 form of government for his own country England, Ireland 
 and Scotland, and likewise a plan of police for the regula- 
 tion of the greal emporium, London and Westminster: but 
 the whole is done under fictitious names of persons and 
 places. We give those names, as they will be found to 
 occur frequently in the work; this will enable the student 
 to read it with a more correct idea of its fictitious plan. 
 Adoxus, ... King John. 
 
 Alma, St. James' Palace* 
 
 Convallium, - Hampton Court. 
 
 Coraunus, - - King Henry VIII. 
 
 Dicotome, ... Richard II. 
 
 Emporium, ... London. 
 
 Halcionea, ... The Thames. 
 
 Halo, .... White Hall. 
 
 Hemesica, - - The Trent. 
 
 Hiera, ... The City of Westminster. 
 
 Leviathan, ... Thomas Hobbes. 
 
 Marpesia, ... Scotland. 
 
 Morpheus, - - - James I. 
 
 Mount Celia, - - Windsor. 
 
 Neustrians, - - - The Normans. 
 
 Olphaus Megaletor, Lord > 0Hyer Cromwell> 
 Archon, 3
 
 438 OF THE FORMS OF GOVERNMENT. [Le'ct. IX. 
 
 Panopcea, - - - Ireland. 
 
 ie on, - Westminster Hall. 
 
 Panurgus, - - - Henry VII. 
 Parthenia, - - - Queen Elizabeth. 
 
 Scandians, - - - The Danes. 
 
 Teutons, - - - The Saxons. 
 
 Turbo, ... - William the Conqueror. 
 Verulamius, - - - Lord Bacon. 
 
 4. The last division of the work is called 'The Corol- 
 lary,' in which are stated the general salutary consequences 
 which may be anticipated from the adoption of the new 
 constitution. These are described as highly advantageous, 
 and picture to us a people moral, intelligent, powerful, 
 prosperous and happy: 
 
 This celebrated work had enemies to contend with, even 
 before it was ushered to light; and when given to the 
 world, many exertions were made, by essays and other 
 means, to bring it and its able author into disrepute. These 
 however, as is ever the case with works of great merit, 
 had only a contrary effect; the publick were forced to an 
 acquaintance with its sound doctrines, its learning and in- 
 genuity. 
 
 When the book was in the press, some of Cromwell's 
 courtiers seized it, and resisted all his importunities for 
 its return. The disconsolate author then applied to lady 
 Claypole, the Protector's favourite daughter. The part 
 which Harrington acted on this occasion, and the lady's 
 deportment, are thus stated by his biographer. 
 
 'Being led into her antichamber, he sent in his name, 
 with his humble request that she would admit him to her 
 presence. While he attended in the anti-room, some of 
 the lady's women coming in, were followed by her little 
 daughter, about three years old, who staid with him. He 
 entertained the child so divertingly, that she suffered him 
 to take her up in his arms till her mother came; where-
 
 Lect. IX.J OF THE FORMS OF GOVERNMENT. 133 
 
 upon he, stepping towards her, and setting the child down 
 at her mother's feet, said, madam, 'tis well you are come at 
 this nick of time, or I had certainly stolen this pretty lit- 
 tle lady. Stolen her! replied the mother, pray what to do 
 with her? She is too young to be your mistress. Madam, 
 said the author, though her charms assure her of a more 
 considerable conquest, yet I confess it is not love, but re- 
 venge, that prompted me to commit this theft. Lord! an- 
 swered the lady again, what injury have I done that you 
 should steal my child? None at all, said he, but that you 
 might be induced to prevail with your father to do me jus- 
 tice by restoring my child, that he hath stolen. But she, 
 urging that this was impossible, as her father had children 
 enough of his own, he told her at last that it was the issue 
 of his brain, which being misrepresented to the Protector, 
 had been taken out of the press by his order. The lady 
 immediately promised to procure it for him, if it contained 
 nothing prejudicial to her father's government; and he as- 
 sured her it was only a kind of political romance, so far 
 from any treason against her father, that he hoped she 
 would acquaint him that he designed to dedicate the work 
 to him, and promised that she herself should be presented 
 with one of the first copies. The lady was so well pleased 
 with his manner of address, that she had his book speedily 
 returned to him, and he did accordingly inscribe it to Oli- 
 ver Cromwell, who, after the perusal of it, said the gen- 
 tleman had like to trepan him out of his power; but that 
 what he had gotten by the sword, he would not quit for a 
 little paper shot, adding, in his usual cant, that he approved 
 the government of a single person as little as any of them; 
 but that he was forced to take upon him the office of 
 high constable, to preserve the peace among the several 
 parties in the nation, since, he said, being left to them- 
 selves, they would never agree to any certain form of 
 government, and would only spend their whole power in
 
 440 OF THE FORMS OF GOVERNMENT. [Lect. IX 
 
 defeating the designs, or in destroying the persons, of one 
 another.'* 
 
 Harrington's 'Oceana,' and his 'Political Aphorisms' 
 were strongly instrumental in laying the foundation of that 
 fabric of liberty which has been partly raised in England, 
 and which has been nearly completed, and will, we trust, 
 be embellished, in this country. We know of no writer, an- 
 cient or modern, who was a more able or zealous champion 
 of the political and civil rights of man, than Harrington. 
 His works, especially those just mentioned, should there- 
 fore be attentively read by American lawyers and states- 
 men. They teem with those salutary doctrines of rational 
 libert}r, which so eminently mark the genius of our go- 
 vernment. Very many subsequent authors and politicians 
 have been greatly indebted to him, without any direct ac- 
 knowledgment of their obligations. We shall conclude 
 our remarks on this political writer, with citing the only 
 notice which Mr Hume has seen fit to bestow on him. 
 'Harrington's Oceana,' says he, 'was well adapted to that 
 age, when the plans of imaginary republics were the daily 
 subject of debate and conversation; and even in our time, 
 it is justly admired as a work of genius and invention. 
 The idea, however, of a perfect and immortal common- 
 wealth will always be found as chimerical as that of a 
 perfect and immortal man. The style of this author wants 
 ease and fluency; but the good matter which the work 
 contains, makes compensation. 't 
 
 3d. Of Sidney. Algernon Sidney was of the popular 
 party, in the troubles between king Charles I. and his par- 
 liament. A warm friend to liberty, though untainted with 
 enthusiasm, he partook of the republican views of the par- 
 liament, and from his hostility to Cromwell, no less than 
 to the exiled family, appears to have been an honest advo- 
 
 * Han. Works, 16. f Hume's Mist. Eng. vol. 6, SrfS.
 
 Lect. IX. OF THE FORMS OF GOVERNMENT. 441 
 
 cate of the people's rights, and of that form of polity 
 which was best adapted to secure them. He is said to 
 have taken Brutus for his model; yet he did not pusli his 
 imitation so far as to sit in trial among the judges who con- 
 demned his sovereign to the scaffold. Sidney was exe- 
 cuted in 16S3, for his concern in the Rye-house plot, but 
 on grounds so illegal, that his attainder was reversed in the 
 reign of William and Mary. One ground of accusation 
 against him was, the finding in his closet those Discourses 
 on Government which now rank him so high among writers 
 on politics and legislation; and which by some have been 
 thought to be of such singular merit as fully to compensate 
 for the loss of the six books of Cicero De Republican 
 These Discourses, in less factious and more liberal times, 
 about 169S and 1704, were given to the world, and were 
 at one time much read. They manifest considerable learn- 
 ing, sound judgment, and liberal principles; and were the 
 style more agreeable, they would be still read with much 
 pleasure and advantage, notwithstanding subsequent au- 
 thors, profiting much by these discourses, as also by the 
 works of Harrington, Milton and others, have given to 
 the world productions of a more polished form, and in 
 which have also been displayed those vast improvements 
 in political science which mark the period since the days 
 of Algernon Sidney. 
 
 Hume, when relating the trial of this martyr to liberty, 
 remarks of his Discourses on Government, that 'he had 
 maintained principles favourable indeed to liberty, but such 
 as the best and most dutiful subjects in all ages have been 
 known to embrace, viz. the Original Contract, the source 
 of power from a consent of the people, the lawfulness 
 of resisting tyrants, the preference of liberty to the go- 
 vernment of a single person. '* To us these doctrines may 
 
 * Hume's Kng. vol. 1, 165.
 
 442 OF THE FORMS OF ©OVBRNMENT. [Lect. IX 
 
 well seem extraordinary grounds for impeaching a man of 
 hostility to subordination and regular government. But Sid- 
 ney lived in a despotic age, when vice and cruelty were 
 permitted to minister in the temples of justice; he had 
 the misfortune to live in times when his exertions for liber- 
 ty made him the more obnoxious to persecution from 
 the parasites of the throne; when the infamous Jeffreys 
 was allowed to sit in judgment; and when to deny the 
 divine right of kings, and the necessity of passive obedi- 
 ence in subjects, was little else than rank treason, meriting 
 nothing better than a mock trial and certain death. 
 
 Bishop Burnet gives us a character of Sidney which in 
 part accounts for the peculiar odium in which he was held 
 by a people having such crude notions of liberty. 'This 
 strong republican,' says he, 'was a man of extraordinary 
 courage, steady even to obstinacy; sincere, but of a tem- 
 per that could not bear contradiction; a christian in prin- 
 ciple, but averse to all public worship; and an enemy to 
 every thing that looked like a monarchy.'* 
 
 The following observations on Sidney's Discourses occur 
 in a letter from John Adams to Thomas Jefferson. 'I 
 have lately undertaken to read Algernon Sidney on Go- 
 vernment. There is a great difference in reading a book 
 at four-and-twenty, and at eighty. As often as I have read 
 it, and turned it over, it excites fresh admiration that this 
 work has excited so little interest in the literary world. 
 There ought now to be published in America as splendid 
 an edition of it as the art of printing can produce, as well 
 for the intrinsic merit of the work, as for the proof it brings 
 of the bitter sufferings of the advocates of liberty, from 
 that time to this; and to show the slow progress of moral, 
 philosophical and political illumination in the world.' 
 
 We entirely concur in the sentiments of the venerable 
 writer. The intervening period, however, has not been 
 * Burnet's <">wn Timrs
 
 Leet. IX. J OF THE FORMS OF GOVERNMENT. 44.3 
 
 slow in the progress of moral and political illumination. 
 On the contrary, the seeds disseminated in the works of 
 Sidney, Harrington, and others of those times, have been 
 wonderfully prolific; and more has been done to improve 
 the political and moral condition of man, during the cen- 
 tury which has elapsed since these discourses were given 
 to the world, than was effected in all preceding ages. 
 
 Sidney was sixty-six years of age when he lost his life 
 in the assertion of his darling liberty. 
 
 4th. Of Montesquieu. The fame of Montesquieu as 
 a political philosopher, is founded chiefly on the well 
 known 'Spirit of Laws,' and 'The Cause of the Grandeur and 
 Decline of the Romans,' the latter of which, if inferior in 
 variety of thought and knowledge, excels the former in 
 the closeness and logic of its reasoning. Few works, 
 however, in any age or nation, have contributed more 
 abundantly to the fame of their authors, than the 'Spirit of 
 Laws.' And, with the exception perhaps of Aristotle, no 
 writer, ancient or modern, has entered so deeply into the 
 spirit and genius of government and law, or been so well 
 entitled to the distinguished appellation of the 'Legislator 
 of the Human Race, and the Prince of Philosophical Po- 
 liticians.' 
 
 In collecting information for his great work, Montes- 
 quieu visited the greater part of Europe, and published it 
 in 1748. It is the offspring of no less than twenty years' 
 reflection and diligent elaboration; and, as its illustrious 
 author says, should not be judged of by a few hours' read- 
 ing. 
 
 Criticism on so celebrated a production is perhaps un- 
 necessary; it has survived the censure of his enemies, po- 
 litical and literary, and ranks him among the most emi- 
 nent benefactors of moral and political science. We are 
 sensible that the opinion now expressed of the great merit 
 of this production, is not entertained by all, even of the
 
 
 444 OF THK FORMS OF GOVERN-UK NT. [L*Cl. IX 
 
 present day. He, like his great predecessor Aristotle, has 
 at all times had enemies to his fame, no less distinguished 
 for their zeal than were his friends. He has been, indeed, 
 much praised, but not a little censured. That there are 
 faults in that work, both in doctrine and style, cannot be 
 denied: for what human production is exempt from either? 
 But as long as genius is sublime, as long as learning and 
 philosophy have a just influence, must the 'Spirit of Laws' 
 be regarded as eminent among the productions of genius. 
 The censurers of this work have, in many instances no 
 doubt, been sincere in their criticism; but it is equally 
 true that some of the severity of animadversion has sprung 
 from party prejudice, from zeal in the support of a dif- 
 ferent theory, and from a fault-finding spirit, too common 
 with many, who are sometimes contented with an epheme- 
 ral reputation derived from opposition, however feeble, to 
 the opinions of great masters in science. 
 
 In citing, however, the following remarks from an in- 
 telligent writer, we by no means desire to apply to his cri- 
 ticism the motives we have just mentioned, though we differ 
 from him in many points. 'We confess,' says the critic, 
 'if we may venture for once to place our own judgment in 
 opposition to the general voice, that we have not been able 
 to discover in the 'Spirit of Laws' all the merit that is com- 
 monly attributed to it. We are inclined to think that it is 
 more praised than read, and more read than understood; 
 and that, instead of making the reputation of its author, it 
 depends upon his great name for a part of its own popu- 
 larity. Montesquieu was a writer of the highest standing 
 when this work was published; and a great work from a 
 distinguished writer is commonly received with approba- 
 tion. When we examine it nearly, we perceive a mass of 
 detached observations, but find it almost impossible to dis- 
 cover the plan that connects them together. We meet oc- 
 casionally with fine thoughts and eloquent passages, but
 
 Lftct. IX.] OF THE FORMS OF GOVERNMENT. 445 
 
 we seek in vain for the great truths which it is the object 
 of so extensive a work to establish. The book is fatiguing 
 to read, and we rise from it without any precise or definite 
 instruction. The correctness of the distinction taken at 
 the commencement, between the principles of different 
 governments, is extremely questionable; and a considera- 
 ble part of the differences of situation to which the author 
 attributes the varieties of laws, are consequences, instead 
 of being the causes, of this variety. The chapters on the 
 British constitution, which are among the remarkable pas- 
 sages of the work, contain a theory entirely superficial, 
 and not defended at present by good authorities. The 
 Spirit of Laws, like the Prince of Machiavel, though in a 
 less degree, has been, from the time of its publication, re- 
 garded by many of the best judges as a sort of enigma. 
 Voltaire, who had the art of accommodating his remarks 
 to his audience, observed in publick, 'that the human race 
 lost their title deeds, but that Montesquieu had found and 
 restored them;' a splendid, though not a very definite en- 
 comium. But in the confidence of private conversation, 
 he remarked to the Prince de Ligne, that the Spirit of 
 Laws was a work above his comprehension. Professor 
 Stewart, in his late Essay on the Progress of the Moral 
 Sciences, has resorted, for the purpose of explaining the 
 object of this work, to a supposition similar to that which 
 has been often made in regard to Machiavel's Prince. He 
 considers it as intended, in part, to attack established 
 abuses in a covert way, by tracing them to vicious princi- 
 ples.'* 
 
 It is not my object to vindicate, by any minuteness of 
 criticism, this great work of the immortal Montesquieu. I 
 may observe, however, that if this work has been 'praised 
 more than it has been read or understood,' it has not, we 
 
 •North American Review, April, 1821.
 
 446 OF THE FORMS OF GOVERNMENT. [Lect. IX. 
 
 think, been owing to any intrinsic obscurity in it, but 
 to the deep thought which has distilled, as it were, a vast 
 science, and presented its elements in the form of senten- 
 tious aphorisms. Much research and anxious thought 
 having been exercised in its execution, it is nowise sur- 
 prising that this work should require more than ordinary 
 care in its perusal. Those who think deeply, sometimes 
 express themselves with obscurity: this may occasionally 
 be a fault in this great work; but, as a whole, it is compre- 
 hensible, and highly instructive. Voltaire's remark was 
 probably intended more as a jeu d'esprit, than as a delibe- 
 rate opinion. In regard to the doctrine which refers the 
 various forms of government to certain principles of action, 
 it is sufficient to observe that, when understood in the sense 
 of Montesquieu, the weight of reasoning and authority is 
 decidedly with him: not, indeed, that a monarchy, aris- 
 tocracy, democracy &c. cannot be conducted on a different 
 principle from the one ordinarily assigned to it, but that 
 these governments respectively are more apt to be directed 
 by the one principle than the other. It must be admitted, 
 also, that the mere form of government is not that of 
 which Montesquieu is speaking, but the certain outward 
 form, manifested in its usual manner, and guided also by 
 that principle which seems, cseteris paribus, the best 
 adapted for its preservation. The form, and its usually at- 
 tendant principle of action, constitute, according to Mon- 
 tesquieu a defined species of government: but when differ- 
 ent principles are fully assumed, the government is no 
 longer identical, though the ostensible form may continue. 
 All, therefore, that is intended by this doctrine of the 
 learned writer, is that particular forms of government do 
 usually in fact conform to certain principles which are not 
 so apt to be the guide of action to other governments dif- 
 ferently constituted; and that these particular principles 
 'are better adapted to continue those particular forms of po-
 
 Lect. IX.] OF THE FORMS OF GOVERNMENT. 447 
 
 lity, than principles of a different nature. It appears to 
 us quite impossible to deny the doctrine, as thus under- 
 stood. All experience verifies its truth, and all a priori 
 reasoning confirms it. 
 
 We think, also, that it would detract but little from the 
 large fame of Montesquieu, did we even admit that his 
 views of the British government were in some degree er- 
 roneous. We apprehend, however, that this is not the 
 case, and that the 'present authorities' alluded to in the 
 remarks we have just quoted, have been greatly preju- 
 diced in their views of that government, or have derived 
 their opinions of it chiefly from the character which it has 
 manifested long since the Spirit of Laws was written. The 
 mixed form of the British constitution admits of an alter- 
 nate or occasional preponderance in its various principles; 
 so that it may assume the appearance of either of the sim- 
 ple forms, according to the paramount spirit of the times. 
 
 Let me now direct your attention to some very sensible 
 observations on Montesquieu by Mr Farneworth, the 
 learned translator of the works of Machiavel. Speaking 
 of the great authors of the Spirit of Laws and the Prince, 
 Mr Farneworth observes, 'As these two writers possess, 
 in my opinion, the highest station in the political scale, it 
 may be worth while to give a comparative sketch of their 
 different characters. Machiavel, born and bred in tumul- 
 tuous and profligate times, and occupied in the affairs of a 
 distempered republic, caught his first principles from what 
 he saw. Montesquieu, more happy in his birth and for- 
 tune, enjoying an early leisure, in a quiet and well regu- 
 lated monarchy, drew his first principles of politics from 
 what he read. Yet the former was not given up to mere 
 personal observation, nor the latter to mere study: in the 
 progress of life, Machiavel applied himself to books, and 
 Montesquieu to men; yet, as was natural, their first habits 
 prevailed, and gave to each his distinct and peculiar cha-
 
 448 OF THE FORMS OF GOVERNMENT. [Lect. IX. 
 
 racter. Hence, though both saw the internal and secret 
 springs of government, (which, in my opinion, no writer 
 but these two did ever fully comprehend or penetrate) 
 yet they saw them by different lights, and through differ- 
 ent mediums. Machiavel's leading guide was fact; Mon- 
 tesquieu's was philosophy. In consequence of this, sim- 
 plicity forms the character of one, refinement that of the 
 other. The speculative Frenchman forms a fine system, to 
 the completion of which he sometimes tortures both argu- 
 ment and fact; the plain and downright Florentine builds on 
 facts, independent of all systems. The polite and disin- 
 terested sage is warm in praise of honesty; the active and 
 penetrating secretary, above praise or censure, gives a 
 bold and striking picture of the ways of men. Hence, 
 whilst the first gains every heart by the force of moral 
 sympathy, the latter hath been unjustly detested as the 
 enemy of virtue and mankind. Machiavel is negligent, 
 yet pure and strong; scorning the minute graces of com- 
 position: Montesquieu is elegant, yet nervous; and to the 
 acuteness of the philosopher, often adds the fire of the 
 poet. Both were the friends of freedom and mankind; 
 both superior to the genius of their time and country; both 
 truly great: the Florentine severe and great; the French- 
 man great and amiable.'* 
 
 The late Dr Priestley makes the following observations 
 on Montesquieu. 'He is one of the most excellent of all 
 political writers,' says the doctor; 'but his lively manner of 
 expression is sometimes apt to lead his readers into mis- 
 takes, if they do not make use of some parts of his works 
 to explain others. Thus, it is too peremptory to say, as 
 he does, that the blood of Lucretia put an end to kingly 
 power at Rome; that a debtor appearing covered with 
 wounds, made a change in the form of the republic; that 
 
 * Farnrw. Work? of Machia. vol. 2, 13, not*
 
 Lect. IX.J OP THE FORMS OF GOVERNMENT. 449 
 
 the sight of Virginia put an end to the power of the de- 
 cemvirs; and that the sight of the robe and body of Caesar 
 enslaved Rome. This is certainly ascribing too much to 
 spectacles, without telling what was the reason why such 
 spectacles, in those particular circumstances, had so much 
 influence; for, as he himself excellently observes, if a par- 
 ticular event, as the loss of a battle, be the ruin of a state, 
 there must have been a more general reason why the loss 
 of a battle would ruin it.'* We confess there appears to 
 us little necessity for the objection thus urged by Dr 
 Priestley. Surely a writer, however minute and accurate 
 he may be, and little inclined to leave any thing to the in- 
 telligence of his readers, may occasionally use this strong 
 form of expression, without the risk of leading them 
 astray. What tyro in history or political philosoph)', 
 could possibly suppose that the sage Montesquieu intended 
 to acribe those great results to such insulated and insignifi- 
 cant causes? He presumed that his readers would be pos- 
 sessed of the ordinary facts of history, and consequently 
 speaks of proximate causes, of those last and finishing 
 causes, which, though often in themselves very trifling, set 
 all other antecedent causes into active operation. Was it 
 necessary to inform the reader of the Spirit of Laws, why 
 the blood of Lucretia excited the Roman people to ter- 
 minate kingly oppression; why a debtor, covered with 
 wounds, made the people sensible of their wrongs; why 
 the tyranny of the decemvirs appeared more odious when 
 Virginia was a victim of their power; or lastly, why the 
 exhibition of the robe and body of Caesar terminated in the 
 slavery of Rome? If all this be necessary, the task -of an 
 author would be onerous indeed. He can place no reliance 
 on the knowledge and intelligence of his readers, and must 
 never be content until he has traced up every fact, and tra- 
 
 * Priest. Lect. on Hist. 248. 
 57
 
 450 OF THE FORMS OF GOVERNMENT. [Lect. IX. 
 
 veiled through every link of the chain of causes remote 
 and proximate. This so far from being a fault, is often a 
 striking beauty. But to proceed. 
 
 Sir James Mackintosh, with his usual felicity of expres- 
 sion, has passed on this work a high eulogium, accompa- 
 nied, however, w,ith a little more of concession to the 
 Baron's censurers than we should be disposed to allow 
 them. 'Montesquieu has been, perhaps justly, charged with 
 abusing his advantages, by the undistinguishing adoption 
 of the narratives of travellers of every different degree of 
 accuracy and veracity. But if we reluctantly confess the 
 justness of this objection; if we are compelled to own 
 that he exaggerates the influence of climate; that he as- 
 cribes too much to the foresight and forming skill of legis- 
 lators, and far too little to time and circumstances, in the 
 growth of political constitutions; that the substantial cha- 
 racter, and essential differences of governments are often 
 lost and confounded in his technical language and arrange- 
 ment; that he often bends the free and irregular outline of 
 nature, to the imposing but fallacious geometrical regulari- 
 ty of system; that he has chosen a style of affected abrupt- 
 ness, sententiousness and vivacity, ill suited to the gravity 
 of his subject: after all these concessions, (for his fame is 
 large enough to spare many concessions) the Spirit of Laws 
 will still remain, not only one of the most solid and du- 
 rable monuments of the powers of the human mind, but 
 a striking evidence of the inestimable advantages which 
 political philosophy may receive from a wide survey of all 
 the various conditions of human society.'* 
 
 So. much has heen said by various writers as to the 
 merits and defects of the work under consideration, and 
 its errours, real and asserted, have been so fully commented 
 on, that students can be in no danger of imbibing them 
 
 ' Mack. Intro. Disc. 28.
 
 Lect. IX.] OF THE FORMS OF GOVERNMENT. 451 
 
 from the authority of a great name, or from the absence 
 of that criticism which awakens suspicion, and quickens the 
 judgment. While the Spirit of Laws, therefore, is read 
 by the student, the statesman, or general politician, with 
 the fullest assurance of deriving instruction and pleasure, 
 they will not be blind to its errours, nor be disposed to 
 listen only to the censures of its opponents. In conclu- 
 sion, we would remark that, although Montesquieu dis- 
 covers, and has, we think, pointed out, the principles of 
 preservation, destruction and compensation in most forms 
 of government, it can hardly be doubted that he was a 
 friend, if not to a pure republic, at least to a free form of 
 government. As a man of virtue himself, his declaring 
 virtue to be the characteristic principle of that species of 
 government, is sufficiently indicative, it rriay be supposed, 
 of his own preference; particularly as he well knew that 
 this is the principle the least arbitrary and factitious, the 
 most kindred to the mind, the likeliest to be shared by all 
 degrees of men, and therefore the most stable and enduring. 
 
 Montesquieu's division of government is very simple, 
 viz. into Despotism, Monarchy and Republic; the last of 
 which he subdivides into democratic republic, and aristo- 
 cratic republic. We shall hereafter have occasion to re- 
 mark on this classification. His opinion of a monarchy is 
 very delicately hinted. 'As a subject of one,' says he, 'I 
 beg that no one will take this amiss; but I venture to af- 
 firm that in a monarchy it is extremely difficult for the 
 people to be virtuous.' 
 
 Montesquieu was born in 1689, and died 1755, aged 
 sixty-six. 
 
 5th. Of Milton. While the poetical character of the 
 illustrious Milton has triumphantly vindicated the place 
 which his own anticipations led him to assign to it, his po- 
 litical life and opinions have been the subject of long and 
 shameful obloquy; an obloquy which, to the disgrace of
 
 452 OF THE FORMS OF GOVERNMENT. [Lect. IX. 
 
 letters, he owes in great part, in the present age, to the ill 
 concealed intolerance of the distinguished biographer of 
 the British Poets. Of late years, more justice has been 
 done both to the eloquence and sentiments of Milton's 
 prose works; the first lofty, rich and original; the last 
 animated by what seems to be a just love of liberty, and a 
 hatred of tyranny and intolerance in any shape. He be- 
 longs to that old school of British prose writers, who, na- 
 tural, imaginative and eloquent in the highest degree, and 
 with a style which, if somewhat pedantic, is perhaps 
 more interesting than the regular and balanced flow of mo- 
 dern periods, have had the fortune either to be much neg- 
 lected, or to lend their treasures to those who have omitted 
 to acknowledge the obligation. We on this side of the 
 Atlantic, who are destined to people these vast regions, and 
 to spread and give effect to those rays of liberty which 
 Harrington, Sidney, Milton, and a few others saw, and de- 
 sired to collect and concentrate to useful purpose; we, I 
 say, of all other people that have ever lived, are the most 
 bound to preserve the fair fame of these martyrs of free- 
 dom, and not only to cherish their principles, but to pro- 
 mote the study of their political works. In them are to 
 be found the seeds of that admirable system of rational li- 
 berty which we are now enjoying. 
 
 Milton lived in unhappy times, when principles true in 
 themselves were shocking to one party from their novelty, 
 and their hostility to their ancient privileges; and were 
 abused by another, whom experience had not taught pro- 
 perly to limit and modify them. But from all that can be 
 gathered amidst the venomous animosities of party, he 
 seems to have been the friend of liberty in church and 
 state, and to have had the love of his country deep at his 
 heart. There was no department of moral truth on which 
 he did not seek to shed information, from treatises for the 
 use of schools, up to expositions of the highest abuses in
 
 Lect. IX.] OP THE FORMS OP GOVERNMENT. 453 
 
 government. Thus we find a 'Tractate on Education/ a 
 'Treatise on Church Government,' his 'Iconaclastes,' 'A 
 Defence of the English People,' 'Reopagitica, or the Li- 
 berty of Unlicensed Printing,' a work, it has been said, 
 alone sufficient to embalm him in the memory of his coun- 
 try; 'Sketch of a Commonwealth,' 'A Treatise of True 
 Religion, Toleration, &c.' 'A Scheme of Logic,' and nu- 
 merous other works, most of which are extremely good, 
 and must have produced a considerable, though a gradual 
 and silent effect. 
 
 Milton was born in 1608, in the reign of James I. and 
 died in 1674, in that of Charles II. His character will 
 perhaps be best appreciated by those who recollect that 
 'mistaken notions and principles are perfectly compatible 
 with elevation and integrity of mind.' There may be 
 some apology necessary for the occasional intemperance 
 and errours of which Milton was guilty in his political life; 
 but the lovers of free government will rank him among 
 the most strenuous of its advocates, and of those writers 
 whose liberality and independence have paved the way to 
 its progress in later times. Let us now proceed to another 
 political writer. 
 
 6th. Op John Locke. He was one of the four princi- 
 pal philosophers of England, and was born near Bristol, 
 in 1632, in the reign of Charles I. It may not be unin- 
 teresting to know that the father of this distinguished 
 champion of constitutional government was himself a firm 
 assertor of liberty in another mode, being a captain in the 
 parliamentary army during the civil war. The writings 
 of Descartes are said to have first given Locke a relish 
 for the study of philosophy, though he did not mainly ap- 
 prove of the sentiments of the French philosopher. Locke 
 also devoted himself to the study of medicine, principally, 
 it is said, for the benefit of his own constitution, which 
 was weakly, but which he preserved to a tolerable age,
 
 454 OF THE FORMS OF GOVERNMENT. [Lect. IX 
 
 seventy-three, through the use of a water diet, and such 
 active exercise as an asthmatic complaint allowed him to 
 take. To his water diet he ascribed likewise the long re- 
 tention of his eye-sight; for to the last, he could read the 
 smallest print by candlelight without spectacles. This is 
 of such importance to those whose lives are to be devoted 
 to study, that I have deemed it worthy of notice even in 
 the very brief sketch of his life to which I am necessarily 
 limited. It is probable, however, that he was in reality 
 turned to the study of medicine, less by ( the reason which 
 has been assigned, than a love of all sorts of knowledge; a 
 disposition which led him, not only to the study of the hu- 
 man understanding, but of theology, political economy, 
 and the science of government, 
 
 In his works on this last subject, Locke displayed the 
 same unshackled and unprejudiced mind, and the same free 
 principles of inquiry, that have brought his name to the 
 present age, as a metaphysician and philosopher of the hu- 
 man mind. It was not till after the Revolution, namely in 
 1689, that he published his two Treatises on Government, 
 his principles and political friendships having previously 
 rendered him obnoxious to the government of James II. 
 in consequence of which he had retired to Holland. In 
 these treatises he vindicated the principles of the revolu- 
 tion of 16SS, and, as his biographer says, 'entirely over- 
 turned all the doctrines of slavery.' Shortly after this, 
 he published his 'Considerations on lowering the Interest, 
 and raising the Value of Money,' essays called forth by 
 the disorders arising from the practice of clipping the 
 coin, and an attempt by the government to raise its value 
 by publick authority. On this subject, which is now also 
 better understood, Locke went before his age, and confuted 
 the opposers of his doctrines, proving his acquaintance 
 with business, and the nature and principles of commerce, 
 as well as with the more subtile and abstract topicks of
 
 Lect IX.] OF THE FORMS OF GOVERNMENT. 455 
 
 metaphysicks. He was in much esteem with King Wil- 
 liam, who frequently conversed with him on public affairs. 
 He was the intimate also of Lord Ashley, afterwards the ce- 
 lebrated Earl of Shaftesbury, and the tutor of his grandson, 
 the famous author of the 'Characteristieks,' who always 
 acknowledged his obligations to Locke, though he has 
 spoken with much, and, we think, with just severity, of 
 some parts of his Essay on Human Understanding. 
 
 It is gratifying to find geniuses so powerful and original 
 as Locke and Milton and Harrington, engaged as advocates 
 of constitutional government. Yet such is the weakness 
 of human nature, and so liable are the most finely turned 
 geniuses to be biassed by the prejudices of their age or 
 condition, or by the peculiarity of their temperament, that 
 it must be confessed there is not much gained to the force 
 of truth by an appeal to authority. Milton, Locke and 
 Sidney could not see the whole truth, or, if they perceived 
 it, such were the prejudices of education, the force of habit, 
 and the control of self-interest, that their writings still 
 manifest some concessions to the friends of monarchy and 
 absolute power, which do not suit the genius of the repub- 
 lics of our own time. Harrington, however, may almost 
 be considered an exception to this remark. He was fear- 
 less and explicit, and, for the age in which he lived, his li- 
 beral doctrines are truly surprising. It is rather, there- 
 fore, to common consent, and the gradual diffusion of 
 sound thought, that we must look for the support of ra- 
 tional and liberal doctrines in regard to government. In- 
 dividual peculiarity may bias an individual judgment; but 
 the very differences of the many gradually settle into uni- 
 formity and certainty: A mortifying truth this to the ad- 
 mirers of genius, who are so little inclined to find imper- 
 fections in minds they have so much cause to delight in; 
 but necessary to be remembered, in our deference to au-
 
 456 OF THE FORMS OF GOVERNMENT. [Lect. IX. 
 
 thority, and in our estimate of opinion, if we would steer 
 clear of errour. 
 
 7th. Of Hume. This acute and ingenious philosopher 
 has written his own biography with a modesty very com- 
 mendable in one who speaks of himself. It is to be re- 
 gretted, however, that he did not furnish us with more 
 particulars of a life whose philosophical temperance and 
 regularity emulate those of ancient sages. Of such singu- 
 lar equanimity was this first of English historians, that we 
 cannot readily persuade ourselves that he had written with 
 partiality; and if the point be established against him, it is 
 a singular proof that the most phlegmatic temperament is 
 not a preservative against strong prejudices, and that he 
 who is without philosophical, may yet be influenced by 
 personal or party attachments. Hume was born at Edin- 
 burgh in 1711, and was intended for the law. His classi- 
 cal propensities soon diverted him from this enterprise, 
 and caused him also to quit in disgust a mercantile concern 
 which he had entered into at Bristol. He therefore re- 
 tired into France, and there he composed his 'Treatise of 
 Human Nature,' which was published in 1738, with very 
 little success. The first part of his Essays appeared four 
 years afterwards, and was rather more favourably received; 
 but his 'Political Discourses,' and his 'Inquiry Concerning 
 the Principles of Morals,' published in 1752, met with as 
 little notice as his first production, though he regarded 
 them as highly finished compositions. With similar dis- 
 regard was that portion of his history received, embracing 
 the period from the accession of the house of Stuart to the 
 death of Charles I. and which was published in 1754; nor 
 was it till the subsequent volume appeared, that it began to 
 engage the attention of the publick. Perhaps the history 
 of letters furnishes us with no instance, Milton's poem ex- 
 cepted, in which the first reception and subsequent re- 
 nown of works, have been so greatly contrasted.
 
 Lect. IX.] OF THK FORMS OF GOVERNMENT- 457 
 
 However attached Hume might have been to the tory 
 party in politics, we cannot set him down as an advocate 
 of arbitrary power, or even as unfriendly 10 republican 
 principles. The firmest attachment to liberty is certainly 
 not incompatible with an apologetic feeling for those whom 
 custom, and the possession of power, caused to look on arbi- 
 trary authority as their inheritance, and to oppose the pro- 
 gress of the age as unwarranted innovation. Such was 
 the light in which this able historian regarded the Stuarts ; 
 nor does his apology for them seem to me to go further 
 than to palliate their acts, by showing that they exerted 
 the same authority as their ancestors, and stood too firmly 
 on the basis of prescriptive authority, without sufficient re- 
 gard to the temper of the times, and the change of circum- 
 stances. Even able and virtuous men, the heirs of a long 
 exerted authority, may, in such circumstances, come into 
 very unhappy collision with the champions of liberal and 
 rational opinions; and seduced by the notion of legiti- 
 mate rule, fall behind the progress of the age, and thus 
 incur an odium which, in times less fertile of change, had 
 perhaps taken the form of admiration and love. We must 
 confess, for our own part, as we have elsewhere said, that 
 we cannot but believe with Hume, that regular and con- 
 stitutional liberty was in Britain the growth of a late age; 
 and that so far from having been diminished by the arbi- 
 trariness of the Stuarts, it was, in fact, only opposed by 
 them in its onward progress. We leave this, however, to 
 be settled by more diligent inquiries, our object in these 
 early lectures being rather to awaken inquiry, than fully to 
 satisfy doubts. The question here suggested is at present 
 engaging the literary inquisitiveness of the day. Hume 
 died in 1776, aged 65. 
 
 8th. Of Frederick II. Though Frederick is not to 
 be classed among the advocates of constitutional govern- 
 ment, he was, however, n wise prince, zealous of the hap- 
 58
 
 458 OF THE FORMS OF GOVERNMENT. [Lect. IX. 
 
 piness of his subjects. Of political liberty his notions 
 were, perhaps, those of an arbitrary king; but so far as 
 equal justice to all, toleration in religion, and ambition to 
 meliorate the condition of his subjects, compose civil liber- 
 ty, he may be considered as its friend. It was under him- 
 self and his father, that Prussia grew to the rank of a prin- 
 cipal kingdom in Europe, and attained, in spite of perpe- 
 tual wars, a great share of commerce, wealth and improve- 
 ment. Merit, therefore, he undoubtedly possessed; and 
 whether we attribute his zeal for the prosperity of his peo- 
 ple to benevolence, or to an ambition to make his resources 
 in war as great as possible through their strength, we must 
 allow him wisdom in the prosecution of his aim. He has 
 been accused, with some justice perhaps, of legislating too 
 much; wasting the means of his treasury in fostering 
 branches of industry foreign to the soil and climate, and 
 beyond the capacities of his people. But, with all his ar- 
 bitrary acts, his rash speculations, and his unwise intermed- 
 dling with the course of commerce; his wars, his literary 
 weaknesses and squabbles, and the hardness of temper im- 
 puted to him; few sovereigns have brought to the throne 
 so many admirable qualities for the wise and happy go- 
 vernment of their subjects. In such an administration as 
 Frederick's, is observable the difference between civil and 
 political liberty. His subjects were perhaps, to a consi- 
 derable degree, in the actual enjoyment of the first; but of 
 the last they had none whatever. No king could be more 
 despotic, though it must be allowed that his despotism 
 very generally took a benevolent direction. This monarch 
 wrote a Commentary on 'The Prince' of Machiavel, and as 
 he supposes that treatise to contain the real sentiments of 
 the author, he is not sparing in censure of that celebrated 
 production. As far as an author's works are evincive of 
 sincerity, Frederick has manifested in his Commentary the 
 utmost detestation of the arbitrar} and despotic doctrine*
 
 Lect. IX.] OF THE FORMS OF GOVERNMENT. 459 
 
 said to be inculcated in 'The Prince.' Voltaire wrote a pre- 
 face to the king's Commentary, in which he remarks, 
 that 'although Machiavelian principles were well refuted 
 in this treatise of the Prussian monarch, the world might 
 one day see a still better refutation of them in the history 
 of his life,' an augury which has not been very gratify- 
 ingly accomplished. 
 
 In conclusion, we would observe that some little confu- 
 sion exists in naming Frederick: by the English he is 
 often called Frederick III. by the Germans, always Frede- 
 rick II. The mistake of the English arises from con- 
 founding the Frederick-Williams with the Fredericks of 
 Prussia. Frederick the Great, of whom we are speaking, 
 is properly Frederick II. He was born in 1712, ascended 
 the throne in 1740, and died 1786, aged 75j after a life sin<- 
 gularly divided between unexampled military activity, the 
 cultivation of the civic arts, and literary leisure; of which 
 last he has left some monuments, destined perhaps to the 
 same perpetuity as his renown. 
 
 9th. Of Confucius, or Cong-Fu-Tze. This was one of 
 those extraordinary men whom virtue, and a kind of di- 
 rectness in moral feeling, seem to lead before their age, to 
 the discovery of truth. Confucius was born of a noble 
 family, at Champing in China, about 550 B. C. He seems 
 to have been the Socrates of the Chinese, and to have ap- 
 plied himself chiefly to moral philosophy, as reducible to 
 practice. He bewildered himself with no abstruse re- 
 searches into the essence of the first cause, or of the origin 
 of the world, and good and evil; but taught the existence 
 and reverence of a first cause, a pure and perfect essence, 
 the author of all things; and that his providence sees and 
 provides for us, and rewards virtue, and punishes vice. In 
 his books on morals, which have been translated into 
 French, is to be found that comprehensive maxim of morali- 
 ty, 'Love thy neighbour as thyself.' There was never a
 
 460 OF THE FORMS OF GOVERNMENT. | Lect. IX. 
 
 higher panegyric passed on man, than the promulgation of 
 this maxim of Confucius by the author of our holy religion, 
 as one half the theme of all the law and the prophets. 
 Another singular coincidence is, that Confucius, like Christ, 
 selected ten of his pupils, to whom he communicated fully 
 his knowledge and his precepts. 
 
 Many beautiful thoughts of Confucius are to be found in 
 Goldsmith's 'Citizen of the World.' The extraordinary 
 talents of Confucius early attracted the notice of his coun- 
 trymen: he was appointed, when very young, to the office 
 of minister of state. H:s maxims, moral, religious and 
 political, had a wonderful influence for a time; but such 
 was the force of habit, that the people relapsed into their 
 former irregularities. He then devoted himself to private 
 instruction in morals and the art of government. Not 
 being as successful in his teaching as he ardently desired, 
 he sickened with grief at the perverseness of the people. 
 He remarked, 'The kings will not follow my maxims; I 
 am no longer useful on earth; it is therefore time that I 
 quit it;' after which, it is recorded, he became affected by 
 a lethargy, of which he soon died. 
 
 More than twenty-three centuries have elapsed since the 
 death of this remarkable philosopher; yet such is the ve- 
 neration paid to his memory at the present day, that his 
 descendants have conferred on them the title of mandarins, 
 and, in common with princes of the blood, are exempted 
 from all taxes to the emperor. He died in the seventy- 
 third year of his age. 
 
 10th. Of Bolingbroke. Henry St. John, afterwards cre- 
 ated by Queen Anne Viscount Bolingbroke, was born in the 
 year 1672, at Battersea in Surrey, of an ancient and honour- 
 able family, which, if there be any merit in it, may be traced 
 beyond the conquest. His youth gave little indication of 
 future eminence; for though his genius and understanding 
 were acknowledged, his love of pleasure had the entire as-
 
 Lect. IX.] OF THE FORMS OF GOVERNMENT. 461 
 
 cendancy, and till his twenty-eighth year, he was only no- 
 torious for his profligacy, the effects of which, it must be 
 confessed, were somewhat visible throughout his life, and 
 gave a little of its colouring to most of his productions, 
 especially to those on morals. In the year 1700, he pro- 
 cured a seat in the House of Commons, and joining his 
 fortunes to those of the celebrated Harley, afterwards Earl 
 of Oxford, the head of the tory party, he was in 1704 
 appointed secretary at war. The whigs gaining the as- 
 cendancy a few years after, Bolingbroke resigned his office, 
 nor was he returned in the parliament of 1708. During 
 an interval, therefore, of more than two years, he engaged 
 in the severest study, and this recluse period he after- 
 wards considered as the most active and serviceable of his 
 whole life. In 1710, he was again chosen for parliament, 
 and the tory party prevailing once more, he was appointed 
 to the post of secretary of state, which he held during a 
 period of extreme turbulence, and with genius and assidu- 
 ity seldom united in such a degree. 
 
 It was at this period that he negotiated the celebrated 
 treaty of Utrecht, which has been the subject of so much 
 cavil. But Marlborough and the whigs finally prevailing, 
 and George I. succeeding to the throne, Bolingbroke fell 
 into disgrace, and being threatened with impeachment for 
 high treason, withdrew into France. Here he was, for a 
 short time, attached to the Pretender, having been previ- 
 ously attainted at home; but, by a singular fortune, becom- 
 ing obnoxious to both parties, he betook himself again to 
 retirement and study, and composed during his exile his 
 most celebrated works. 
 
 Bolingbroke is the author of many political writings, 
 distinguished by force, ease and elegance of style. Those 
 which rank him among writers of general politics, are his 
 'Spirit of Patriotism/ and the 'Idea of a Patriot King;' his 
 'Remarks on the History of England', and his 'Dissertation
 
 462 OF THE FORMS OF GOVERNMENT. [Led. IX. 
 
 on Parties.' His 'Letter to Sir William Wyndham' is a 
 masterpiece. Dr Goldsmith remarks that, as a political 
 writer, 'few can equal, and none can exceed Bolingbroke. 
 As he was a practical politician, his writings are less filled 
 with those speculative illusions which are the result of so- 
 litude and seclusion. They prevailed at the times in which 
 they were written, they still continue to be the admiration 
 of the present age, and will probably last for ever.'* 
 
 11th. Of the Authors of the Federalist. This 
 work is to Americans an interesting and highly valuable 
 exposition of the Constitution of the United States. I pre- 
 sume that you are well acquainted with the history and 
 character of its distinguished authors, Hamilton, Madison 
 and Jay. I shall, therefore, have but little to say of this 
 work. It was undertaken by them immediately after the 
 promulgation of the federal constitution, being, in fact, a 
 series of newspaper dissertations, designed to expound the 
 principles, and demonstrate the necessity, of the new go- 
 vernment of the nation. The labour chiefly devolved on 
 Alexander Hamilton, he being the author of sixty-four of 
 the papers; of the rest, three were written by Hamilton 
 and Madison jointly; fourteen by Madison alone, and five 
 by Jay. 
 
 It is seldom that the speculations of philosophers have 
 been so remarkably verified as those of the writers of the 
 Federalist. It is a fact very honourable to the authors of 
 this work, that their opinions of the proposed system, 
 founded on a priori reasoning, form an accurate commen- 
 tary on the practical operation of a scheme at that time but 
 just organized. 
 
 Mr Walsh, in a very sensible and interesting review of 
 the Federalist, remarks that, 'though written in a short 
 period, it wears the air of a finished production, and as a 
 
 * Golds. Works, vol. 4, 346.
 
 Lect. IX.] OF THE FORMS OF GOVERNMENT. 463 
 
 treatise on the science of politics, may claim a high rank 
 among the most profound and luminous which the literature 
 of any nation can boast. The literary efforts of the coali- 
 tion were eminently successful, and contributed in a sen- 
 sible degree to the final triumph of the constitution, by 
 force of the soundest reasoning.'* 
 
 The Federalist, we may add, should be studied by every 
 citizen of the republic, desirous of appreciating its institu- 
 tions and policy. This, together with the luminous and 
 very able opinions of the present chief justice of the 
 United States, on the many important questions of consti- 
 tutional law which, to the good fortune of his country, it 
 has been his part to decide on, forms an almost complete 
 commentary on every branch of the constitution under 
 which we live, and leaves little to be added by future judges 
 and commentators. 
 
 It is unnecessary to recal particulars of the lives of men 
 so familiar to American history, most of whom are your 
 contemporaries. Hamilton is, perhaps, the greatest and 
 most powerful genius of which this country has to boast. 
 His mind was at once strong and elegant, judicious and 
 comprehensive; and his superiority to all other men of his 
 nation was publickly recognized by the man at whose 
 hand the world has to deplore the loss of him. By some 
 it has been supposed that the chastity of style which dis- 
 tinguishes the state papers of Washington, was in some 
 degree the offspring of the touches of his friend and con- 
 fidant, Hamilton; and his papers in the Federalist are 
 certainly distinguished above those of his very able coad- 
 jutors, by strength, clearness and brilliancy. 
 
 Mr Madison, as a finished scholar, and a learned poli- 
 tician, was no doubt his superior; and in strength and 
 vigour of intellect, nearly his equal; but he was somewhat 
 
 • Vmcri< an Review, vol. '<■ No No. 1
 
 464 OF THE FORMS OF GOVERNMENT. [Lcct. IX 
 
 deficient in that practical wisdom and knowledge of the 
 world which so eminently marked the life of Hamilton. 
 
 12th. Of Jeremy Bentham. This writer, who has 
 made so much noise in our own day, was born in the year 
 1747. He completed his education at Westminster school, 
 and at Oxford, with much distinction, and he was called 
 early to the bar. Being the son of a very eminent solicitor, 
 and thus probably favoured with an early introduction to 
 business, and possessing, moreover, learning, extraordinary 
 talents, and indefatigable application, he might have had 
 the most complete success at the bar; and, 'could he have 
 persuaded himself to accommodate his political principles 
 to the wishes of those in power, the most splendid station 
 and the highest honours would have been infallibly within 
 his reach.'* It seems, however, that, careless of these ad- 
 vantages, Bentham soon relinquished his profession, and 
 devoted himself to the science of legislation, in which his 
 labours, during more than half a century, were unceasing, 
 and his publications numerous, and generally well received. 
 
 Bentham's favourite idea is, that the laws of all nations 
 may, by a process of logical severity, be reduced to their 
 first elements, and that the entire system may be digested, 
 and presented in the form of a written code, so as entirely 
 to abolish judicial legislation, and perhaps nearly to ex- 
 clude judicial interpretation. This scheme has taken the 
 name of codification, and has been much applauded by 
 some, and equally ridiculed by others. 
 
 A true citizen of the world, Bentham has offered his 
 services to various nations in the formation of a code, and 
 has explained his principles in various tracts. He ten- 
 dered his aid to the National Assembly of France, at the 
 beginning of the Revolution, and wrote on their judicial 
 establishments, their colonies, and the mode of conducting 
 
 ■ Edinburgh Review, Nov. IS1".
 
 Lect. IX OF THE FORMS OF GOVERNMENT. 465 
 
 the proceedings of the assembly itself, or, as he termed it, 
 its Tactics. He had the same desire in regard to Poland, 
 and in his own country he has availed himself of every 
 occasion to suggest improvements in its policy and laws: 
 thus, he has given his views on the statutes of usury; on 
 the taxes on law proceedings; on the projected reform of 
 the judicial establishments of Scotland; on penal labour; 
 on penal colonization. His greater works are, an 'Intro- 
 duction to the Principles of Morals and Legislation;' a 
 'Treatise on Civil and Penal Legislation;' 'Theorie des 
 Peines et des Recompenses;' 'Fragment on Government,' 
 being a critique on some passages in Blackstone's Commen- 
 taries; 'Panopticon,' being a treatise exhibiting new views 
 as to the construction of buildings for the confinement of 
 persons of any description who are to be kept under in- 
 spection, such as penitentiary-houses, mad-houses, lazaret- 
 toes, hospitals, poor-houses &c. ; 'Chrestomathia,' being a 
 treatise explanatory of a school for the higher branches of 
 learning, &c &c. ; 'Introduction to the Rationale of Evi- 
 dence;' 'Church of Englandism;' and 'Elements of the Art 
 of Packing Special Juries.' His works amount to about 
 forty volumes, of various sizes. 
 
 Besides these various efforts and labours, he endeavoured 
 to make himself useful to two nations of very opposite 
 characters, but who united in neglecting his offers. He 
 addressed himself, in 1814, to the emperor Alexander, 
 offering to form a code, an object which has in some degree 
 occupied the Russian sovereigns ever since the year 1700. 
 The emperor's reply to Mr Bentham did not correspond 
 to his views, so that he declined making any further pro- 
 position to his majesty on the subject. This, we think, is 
 much to be regretted, as it is impossible to doubt that 
 much good would have resulted from Mr Bentham's la- 
 bours. Impressed with the evils of our unwritten law, as 
 far as it is based on the English common law, and also the 
 59
 
 466 OF THE FORMS OF GOVERNMENT. [Lect. IX 
 
 imperfections of our statute law, Mr Bentham, as early as 
 October 1811, addressed a letter to president Madison, 
 containing a similar offer, viz. to reform and codify our 
 laws. Five years after, the president acknowledged the re- 
 ceipt of this letter, but informed him that it was not within 
 the scope of his functions to accept the offer. The repub- 
 lic of Geneva, however, appointed Mr Dumont, his disci- 
 ple and translator, to prepare for them a penal code. What 
 progress has been made in this enterprise, we have not yet 
 learned. 
 
 The character of Bentham has been variously estimated 
 by friends and foes. It must be conceded on all hands, 
 that he has been a zealous propagator of his philosophy, 
 and has laboured in what he conceived to be the cause of 
 morals and sound government, with an utter disregard of 
 ordinary emolument. His admirers predict that, whatever 
 may be his success with his contemporaries, to remote 
 ages and uncivilized nations he will be a teacher and a 
 legislator. Bv others he has been ridiculed as an enthu- 
 siast and a visionary. Nothing, indeed, can exceed the 
 reproaches which have been thrown on him by the govern- 
 ment party in Great Britain, which, however, may argue 
 but little against him. How much of this reproach arises 
 from his intemperance in party politics; how much from 
 his exaggerations of the corruption and profligacy of the 
 times, and of pubiick men and professions; how much 
 from the acknowledged pedantry and involution of his 
 style, it is difficult to estimate with any exactness. He 
 certainly possesses the learning and wisdom, but wants the 
 temper of a philosopher; and we cannot but think that it 
 was a visionary expectation, that any foreign nation would 
 entrust to a stranger the formation of a code which was to 
 affect their lives, their liberties, and their property; to di- 
 rect the procedure of their courts, re-fashion their laws, 
 and influence all their habits and institutions. A rejection
 
 Lect. IX.] OF THE FORMS OF GOVERNMENT 467 
 
 of such a proposition would have been anticipated by a 
 sober judgment. Still we highly respect Mr Bentham's 
 motives, and truly believe that he has done some good, and 
 could have accomplished much more had he better known 
 how to offer his services, and had those to whom they 
 were tendered, better known how and to what extent to 
 receive them. The truth is, that this philosopher has al- 
 ready met the fate of many who have been pioneers in 
 schemes of improvement. The world receives their la- 
 bours, and beholds their zeal with cold ingratitude, whilst, 
 at the same time, many of their valuable ideas are adopted, 
 and variously fashioned, often without the least acknow- 
 ledgment, and sometimes even with reproaches against 
 them for being closet philosophers, and mere visionaries, 
 meditating 'in nook monastic' on matters of the greatest 
 practical interest to the world. 
 
 We shall close our remarks on this interesting writer on 
 legislation, with a portrait of his character, as it has been 
 drawn by one of his recent biographers. The anonymous 
 author of 'The Spirit of the Age' thus speaks of him: 'Mr 
 Bentham is very much among philosophers what La Fon- 
 taine was among poets: in general habits, and in all but his 
 professional pursuits, a mere child. He has lived for the 
 last forty years in a house in Westminster, overlooking 
 the park, like an anchorite in his cell, reducing law to a 
 system, and the mind of man to a machine. He scarcely 
 ever goes out, and sees very little company. The favour- 
 ed few who have the privilege of the entr&e., are always 
 admitted one by one. He does not like to have witnesses 
 to his conversation. He talks a great deal, and listens to 
 nothing but facts. When any one calls upOn him, he in- 
 vites them to take a turn round his garden with him, and 
 thus you may see the lively old gentleman, his mind still 
 buoyant with thought, and with the prospect of futurity, in 
 eager conversation with some opposition-member, some
 
 468 OK THE FORMS OF GOVERNMENT. ;Lect. IX 
 
 expatriated patriot, or transatlantic adventurer, urging the 
 extinction of close boroughs, or planning a code of laws for 
 some 'lone island in the watery waste,' his walk almost 
 amounting to a run, his tongue keeping pace with it in 
 shrill, cluttering accents, negligent of his person, his dress, 
 and his manner, intent only on his grand theme, Utility; 
 or pausing, perhaps, for want of breath, and with lack- 
 lustre eye, to point out to the stranger a stone in the wall 
 at the end of his garden, 'Inscribed to the Prince of Poets/ 
 which marks the house where Milton formerly lived, &c.' 
 The author then proceed:: 'There is something not altoge- 
 ther dissimilar between Mr Bentham's appearance, and the 
 portraits of Milton; the same silvery tone, a few dishevel- 
 led hairs, a peevish yet puritanical expression, an irritable 
 temperament, corrected by habit and discipline. Or, in 
 modern times, he is something between Franklin and 
 Charles Fox, with the comfortable double chin, and sleek 
 thriving look of the one, and the quivering lip, the restless 
 eye, and animated acuteness of the other. His eye is 
 quick and lively; but it glances not from object to object, 
 but from thought to thought. He is evidently a man occu- 
 pied with some train of fine and inward association. He 
 regards the people about him no more than the flies of a 
 summer. He meditates the coming age. He hears and 
 sees only what suits his purpose, or some 'foregone con- 
 clusion;' and looks out for facts and passing occurrences, 
 in order to put them into his logical machinery, and grind 
 them into the dust and powder of some subtle theory, as 
 the miller looks out for grist to his mill. Add to this phy- 
 siognomical sketch the minor points of costume, the open 
 shirt collar, the single-breasted coat, the old fashioned half- 
 boots, and ribbed stockings; and you will find in Mr Ben- 
 tham's general appearance, a singular mixture of boyish 
 simplicity, and of the venerableness of age. In a word, 
 our celebrated jurist presents a striking illustration of the
 
 Lect. IX.j OF THE FORMS OF GOVERNMENT. 469 
 
 difference between the philosophical and the regal look; 
 that is, between the merely abstracted, and the merely per- 
 sonal. There is a lack-a-daisical bonhommie about his 
 whole aspect, none of the fierceness of pride or power; 
 an unconscious neglect of his own person, instead of a 
 stately assumption of superiority; a good-humoured, pla- 
 cid intelligence, instead of a lynx-eyed watchfulness, as if 
 it wished to make others its prey, or was afraid they might 
 turn and rend him. He is a beneficent spirit, prying into 
 the universe, not lording it over it; a thoughtful spectator 
 of the scenes of life, or ruminator on the fate of mankind, 
 not a painted pageant, a stupid idol set up on its pedestal 
 of pride, for men to fall down and worship with idiot fear, 
 and wonder at the thing themselves have made, and which, 
 without that fear and wonder, would in itself be nothing. ' 
 The foregoing graphic description has perhaps a little 
 too much colouring; but, on the whole, it is no doubt a 
 faithful portrait. It is extremely natural to take a lively 
 interest even in the personal appearance and domestic 
 manners of one who has been so long and so much spoken 
 of as the philanthropic and learned, the highly talented 
 and eccentric Mr Bentham. The length of the foregoing 
 extract will therefore be pardoned. 
 
 13th. Of Napoleon. The emperor of the French seems 
 destined to attract the wonder of mankind, in whatever 
 aspect he be regarded. It seems a little irreconcileable to 
 those political prejudices which our relations to -France 
 during his reign have engendered in some Americans, to 
 view as the modern Justinian, a man long odious to us by 
 numerous infractions of the conceived law of nations. He 
 claims the title of legislator, however, with more reason 
 than Justinian himself, since the code which bears his 
 name was not only his project, but, in fact, the subject of 
 his own consideration and patient revision, and owes to 
 him many of its most liberal and judicious principles.
 
 470 OF THE FORMS OF GOVERNMENT. [Lect IX 
 
 The Code Napoleon is destined, we think, to bear him far 
 beyond those conquerors to whom his unsurpassed milita- 
 ry genius had already more than equalled him; and infi- 
 nitely beyond those narrow-minded cotemporary princes 
 who have stigmatized him as only a military adventurer, 
 and a daring usurper. In the natural progress of events, 
 they must become wholly insignificant to posterity, and 
 will be known only in connexion with a man whose monu- 
 ments in morals and the arts will be perpetually present to 
 the eye of all future ages; whilst he will stand in the view 
 of the philosophical historian, and all enlightened politi- 
 cians, as a genius of the sublimest order, a soldier, a states- 
 man and a lawgiver; not without great faults, yet more 
 free from gross vice than perhaps any other prince pos- 
 sessed of unlimited power, and who stood at the head, not 
 only of militarj', but of all civil and political rule. His 
 instrumentality in the formation of the code which, by 
 eminence, bears his name, ( The Code Civile) and the four 
 other codes, viz. Code de Procedure Civile, Code Penal, 
 Coded' Instruction Crimivelle, and the Code de Commerce, 
 was immediate and active. The original draft of the civil 
 code, prepared by the commissioners appointed for that 
 purpose, was reported by them in 1801, during the consu- 
 late of Napoleon, to the court of cassation or errours, and, 
 after their suggestions were made, passed to the review of 
 the council of state. In this last body the first consul pre- 
 sided; and in it every part of the proposed code was dis- 
 cussed. It was then presented to the 'tribunate, where it 
 underwent another discussion, and was then returned to 
 the council of state. Thus were the five codes prepared 
 and elaborated, and it appears from the debates in the coun- 
 cil, that the future emperor partook largely and prominent- 
 ly in them, suggesting, altering and amending with much 
 care and anxiety. These facts demonstrate the versatility 
 and magnificence of his powers, and justify his pride in 

 
 Lect IX OF THE FORMS OF GOVERNMENT. 471 
 
 the creation of this New Code of the Empire. It appears 
 from many passages in O'Meara and Las Cases, that he 
 viewed this enterprise with great complacency; and But- 
 ler observes in his Reminiscences, that a friend of his had 
 heard Napoleon say that he wished to be buried with his 
 code in his hand. Doubtless he will live in the minds of 
 posterity as long as the work remains in their hands; and 
 whilst his military achievements must command the won- 
 der of future times, his extraordinary ability in civil rule, 
 and his unwearied attention to the minutest details of go- 
 vernment and law, will be regarded as the brightest trait 
 in his history. 
 
 We have been thus particular because it is, we believe, 
 a very common impression that Napoleon's only agency 
 in the work, was ordering it to be composed by jurists 
 of his nation, and giving it his signature when com- 
 pleted. 
 
 Such is the brevity of these codes, that sometimes the 
 whole five are seen printed in one duodecimo volume. 
 The Code Civile is comprised in 2281 paragraphs, each 
 about as long as a Bible verse. This is the instrument 
 which regulates the tribunals of a populous and enlighten- 
 ed kingdom, and with effect and advantage; and such is 
 one of the benefits for which mankind is indebted to the 
 emperor of the French. 
 
 But a very important and interesting part of this great 
 work, are the discourses of the councillors of state, called 
 Motives of the Cedes of the Empire. These contain a suc- 
 cinct and luminous discussion of the various principles and 
 provisions of each code: they are a commentary upon the 
 history and philosophy of many of the laws, and manifest 
 the learning, ability and zeal of those enlightened men to 
 whom this great task was assigned. Most, if not all of the 
 Codes and Motives, have been translated. The Code de 
 Commerce, and its Motives have been translated by Mr
 
 472 OF THE FORMS OF GOVERNMENT. [Lect. IX 
 
 Rodman, with great ability. It has also been translated, 
 (as well as the Penal Code) by Mr. Duponceau, a civilian 
 of our own country, of distinguished talents and learning: 
 both of these are to be found in the second volume of Mr 
 Walsh's American Review. 
 
 We have now brought to a close our brief examination 
 of the works and lives of some of the most distinguished 
 among the ancients and moderns, who have contributed to 
 enlarge and illustrate the important science of political 
 government. This short notice of their opinions, their 
 productions, and their lives, may serve to stimulate the 
 young inquirer after knowledge to deeper researches. 
 We have aimed merely to facilitate his labours by desig- 
 nating for him the paths he should pursue. 
 
 We now proceed, according to our plan, to the remaining 
 topics of the present lecture. 
 (4.) A further di- We have stated many divisions of the 
 
 «l,:X™: f ° rmS ° f ff™™»»t among the ancient, 
 posed classification and moderns, as they have been display- 
 of all forms. ed by their i eg i s l a tors, and their philoso- 
 
 phical writers. We have seen that Machiavel and Montes- 
 quieu make very simple divisions, the first, into principali- 
 ties (or monarchies) and republics; the second, into des- 
 potisms, monarchies and republics. Neither of them, we 
 think, answers the purposes of classification: that of Ma- 
 chiavel is not sufficiently comprehensive, and Montesquieu's 
 is doubly defective, as it neither distinguishes polities ac- 
 cording to the distribution of their powers into few or 
 many hands, nor, while it mentions one corruption, does 
 it mention all. According to the first principle, he should 
 have included aristocracy in his arrangement, and have 
 omitted despotism, or, adopting the second, he should have 
 noticed, as the ancients did, oligarchy and ochlocracy, as 
 well as despotism. Montesquieu does indeed subdivide 
 republics into democratic and aristocratic;, but an aristo-
 
 Lect. IX.] OF THE FORMS OF^GOVEKKMENT. 473 
 
 cracy, considered as an elementary form, diners little from 
 a monarchy, and if it be an aristocratic republic, it can 
 scarce be conceived of as a simple form. 
 
 If classification be useful, it should be based on such 
 principles as will refer every conceivable form to its pro- 
 per head. We propose, then, to rank all known or con- 
 ceivable forms of government under the following heads. 
 
 I. Pure and Simple, viz. 
 
 1. Theocracy. 
 
 2. Patriarchy. 
 
 3. Simple Monarchy. 
 
 4. Simple Aristocracy. 
 
 5. Simple Democracy. 
 
 II. Pure and Mixed, viz. 
 
 1. Monarchy combined with aristocracy. 
 
 2. Monarchy combined with democracy. 
 
 3. Aristocracy combined with democracy. 
 
 4. Monarchy, aristocracy and democracy combined. 
 
 5. Quasi mixed Republic, or quasi mixed Democracy, in 
 which the various principles rather than the governments 
 are combined. 
 
 III. Corrupt and Simple, viz. 
 
 1. Despotism or tyranny. 
 
 2. Oligarchy. 
 
 3. Ochlocracy. 
 
 IV. Corrupt and Mixed. 
 
 {fcj° Either of these governments may be 
 
 1. Single. 
 
 2. Confederate. 
 
 We shall not dwell with much particularity on the fore- 
 going division,, in which there is nothing really new, or 
 which requires illustration by historical or other examples. 
 It will be proper, however, to say something in vindica- 
 tion of it, and to explain what is meant by some of the 
 terms used. 
 60
 
 474 OF THE FORMg OF GOVERNMENT. [Led. IX 
 
 To the first five forms are attributed purity and simpli- 
 city. By pure we mean that the sovereign power is exer- 
 cised mainly or entirely for the happiness and glory of the 
 governed; and by simple we mean that this power resides 
 in only one functionary or depositary, though perhaps in 
 more than one individual. In our second cardinal division 
 we find the same purity in the forms; but they are mixed, 
 that is, they are constituted of two or more of the simple 
 forms of government, variously combined. Thus, the 
 sovereign power may be lodged in an individual, with high 
 and special prerogatives, and also in a council or other 
 body, selected for their wisdom, birth, property, valour, 
 piety, or other eminent qualities. This is a combination 
 of a monarchy and an aristocracy. It is obvious that this 
 mixed form may itself be so variously modified as to ap- 
 proximate very closely to monarchy, aristocracy or demo- 
 cracy, according to the preponderance given to either of the 
 two constituent parts; for if the aristocratic branch be nu- 
 merous, and be chosen by the people, or by themselves, 
 the government will be more democratic than where that 
 branch is small in number, hereditary, or selected by the 
 monarch. The second form of mixed government is that 
 of monarchy and democracy. This is a form little likely 
 to occur, since the power of the crown can scarce be main- 
 tained against the encroachments of the people. It is, 
 however, not only a possible form, but one which has ex- 
 isted. So, thirdly, an aristocracy may be combined with a 
 democracy. Certain prerogative or transcendental rights 
 and powers may be vested in a few, that is, in an aristo- 
 cracy, whilst the people are permitted to enjoy many im- 
 portant powers. The fourth combination is said to be il- 
 lustrated by the British constitution, in which the three 
 simple and pure forms of government are so united that 
 each may act in its appropriate sphere, giving efficiency to
 
 l.ect. IX. ] OF THE FORMS Of GOVERNMENT. '175 
 
 all, whilst each is kepi within its prescribed limits by the 
 vigilance of the others. 
 
 The last form of mixed government we have enumerated, 
 requires a little more explanation, as it is exemplified by 
 our own government, and should be, as it easily is, distin- 
 guished from the preceding, in which the three simple go- 
 vernments are themselves combined, while in ours the 
 combination is merely of some of the principles of those 
 three simple forms. In the American constitution, the 
 powers of monarchy, aristocracy and democracy may be 
 said to be virtually exercised, and yet we have no mo- 
 narch, no aristocratic functionaries, nor do the people, in 
 proper person, exercise any governmental power. This, 
 perhaps, would be unnecessary, as far as the word demo- 
 cracy is concerned; for by a democracy we may mean 
 either the actual exercise by the people of legislative, ju- 
 dicial or executive powers, or simply that these powers 
 are all derived from, and dependant on, the will of the 
 people, but are exercised by their functionaries. In order 
 to get rid of this ambiguity, or twofold signification, some 
 have been inclined to restrict the word democracy to the 
 case of an actual exercise of these powers by the people, 
 and the word republic to the exercise of like powers by 
 the chosen functionaries of the people. Montesquieu, how- 
 ever, uses the word republic rather differently; he applies 
 it to all cases of pure government exercised by more than 
 one. If the sovereignty resides in the body of the people, 
 he calls it a democratic republic, or simply a democracy; but 
 if that power be lodged in the hands of a part of the peo- 
 ple, whether by right of birth, or election, he calls it an 
 aristocratic republic, or simply an aristocracy. The word 
 republic is ever associated with the idea of a government 
 so far free, that the people have at least the eventual means 
 of guarding against oppression. In common use, the word 
 is certainly considered as nearly or quite synonymous with
 
 476 Or THE FORMS OF GOVERNMENT. [Lect. IX. 
 
 democracy; and this latter word itself is understood to 
 mean a government of the people, exercised by their func- 
 tionaries. There being, then, a manifest difference be- 
 tween those forms of mixed governments of which wo 
 have spoken, viz. where the combination consists of an 
 actual union of the very governments themselves, and our 
 own mixed government, in which the mixture is of some 
 of the principles of the simple forms, it appears to be not 
 only necessary to bear in mind this distinction, but also to 
 designate such a mixed government as ours, by some spe- 
 cial or appropriate name. Under the British constitution 
 there is a king, lords and commons; there is a union of 
 monarchy, aristocracy, and one kind of democracy. We 
 have a president, secretaries, senate, and house of repre- 
 sentatives, which in some degree correspond to the three 
 elements of the British government. In England, the 
 sovereign power resides in the three public functionaries 
 we have mentioned: in the American government, it is 
 said to reside only in the people. The president is not a 
 monarch, nor are the secretaries and senators aristocratic 
 bodies; yet. the president is in a great degree directed in 
 the exercise of his powers, by the principles which desig- 
 nate a monarch, and his powers are mostly those which 
 characterize a monarch. So, the secretaries and senators 
 have some features in common with aristocratic bodies. 
 Shall our government, then, come under the fourth division 
 of the second head, viz. of 'Pure and Mixed Government/ 
 combined of monarchy, aristocracy and democracy; or 
 shall a new class, and an appropriate name, be selected for 
 it, so as to convey the idea that it is called mixed merely 
 from its approaching in its elements or principles the 
 mixed form we have just mentioned as exemplified by the 
 British government? Or, on the other hand, as it is not a 
 mixture of the actual simple forms, but of some of their 
 principles, shall our government be ranked with Simple go-
 
 Lect IX.] OF THE FORMS OF GOVERNMENT. 477 
 
 vernments, on the plea that, as all sovereignty resides in 
 the people, and is merely exercised by their functionaries, it 
 must be simple, and comes therefore under the last head of 
 the first division of our classification. A reply to these 
 questions is perhaps of no very great moment; it cannot 
 be made, however, until we ascertain precisely what is 
 meant by a simple government. If by a simple govern- 
 ment we mean nothing more than that the ultimate sove- 
 reignty resides no where but in the body of the people, 
 and that the exercise of delegated powers by their function- 
 aries in no degree impairs the sovereignty, then must our 
 government be classed under the head of simple; and 
 though the agents of the people are so variously consti- 
 tuted as to exercise, in a considerable degree, the three 
 classes of powers which seem to characterize all the three 
 simple forms, yet must the government still be simple, and 
 not mixed. So, again, if by the word mixed we mean 
 that the three, or any two of the elementary or simple go- 
 vernments are themselves combined, then must our go- 
 vernment still be simple, since we have neither monarchy 
 nor aristocracy. If, on the other hand, a government is to 
 be considered as simple or mixed, according as its ordinary 
 powers are actually administered by one or more bodies, 
 without reference to the residence of its ultimate sovereign- 
 ty, then is our government a mixed one, because the go- 
 vernmental powers are partitioned out, and lodged in distinct 
 and independent bodies, although the sovereignty remains 
 with the people, from whom all power originally flowed, and 
 continues to flow. Hence, a government may be a mixed 
 one in two ways; first, where the combination consists of 
 two or more of the simple governments themselves; or 
 secondly, where the general characters, and leading prin- 
 ciples of two or more of these simple governments are 
 united in several bodies. The first of these mixed go- 
 vernments is exemplified by Great Britain, by most of the
 
 478 : HE FORMS OF GOVERNMENT. [Lect. IX 
 
 European governments, and indeed by nearly all the pure 
 governments which have ever existed. The second kind 
 of mixed government is exemplified by our own constitu- 
 tion, which is a combination of principles characteristic 
 of the three simple forms, and so disposed of in various 
 organs, as to create the same responsibilities, checks and 
 balances which we find in a combination of monarchy, 
 aristocracy and democracy, though we have in reality nei- 
 ther the one nor the other. 
 
 If this view of the subject be correct, there should be a 
 name or expression introduced to distinguish these two 
 distinct classes of mixed governments from each other; 
 and there should also be some appropriate name given to 
 such mixed governments as are composed of the simple 
 forms, according as the one or the other preponderates, so 
 that the three combinations of the simple governments 
 might each be known by an appropriate name. Thus, for 
 example, the British government might be called a mixed 
 monarchy, taking its name from its preponderating feature. 
 The government of Venice, during most of the time of the 
 doges, might be denominated a mixed aristocracy; and the 
 government of Rome, under the consuls, and particularly 
 after the establishment of the tribunes &c. and that of 
 Athens, particularly under the annual archons, would ex- 
 emplify a mixed democracy. 
 
 In order to distinguish this sort of mixed governments 
 from those in which the mixture consists of various prin- 
 ciples of each, the same phraseology may be retained, with 
 the addition, however, of the adjunct quasi, if this be not 
 too unusual or pedantic. Thus, our government might be 
 called a quasi mixed democracy; the first word to denote 
 that the combination differs from that which is ordinary, 
 viz. of certain principles instead of the governments them- 
 selves; the second word to denote the fact of its compound 
 character; and the last to indicate that the predominant
 
 Lect. IX. OF THE FORMS OF GOVERNMENT. 479 
 
 feature in our polity is democracy. Or, as the word re- 
 public is with many a more favourite word, and is often 
 understood to mean that the people govern by their dele- 
 gates, our government might be called a quasi mixed re- 
 public. If a government in its organization should have 
 these principles so combined that monarchical or aristo- 
 cratic features should be the most prominent, it would then 
 be called quasi mixed monarchy, or quasi mixed aristo- 
 cracy. 
 
 We have said more than was perhaps necessary, in ex- 
 planation of the first and second of our cardinal divisions 
 of government. In the third, we have designated govern- 
 ments as corrupt and simple, viz. despotism, oligarchy and 
 ochlocracy: and in the fourth cardinal division are to be 
 found such governments, if any, as are corrupt and mixed; 
 these we shall consider together. A mixed government 
 can scarcely become corrupt, in the strong sense in which 
 we use the word, since the very mixture creates such a 
 system of checks and balances as will be extremely apt 
 to exclude that corruption which generates tyranny on 
 the one hand, or anarchy on the other. Those govern- 
 ments, it will be found, which are the most simple in their 
 structure, have been the most exposed to degeneracy and 
 corruption. So, also, those which are pure, are generally the 
 most permanent in proportion to their just admixture of the 
 primary forms of government. To place political rule in 
 the hands of a single person, has been the most general 
 resort of communities desirous of order, and the quiet en- 
 joyment of their property. This simple polity requires 
 no contrivance, no balances of the different powers of the 
 state against each other, in order to restrain each from en- 
 croachment. It was natural, too, to small communities, in 
 which the talents of an individual would be likely to be 
 most conspicuous; and it was generally better adapted to 
 their rude and warlike habits. Hence it is not surprising
 
 480 OF THE FORMS OF GOVERNMENT. [Lect. IX 
 
 that it should have prevailed so completely over the other 
 forms of government. But as it was the most easy expe- 
 dient of communities desirous of police, so it has always 
 been the most liable to abuse. Power can hardly be en- 
 trusted to a single man, and not be wantonly used to the 
 oppression, instead of the protection of the state; and 
 hence it has almost uniformly degenerated into despotism 
 or tyranny. It is fortunate, however, for mankind, that 
 even in the most absolute monarchies, certain limits are es- 
 tablished by long custom, common understanding, religion 
 &c. to which the worst princes are under some obligation 
 to conform, because the people in extremities, after having 
 endured much within the ample range of despotic power, 
 will be sure to rise and revenge the transgression of what 
 is manifestly theirs by the guarantees just mentioned. In 
 the mild monarchies of Europe, and even in those which 
 amble on the confines of d'espotism, there has always been 
 some form of constitutional restraint. Thus, the edicts of 
 the French monarch were to be registered by the parlia- 
 ment, before they had the character of laws; and we know 
 that even this weak bulwark against absolute power was 
 repaired to on the eve of the Revolution. Another de- 
 fence against despotic power, as we have before intimated, 
 is the creation of a nobility. This will appear extremely 
 obvious, when we compare the government of oriental 
 countries, where there is no hereditary nobility, with that 
 of Europe, where this class of depositories of power is so 
 well known. 'No monarch, no nobility: no nobility, no 
 monarch,' says Montesquieu. Hence monarchy, as a 
 simple form of government, has been seldom known, it 
 being generally combined with aristocracy; and if not, it 
 soon becomes corrupt, and takes the name of despotism. 
 
 Nearly the same remarks apply to aristocracy, which 
 becomes corrupt, and takes the name of oligarchy, unless 
 it be associated with, democracy. Indeed this form of po-
 
 Lect- IX.] OF THE FORMS OF GOVERNMENT. 48i 
 
 lity is more liable to degeneracy than monarchy; for, as Dr 
 Priestley justly observes, 'as the people have more masters, 
 they are more liable to be sorely oppressed.' The liberty 
 of the people would, I grant, at first appear to be more se- 
 cure in the hands of a few than of one; but it is to be re- 
 membered that a monarch acts on his own responsibility, 
 and in conformity to the dictates of his own mind; whereas 
 an aristocracy divide responsibility, and they corrupt each 
 other. They are often turbulent and distracted in their 
 counsels; faction rises on faction; and whilst they vex each 
 other, they often agree upon nothing but the oppression of 
 the people; for this is generally necessary in order to 
 enable these factions to sustain themselves against each 
 other. The oppression of an aristocracy is also the more 
 galling to the people, as they consider those in power more 
 men like themselves, than they are apt to think a mo- 
 narch, who is more retired from their observation, and 
 therefore more venerated. That an aristocracy is gene- 
 rally a severe government, and soon assumes the corrupt 
 form called an oligarchy, witness Venice, and also Athens 
 under the Thirty. Witness, likewise, those nations in 
 which the nobility have succeeded in gaining a preponde- 
 rance over royalty: thus in Denmark and Sweden, after 
 the nobility had triumphed for a time, their power was 
 transferred, with the hearty concurrence of the people, to 
 the king. In fact an aristocracy, which in its primitive 
 nature is the rule of the best, becomes almost invariably 
 the despotism of a few; and the people, instead of having 
 several protectors, have as many tyrants. 
 
 Lastly. A simple democracy is, next to a pure monarchy, 
 the easiest form of polity to be fallen into, especially in 
 small states. Its advantages are equality of rights; free 
 scope to the exertion of every man's talents, and equal re- 
 wards to his merits; and the adoption of general laws, 
 from which arise security, curiosity, and consequently 
 61
 
 482 OF THE FORMS OF GOVERNMENT. ;Lcct. IX 
 
 knowledge. Were mankind just and virtuous, democracy 
 would, in truth, be the only natural government; we might 
 say, the only lawful one; since all men are bound to com- 
 bine their talents for the discovery of the best means of 
 promoting the general happiness. That it has not more 
 generally prevailed, that it has even been pronounced ab- 
 surd and impossible, arises from vice and corruption in 
 the people, from its turbulence and faction, and, above 
 all, from unwieldiness in the force of the state. It is 
 too apt, in short, to degenerate into ochlocracy or anar- 
 chy. Thus, then, each of the pure and simple govern- 
 ments appears to have its peculiar infirmities, a monar- 
 chy degenerating into a despotism, an aristocracy into 
 an oligarchy, a democracy into anarchy. Sensible of these 
 evils, philosophical politicians have exercised their skill in 
 so combining the simple forms, that the besetting vice of 
 each may be counteracted by some opposite quality of that 
 with which it is combined. In some constitutions you 
 will find the monarchical privileges countervailed by as- 
 semblages of the people, the monarch having the execu- 
 tive, the people the legislative power, with the reservation 
 of an absolute or qualified veto to the sovereign. The 
 fault of this combination is, that the interests of the two 
 come too frequently into collision, and there is no third 
 power to trim the balance, and mediate between them. In 
 others, as in that of ancient Rome, the aristocracy and de- 
 mocracy were balanced against each other; and with all the 
 seditions and civil dissensions of the first seven hundred 
 years of the Eternal City, it was a constitution which 
 showed the salutary efficacy of these balances of the civil 
 powers, though chargeable with the defect of too indefinite 
 a limitation of the scope and bounds of each. The mo- 
 dern monarchies of Europe, afford us examples of the mix- 
 ture of all the three simple forms, and are systems of go- 
 vernment somewhat different from any that were practised
 
 Lect. IX. OF THE FORMS OF GOVERNMENT. 483 
 
 among the ancients. These forms, now so common, 
 though they were the production of a kind of accident, 
 are better than any that preceded them. History informs 
 you of their origin; how, from their dispersedness, the 
 conquerors, originally entitled to vote every thing in per- 
 son, were obliged to send deputies, and hence the idea of 
 representation; how the commons, originally vile and en- 
 slaved, grew wealthy and powerful with the augmentation 
 of trade and the arts, and then asserted their share in the 
 great council of the nation; and, lastly, how the privileges 
 of king, nobles, clergy and people became so tempered as 
 to check and balance each other, and to subject every pub- 
 lic measure to repeated discussion; so that the vigour and 
 promptitude of monarchy in war, might be happily blend- 
 ed with that security of property and person, which cha- 
 racterizes a republic in peace. 
 
 The success of the European states has indeed been va- 
 rious in properly combining and balancing the different 
 members of the government; but that of England has been 
 worthy of all praise, and amidst the comparative oppres- 
 sion of neighbouring countries, must not be undervalued 
 because, in a more philosophical age, and under more aus- 
 picious circumstances, we ourselves have constructed a yet 
 more free and more symmetrical form of polity. It is the 
 advantage of the federal republic, that while it is large 
 enough to withstand external force, its form prevents the 
 inconvenience attendant on democracies of too great an 
 extent, viz. the unwieldiness of popular assemblies; the 
 difficulty *)f preserving subordination, and conserving local 
 interests throughout the whole body; and the faction and 
 opposition of interest which almost invariably prevail in 
 them. We may apply the observation of Montesquieu, 
 when speaking of confederate republics, with peculiar 
 propriety to ©ur own. 'As this government is composed 
 of petty republics, it enjoys the internal happiness of each,
 
 4S4 OF THE FORMS OF GOVERNMENT. [I.ect. IX 
 
 and with respect to its external situation, it is possessed, 
 by means of the association, of all the advantages of large 
 monarchies.'* Our constitution is certainly the com- 
 pletest model of this kind; and every lover of mankind 
 must desire that it shall deserve this encomium from a phi- 
 losopher such as Montesquieu, and one who wrote before 
 its existence. Since, according to Montesquieu, our con- 
 federation belongs to the only species of government of 
 which virtue is the principle; since the honour and power 
 of monarchies, the moderation of pure aristocracies, and, 
 above all, the slavish fear of despotisms, are with us 
 supplied by a better principle; since here the mind best 
 expands into action, thought is liberal, conduct free, pro- 
 perty and person secure, and manners independent; we 
 have not only good reason to congratulate ourselves on our 
 political scheme, but are bound by every strong motive of 
 human life, to give it permanency. We have made the ex- 
 periment on a vast scale; many millions of men are deeply 
 concerned in its success; and all civilized nations are 
 watchful of the event, some with the hope of imitating us, 
 and a few, perhaps, with the dread that our success will 
 piove their downfall. 
 
 'The laws, the rights, 
 
 The generous plan of power deliver'd down 
 
 From ojre to age, by our renown'd forefathers, 
 
 So dearly bought, the price of so much blood, 
 
 Oh! let it never perish in our hands.' ( t>it>. 
 
 ' >•!■ nt. ?pir. of Laws.
 
 LECTURE X. 
 
 OP THE FEUDAL LAW. 
 
 Pursuing our topics in the order designated in the syl- 
 labus, we are now to treat of the elementary and constitu- 
 tional principles of the Municipal or Common Law of 
 England. 
 
 The present lecture will be devoted to an inquiry into 
 the leading principles, the laws, and the institutions of the 
 feudal ages, so far as they are in any degree connected 
 with the system of English jurisprudence. 
 
 It will be perceived from the syllabus that the topics of 
 this lecture are too numerous to admit of much amplifica- 
 tion. All that can be accomplished consistently with our 
 general plan, is to present an analytical view of the sub- 
 ject, with references to such sources of information as will 
 enable the student to pursue his inquiries with facility and 
 certainty into a system which lies at the very foundation 
 of his future legal studies. 
 
 Introduction. The barbarous nations which, between 
 
 the fifth and seventh centuries, invaded and occupied the 
 provinces of the Roman empire, established a form of po- 
 lity so different from that of Rome, or indeed any other 
 which had ever existed, that modern history is wholly un- 
 intelligible without a knowledge of the systems which 
 they erected. Their scheme of jurisprudence, also, is 
 equally unexplainable without this knowledge; and since 
 the common law of England is in part the offspring of the 
 feudal, the consideration of the general features of the feu- 
 dal polity is necessary to any clear and systematic inquiry
 
 486 OP THE FEUDAL LAW Leot. X 
 
 either into the learning of feuds, as it existed in England, 
 or into that body of law which sprang out of it, and which 
 is usually known as the common law. 
 
 We deem this subject so important to the right under- 
 standing of many portions of the municipal law, that we 
 shall extend the present lecture much beyond the usual 
 limits, and for the sake of clearness, shall divide it into 
 two parts. In the first we shall present a general view of 
 the feudal system as it subsisted in the various European 
 nations; reserving the second part for a more particular 
 consideration of it as it appeared in England, together 
 with some references to particular topics and questions 
 which are interesting to students of the English laws and 
 constitution, though they could not so properly make a 
 part of a general essay on the feudal establishments. 
 
 Part the Firs 
 
 Occupation of the Division I. The various tribes which 
 
 conquered lands by successively poured in upon the Roman 
 
 the barbarians, and 
 
 their allotment a- conquests, were of so independent a spirit 
 
 mong the victors. that they conceived themselves not less 
 entitled than the chieftains who had led them, to par- 
 ticipate the acquisitions which they had made by their 
 valour. Whatever distinction they made in the degree of 
 remuneration, seems to have grown out of their estimate of 
 the services and conduct of their leaders, rather than to 
 have been made in reference to the regal character; and if 
 the kings gained a larger share in the conquered lands, it 
 was with a view to their merit, and not to their prero- 
 gative. 
 
 (l.) Of Allodial Every freeman, therefore, who folio w- 
 Property. ec \ h} s chieftain to conquest, took his 
 
 share of the territorial spoil as the fruit of his good sword; 
 and he enjoyed it discharged of every service, duty or 
 tribute, except that which was required for the safety of
 
 Lect. X.] OF THE FEUDAL LAW. 487 
 
 the state, namely, military service, which he paid, how- 
 ever, as a freeman, and not as a feudatory. Hence his es- 
 tate was called Allodium, which imports a certain share 
 falling to any one by lot, from the two German words an 
 and lot. These lands were owned by their several pro- 
 prietors as their absolute property, free from all tenure, 
 and bound by no duty even to the king; for though the 
 allodial proprietors, in common with all other subjects, 
 owed allegiance to the sovereign of the state, it was not in 
 respect of their lands. 
 
 These allotments of land among the victors did not re- 
 sult in the total expulsion of the Roman proprietors: on 
 the contrary, the Burgundians and the Visigoths took but 
 two thirds of their respective conquests; the Lombards of 
 Italy, a third part of the produce; the Vandals of Africa, 
 all the best lands; while the Franks, though we discover 
 no mention of a particular apportionment by them, certainly 
 held a great part of the lands of France. 
 
 (2.) Of Benefida or But while every free soldier would es- 
 Feuda. teem himself entitled to a share of his 
 
 conquests, it was natural that they should reap the largest 
 rewards whose conduct and courage had been most conspi- 
 cuous in achieving them. Large portions of land were 
 therefore assigned in the distribution, to the eminent 
 chiefs, and a larger to the king, both as the most merito- 
 rious soldiers, and as the chief repositories of responsi- 
 bility, and contrivers of the general plan of conquest; and 
 hence, also, was it that the king, not indeed in virtue of 
 prerogative, had apportioned to him a very large share. 
 The chieftain? too, like the king, were necessarily influen- 
 tial from their knowledge and talents. Hence, the king 
 himself would be most anxious to attach them to his per- 
 son, and to secure their skill and fidelity in the field or in 
 the council. To this end they received from him dona- 
 tions out of his own extensive allotment; and they in turn.
 
 488 OF THE FEUDAL LAW. [Lect. X 
 
 from similar motives towards their own companions, would 
 parcel out these donations, as well as their own proper 
 and original portions, amongst such suhordinate freemen. 
 Thus a freeman, whether eminent or obscure, might hold 
 land acquired by two different titles: that is, his own ori- 
 ginal allotment as a member of the community, which was 
 allodium, and another as the gift of some powerful or 
 friendly superior: this last was termed a Beneficium or 
 Feudum, the latter word being compounded of feo, wages 
 or stipend, and od, possession or estate; conjointly signify- 
 ing something that is stipendiary, or granted as a recom- 
 pense for services to be rendered.* 
 
 The allodial proprietors, we have already mentioned, 
 were under no other obligation than that which is due by 
 all subjects to the state; whereas the beneficiary or feudal 
 owners were tenants, subjected to various personal ser- 
 vices, to be rendered, generally at stipulated periods, to 
 their lords, and bound to them by many ties of the strict- 
 est fidelity. Allodium, therefore, created the obligation 
 of allegiance; feudum superadded those of fealty, ho- 
 mage &c. 
 
 Whether Benefida Division II. These feuda or benefi- 
 
 were ever grantable c j a were originally granted only during 
 
 during pleasure only; . 
 
 and how they became pleasure; and Dr Robertson thinks that 
 
 hereditary. n0 circumstance relating to the customs 
 
 of the middle ages is better ascertained than this, t This 
 opinion, however, which indeed is that which has been 
 held by nearly all who have expressed any on the subject, 
 is questioned by Hallam in his History of the Middle 
 Ages, who thinks that no satisfactory proof has ever been 
 
 * Cragii Jus Feudale, lib. l,sec. 4. Hale's Common Law, Runnington's 
 ed. 107, note (/i). Coke Littleton, 64, note 1. Steuart's View of Society 
 in Europe, book 1, ch. 2, sec. 1. 1. Rob. Char. V. 1S5. Squire's Anglo- 
 Saxon Gov. 2b. 
 
 1 l. Rob. ch. v, 179. Steuart- Hisl D
 
 Lect. X.] OF THE FEUDAL LAW. 489 
 
 brought of it, and doubts whether beneficiary grants were 
 ever resumable at pleasure, unless in case of some delin- 
 quency in the vassal.* Benefices granted for a term of 
 years, he thinks, may have existed, though he is not aware 
 of any documents which prove even this. However this 
 may be, it is certain that fiefs did not long continue pre- 
 carious, or even limited to the vassal's life; for, indeed, 
 under the first race of French kings, which ended about 
 the year 680, both the laws and the precedents of forms 
 would seem to prove that they had already in many cases 
 become hereditary. Nothing, we think, was more natural 
 than this perpetuity of estates. The motives which 
 prompted favours to a meritorious and useful chief, would 
 be strengthened by compassion for his offspring; and the 
 weakness of the royal authority would often suffer what 
 neither of these principles might have inclined it to bestow. 
 We have made use of the words benejicium and feudum 
 as synonymous; but this in strictness is not correct. The 
 word feudum is indeed often used, in an enlarged sense, 
 to import any species of feudal estate, without reference 
 either to its precarious or its fixed nature, or to its being 
 granted at will, for years, for life, or as an inheritance. 
 There can be no doubt, however, that there were distinct 
 names appropriated to these various kinds of grant, and 
 they distinguish the progress of the feudal law, in regard to 
 the tenant's estate in the land. Thus, when these estates 
 were altogether precarious, or dependent on the lord's will, 
 they had the name of munera; if granted for years, they 
 took the name of terms; and when for life, they were 
 called benefieia. This was their state generally from the 
 seventh to the tenth century, at which time the perpetuity of 
 these estates was fully established, and they then assumed 
 the name of feuda. 
 
 i Mall. Mid. Ages, l«* 
 
 h2
 
 490 OF THE FEUDAL LAW [Lect. X 
 
 A benefice, therefore, strictly means an estate for life 
 held by a tenant of his feudal lord; and a feud imports a 
 like estate held in perpetuity. Both feuds and benefices 
 were further divided into Proper and Improper, which de- 
 nomination they took from some circumstance that distin- 
 guished them from those generally granted. 
 
 A proper benefice was an estate in lands granted to a 
 man during life, and held by fealty, and some uncertain 
 military service. Improper benefices, consequently, were 
 estates in any other things than land, or, if land, held in any 
 other manner than is indicated by the foregoing definition 
 of a proper benefice. The improper benefices may be 
 thus classed. 
 
 1. When lands were granted to the church. In this 
 case, the services not being military, and the estate not 
 being for life, as it endured forever, the church being per- 
 petual, the estate was denominated an improper benefice; 
 and if its perpetuity would class it with feuds, it would 
 still be an improper one, as the services were not mili- 
 tary. 
 
 2. Where the tenant was expressly permitted to take 
 possession of the estate without actually taking the oath of 
 fealty. Here, though the tenant could do nothing against 
 the ordinary requisitions of the oath, yet he could not be 
 compelled to take the oath, unless when the investiture 
 had been merely silent, as to the oath of fealty. 
 
 3. If the estate might endure longer than the tenant's 
 life, or for a shorter period, the benefice was then also an 
 improper one. As if land were granted to A and B, and 
 the survivor of them, here the survivor was supposed to 
 hold the land, not only during his own life, but also during 
 the life of the other; a principle wholly at variance with 
 the subsequent and present doctrine of the common law, 
 which is, that every man's own life is, in the contempla- 
 tion of law, a greater estate than any number of lives then
 
 Lett. X.] OP THE FEUDAL LAW. 491 
 
 in existence. On this principle, the benefice stated in the 
 foregoing example would be a proper benefice, since the 
 survivor had nothing more than an estate during his own 
 life. So, again, if the life estate might by any possibility 
 terminate short of its expiry by efflux of time, it was an 
 improper benefice; as if an estate for life were granted to 
 A, to be defeated by any condition, or by the happening of 
 any event. 
 
 4. If any certain services, military or otherwise, were 
 reserved, the benefice was an improper one. 
 
 5. If no military service were reserved, but some rent, 
 it was an improper benefice; hence all soccage estates were 
 improper benefices. 
 
 6. If no services whatever, except fealty, were reserved. 
 
 7. Estates held by grand or petty serjeantry (the for- 
 mer being referrible to knight's service, the latter to soc- 
 cage tenure,) were also improper benefices, as the services 
 were in both cases certain. 
 
 8. All grants to females, though the services reserved 
 were military and uncertain, were still classed under this 
 head, since the services were to be performed by deputy, 
 and it was essential to a proper benefice, and a proper feud, 
 that the services should be personal. 
 
 9. Finally, all things whatever which are from their na- 
 ture transferrible by grant or contract only, and not by li- 
 very of seisin, were held only as improper benefices or feuds. 
 Such things were said to lie in grant, in contradistinction 
 to all those which are embraced under the legal notion of 
 land, and which are said to lie in livery. 
 
 The foregoing remarks on improper benefices, and the 
 criterions by which they are distinguished from proper be- 
 nefices, equally apply to the distinction between proper 
 and improper feuds; a proper feud being what a proper be- 
 nefice is, except that the latter is an estate for life, and the 
 former an estate in perpetuity.
 
 4!>2 OF TH£ FEUDAL LAW. [Lect \ 
 
 _ . .„' . Division III. But it was not only the 
 
 How Counts and 
 
 Dukes made their beneficiary estates, but the great offices, 
 offices hereditary. which thus change( i their nature, and 
 
 from being granted for life, or during good behaviour, 
 became hereditary in the families of the original grantees. 
 The kingdom of Clovis was divided into a number of dis- 
 tricts, each of them under the administration of a Count 
 (the Comes of the Romans, the Graf of the Germans) 
 whose duty was the preservation of public order, the ad- 
 ministration of justice, the collection of the revenues, and 
 the direction of the free proprietors when summoned into 
 the field. 
 
 A Duke was of still higher authority, and usually had 
 command over several counties. These offices, originally 
 conferred during pleasure, would naturally be affected by 
 the same causes which gave hereditariness to beneficia or 
 fiefs; and so, in fact, they appear to have been, even so 
 early as under the Merovingian race of French ki-ngs. The 
 Marquisses or Margraves, to whom was entrusted the cus- 
 tody of the borders or frontiers, followed the example of 
 the counts and dukes, and all these officers, both by thus 
 assuming a kind of patrimonial right to their dignities, 
 and by the constant acquisition of private estates within 
 the limits of their jurisdictions, rendered themselves for- 
 midable to the crown, and in time engrossed to themselves, 
 and the n;osl eminent proprietors of lands, the right, or at 
 least the power, of electing the Mayors of the Palace, who, 
 from being mere officers of the court, had now become al- 
 most masters of the kingdom. Thus, from the union of 
 large landed property with the usurpation of personal dig- 
 nities for their heirs, the feudal chiefs laid the foundation 
 of that landed aristocracy which is the most peculiar cha- 
 racteristic of the political system of Europe during many 
 centuries, and may in fact be regarded as the strongest 
 feature which distinguishes the despotism of Asia, and the
 
 Lect. X.] OF THE FEUDAL LAW. 493 
 
 equality of modern republics, from the feudal polity of 
 
 which I am now treating. 
 
 Causes of the pre- Division IV. It is evident from the 
 
 valence of feudal brief account I have given of the mode 
 
 over allodial proper- ».,..,. 
 
 ty, and of the rise of °i dividing the conquered lands practised 
 
 Tenures. among the invaders of the Roman em- 
 
 pire, that the scheme of polity called the Feudal System, 
 was far from existing among them even for some ages after 
 their settlement. So far was the structure of their states 
 from that series of concatenated dependencies, in which 
 the king being considered as lord paramount, every holder 
 of land beneath him traced his title up to him through suc- 
 cessive donors, and which may be illustrated by the fami- 
 liar image of a tree with its root turned upwards, and its 
 branches dependent; that, in fact, they were assemblages 
 of free and independent landholders, with an elective leader 
 at their head, and who owed no other service, and bore no 
 other badge of dependence, than a contribution of their 
 military assistance to the defence of the community. In 
 these points they resembled many other nations, and it was 
 only from particular circumstances, whose nature and pro- 
 gress it is our intention cursorily to trace, that the extraor- 
 dinary state of government and manners arose, which we 
 term the feudal system. 
 
 Much has been written both as to the history and juris- 
 prudence of the feudal ages. For minute information on 
 these topics I refer you to the researches of Craig, Spel- 
 man, Selden, Sullivan, Lowman, Kaimes, Squire, Whita- 
 ker, Dalrymple, Gilbert, Wright, Harrington, Hallam, 
 Steuart, Millar, Robertson, Hume, Montesquieu, and many 
 others, who have devoted much time to the laws, manners 
 and institutions of the middle ages. Whether we view 
 the influence which this long prevailing system of laws 
 had on the political and municipal codes of every nation in 
 which it has prevailed, or advert to its effects even on the
 
 494 jf the feudal law. [Lect \ 
 
 jus gentium, or international law of Europe, we cannot 
 but esteem it a subject of the greatest interest, no less to 
 the jurisprudent than the historian. 
 
 The origin of feuds, or at least something analagous to 
 them, has been sought, and supposed to be found, in va- 
 rious nations, indeed in the history of almost every nation, 
 from the Jews to the Mexicans. Though partial resem- 
 blances to the feudal system may no doubt be discovered 
 in the early history of many nations, and though, for ex- 
 ample, the relation of patron and client, in the Roman re- 
 public, was somewhat similar to that of lord and vassal, 
 in respect to mutual fidelity; and, to give another instance, 
 though the veterans of the republic received lands on con- 
 dition of public defence; yet the relation of patron and 
 client was not founded in any degree on tenure, or military 
 service; nor, in the other case alluded to, did the relation 
 subsist between the soldier and his individual lord, but be- 
 tween him and the state at large. On this subject the 
 learned Selden, when speaking of Romulus's institution of 
 patron and client, remarks that 'though there certainly was 
 a bond between the parties, yet it does not appear there 
 was any possession held by that bond.'* 
 
 The feudal policy, like the garden of Eden, has been 
 found, as we have said, by fanciful writers, not only in 
 Rome, but in the schemes of government of almost every 
 other nation. Lowman points out a great similarity be- 
 tween this system and that of the Hebrews. t It has been 
 
 * Selden's Titles of Honour, part 2, ch. 1, sec. 23. 
 
 j Lowman on the Civil Government of the Hebrews. Chap. 4. 
 
 This opinion is also countenanced by several other respectable writers, 
 among whom is Dr Jennings, in his able work on '.7etcis/» Antiquities.' In 
 his inquiry into the origin of tithes, and the reason why the priests and 
 Levites should be thus supported, rather than by allotting to them an inhe- 
 ritance in a portion of the lands, he says that 'the tithes reserved by God 
 to be paid by the Israelites to his priests, might have been designed as an 
 acknowledgment that they had received their estates from the gift of Deity,
 
 Lect. X.] OF THE FEUDAL LAW, 495 
 
 found by others among the American Indians; in the is- 
 lands of the Pacific ocean; among the Britons; and in va- 
 rious parts of Europe and Asia, long prior to the invasion 
 of the Roman empire by the Lombards and other northern 
 nations. 
 
 That lineaments of the feudal policy are discoverable in 
 the history of nearly all rude nations, there can be no 
 doubt; but the inferences which have been deduced by 
 some writers from these occasional resemblances, are too 
 wide; and, in some instances, entirely visionary, as we 
 shall have occasion presently to show. We have only to 
 remark at this time, that the Highlanders and the Irish, 
 among whom these traces of feudalism have been supposed 
 to be found, were collected into clans by imaginary kin- 
 dred, and respect for birth, and not by vassalage. So, in 
 Poland and in Russia, where all the nobles were equal in 
 rights, and wholly independent, and all others were in ser- 
 vitude, we discover something even very opposite to 'the 
 long gradations and mutual duties of the feudal system.' 
 We may add that the dominions of Charlemagne, which 
 embraced France and Germany, and something more; and 
 also England, after the Norman conquest, as well as. Naples 
 and Arragon, appear to have been the only countries in 
 which the principles of feudalism were fully developed. 
 
 and that they held them by no other tenure, in which view these tithes 
 may be regarded as a quit-rent, to be annually paid to God, the original 
 proprietor of the land, who had conquered it for them, and put them into 
 possession of it. Paying it to the priests and Levites, God's immediate ser- 
 vants and ministers, was paying it to him; and as the Israelites held their 
 estates by this tenure, a negleet or refusal to pay tithes induced a forfei- 
 ture of the estate.' The learned author then proceeds to compare this re- 
 servation of tithes to the quit-rent reserved by William the Conqueror, 
 who, when he parcelled out the lands of England, reserved a certain small 
 rent, to be annually paid out of every estate to the crown, as an acknow- 
 ledgment that it was received from ; and held under him as a feudal lord. 
 1 Jenn. Jew. Antiquities, 240.
 
 496 OF THE FEUDAL law. Lee*. -\ 
 
 We have seen already how the kings of the rude invaders 
 of the Roman empire, who had a more ample endowment, 
 and to whom fell the residue, of the conquered lands, sought 
 to attach to their persons and fortunes their more eminent 
 followers, by liberal donations out of their own ample 
 share, over and above the allotment originally made to 
 every freeman. Enriched thus at once by their allodial 
 share, and by the grants of their sovereigns, these larger 
 proprietors, after fixing in their descendants the inheri- 
 tance of these at first resumable grants, set themselves to 
 securing the attachment and services of their companions 
 and inferiors, by carving out portions to be held of them- 
 selves, by a tenure similar to that by which they held of 
 the sovereign. Their possessions were also augmented by 
 their usurpations, in the quality of counts, dukes and mar- 
 quisses, of the crown lands contained within their respec- 
 tive jurisdictions; and having thus rendered themselves 
 formidable to the crown, and at the same time benefactors 
 to a numerous train of retainers, they became dangerous 
 members of the state, and troublesome neighbours to the 
 small allodial proprietors. Inequality of property, more 
 especially in land, is particularly productive of mischief 
 in a warlike and turbulent age; and the independent free- 
 man, unable to protect himself in the enjoyment of his 
 right, was generally happy, or at least compelled, to pur- 
 chase safety by invoking the protection, and courting the 
 service of his powerful neighbours. The domestic wars 
 waged by unquiet and disobedient nobles, aggravated the 
 evil, and forced those of inferior power and property to 
 seek this feudal alliance; which, if it laid them under the 
 obligations of vassalage, secured them, however, the bene- 
 fits of protection. In a rude age, destitute of records, the 
 nobles might easily assume the lordship of lands by usur- 
 pation. Hence was it, according to Montesquieu and 
 others, that the feudatories of the king at least, had greater
 
 Lcct. X.] OF THE FEUDAL LAW. 497 
 
 privileges bestowed on them by the policy of the age, 
 than even the allodial proprietors. This, combined with 
 the other circumstances just mentioned, will sufficiently ac- 
 count for the general transition of allodial property into 
 feudal. In addition to what has been said, it is supposed 
 to have been a frequent practice with the less powerful 
 freemen, to purchase the protection of the great lords by a 
 stipulated payment of money; an engagement which re- 
 ceived the name of 'Commendation;' and it may be fairly 
 presumed that the stronger parity was not slow, when cir- 
 cumstances favoured, to change this voluntary contract into 
 a complete feudal dependence. 
 
 Hence, during the tenth and eleventh centuries, allodial 
 lands in France had chiefly become feudal, being often 
 surrendered by their owners, and received back on feudal 
 conditions; or, more frequently, the allodial proprietor 
 acknowledged himself, in a formal manner, the 'man' or 
 vassal of a chief or Suzerain, and thereby confessed an 
 original grant, which had never in fact been made. It was 
 the same in Italy and in Germany, though not in the 
 same degree; and even in France it were inaccurate to 
 assert that the feudal system had an unlimited prevalence, 
 allodial tenures always subsisting there as well as in the 
 empire. Yet it is manifest how strong the inducements 
 must have been, in these lawless times, to make the former 
 prevail over the latter species of property, and lead the al- 
 lodial proprietor to seek with anxiety to become a feudal 
 tenant. 
 
 A great chieftain, possessed of large territory, and in- 
 vested with ample military and civil jurisdiction as count 
 or duke, lived at his country-seat, which the violence of 
 his neighbours induced, and the weakness of the royal au- 
 thority permitted him to fortify. He thus became clothed, 
 with a strong personal and territorial influence over a large 
 body of vassals: these he industriously educated in military 
 63
 
 498 OF THE FEUDAL LAW. [Lcct. \. 
 
 exercises, lavished on them his hospitality, and conferred 
 on them the only means of gratifying their ambition, or 
 even of employing their leisure. The countenance of 
 power would then, as it ever has, attach respect, as it mi- 
 nistered to their wants whilst it gratified their vanity; and 
 the loose police of the times, if it weakened the bonds of 
 the general government, knit more closely those smaller 
 associations for defence and support. Hence, the govern- 
 ment of the feudal kingdoms verged perpetually more and 
 more towards aristocracy; and the barons and great lords 
 acquired over their vassals that strong authority, and those 
 feudal privileges, which were so far from belonging to 
 them at the first settlement of the barbarians, that they 
 themselves did not even exist as a body of nobility distin- 
 guished from the mass of Franci or freemen. Five centu- 
 ries, in fact, elapsed before the allodial tenures, which had 
 been by far the most general, gave way, and before the re- 
 ciprocal contract of the feud attained its maturity. 
 
 Various writers refer to an edict of the emperor Conrad 
 II. in the year 1037, as marking the full maturity of the 
 feudal system; and we find that four principal regula- 
 tions of that edict relate to as many important principles of 
 feuds. The first principle to which I allude, as contained 
 in that document, is, that no freeman should be deprived 
 of his fief, whether held of the emperor or of a mesne 
 lord, but by the laws of the empire, and the judgment of 
 his peers. We need scarce mention that this provision 
 was adopted in England, nearly two centuries afterwards, 
 by the celebrated statute of Magna Charta. The second 
 principle of the edict is, that from all such judgments a 
 vassal holding in capite might appeal to his sovereign. In 
 this provision we perceive the origin of the judicial pow- 
 ers formerly exercised by English sovereigns, and the 
 source of that equitable jurisdiction which, in after times, 
 was vested in the Lord Chancellor, as the king's vice-
 
 Lect. X.] OF THE FEUDAL LAW. 499 
 
 gerent. Thirdly. In this edict we also find the principle 
 that feuds should be inherited by sons, and their children; 
 or, in their failure, by brothers, provided the feuds were pa- 
 ternal: and here we see the origin of that canon of English 
 descents which restricts the inheritance of lands to the 
 blood of the first purchaser or acquirer; and of the conse- 
 quent exclusion of the half blood. Fourthly. The last 
 rule to be found in this edict is, that the lord should not 
 alienate the feud of his vassal but with his consent. In 
 this regulation we perceive the source of the common 
 law doctrine of forfeiture for unauthorized, and of fines for 
 authorized alienations, the obligation of lord and vassal in 
 respect to alienation, being reciprocal. So widely did the 
 principle spread, of considering all property as subjected 
 to feudal rights and obligations, that not only were lands 
 bestowed as feuds, but even casual rents; as, for example, 
 the profits of a toll, the fare paid at ferries, the salaries of 
 offices, and even pensions, were given and held as fiefs, and 
 military services exacted on account of them. Nay, the 
 profits arising from masses said at the altar, though strictly 
 an ecclesiastical due, were sometimes seized by the barons, 
 and parcelled out among their sub-vassals. Even the 
 clergy raised seigniories of the donations of land made to 
 them by piety and faith, and exacted feudal service and 
 fealty from their feudatories. 
 
 Hence we find in the 'Book of Feuds' a great variety 
 of names of feuds, as, for example, the Feudum de cave- 
 nd, the Feudum de camera, Feudum soldatae, Feudum 
 habitationis, Feudum gardisc, Feudum gastaldse, Feu- 
 dum tnercedis, &c. a brief explanation of each of which 
 will be sufficient. 
 
 1. Feudum de Cavenu, was the tenant's right to re- 
 ceive from the king's or lord's cellar {cavenu.) a certain 
 supply of provisions. This feud came in lieu of those 
 feasts which the king or lord, in more ancient times, gave
 
 500 OF THE FEUDAL LAW. [Lcct. X- 
 
 to their comites, or companions in arms. These feuds al- 
 ways terminated with the tenant's life, or with that of his 
 
 lord. 
 
 2. Feudum de camera was a similar allowance of mo- 
 ney out of the repository or camera where the king or 
 lord kept his funds. In this, as well as in the preceding 
 case, the tenant's right to draw the provisions or money, 
 depended on there being unappropriated provisions in the 
 cavena, or money in the camera; and these were granted 
 either for past or future services. In both cases the feu- 
 dists adopted the language of the civilians, and the former 
 were denominated inofficiosa, the latter officiosa. Du 
 Cange, Spelman, Craig and others have spoken of these 
 feuds under the heads of Camera and Cavena. 
 
 To these feuda inofficiosa we may refer the pensions 
 granted at this time by the king out of his revenue; and to 
 the feuda officiosa we may refer the salaries of all offi- 
 cers, as judges, secretaries, state prosecutors, &c. 
 
 3. Feudum soldatx was 1 an inofficious or gratuitous feud 1 , 
 consisting of a piece of money (solidus) granted by the 
 king or lord, either as a bounty, or for the tenant's past 
 services. 
 
 4. Feudum habitationis. This consisted of the te- 
 nant's right to dwell in a house belonging to the lord, 
 without the rendition of any rent or service, the same be- 
 ing held by fealty only. 
 
 5. Feudum gar disc. This was an officious feud, and 
 consisted of a pension granted to the tenant in considera- 
 tion of his future defence of a castle. It differed from 
 another species of feud, called castle-guard, in two respects, 
 viz. that in this the castle or land was actually transferred 
 to the tenant by livery of seisin, and that, by the strict 
 feudal law, the castle could not be granted for a longer pe- 
 riod than a year; whereas in the feudum gardirc, the te- 
 nant had no estate whatever in the castle or land which he
 
 Lect. X.] 
 
 OF THE FEUDAL LAW. 501 
 
 was bound to defend. To this feud we may refer the sala- 
 ries at present granted to the governors of garrisons. 
 
 6. Feudum gastaldce. This was also a pension. It 
 was granted by the lord to his tenant for performing the 
 duties of receiver, steward or treasurer. 
 
 7. Feudum mercedis. This was an allowance made to 
 the king's or lord's advocate; and to this we may refer the 
 modern grants to lawyers pro concilio impendendo; or to 
 the king's or queen's attorney or solicitor general. 
 
 These seven species of feuds are said to lie in grant, and 
 not in livery, they being conveyed by improper investi- 
 ture, of which I shall presently speak. They are, more- 
 over, referrible to that class of property denominated incor- 
 poreal, as they consist of mere rights, and not of an estate 
 in any visible and existing thing. Notwithstanding the 
 great variety of feuds existing at the time of which we are 
 speaking, allodial property long maintained its ground in 
 some countries. In Languedoc, during the ninth, tenth, 
 and great part of the eleventh century, property seems to 
 have been entirely allodial: it was the same in Catalonia 
 and Roussillon; and in the Low Countries this species of 
 tenure continued, as we are informed by Robertson, during 
 the eleventh, twelfth and thirteenth centuries.* 
 Qualities and inci- Division V. Having thus cursorily 
 
 dents of feuds, l. no t e d the progress of feudal tenures, and 
 
 Their general quali- 
 
 ties viz. Homage, the general character ot those circum- 
 
 Fealty, Investiture, stances which converted nations of inde- 
 2. Their particular . . 
 
 incidents viz. Re- pendent proprietors into ieudatones; free- 
 
 liefs, Fines for Ali- men w ho claimed their possessions by 
 
 SSwardaWp^ "g ht of their own s words > into vassals who 
 riage, &c. held them by the tenure of obedience and 
 
 fidelity to a superior; we may proceed to describe the 
 
 legal qualities and effects of this feudal relation. 
 
 * 1 Rob. Charles V. !83. Montesquieu, book 31, chap. 3. 1 Hume, App. 
 2. Stewart's Disserta. 119.
 
 502 OF THE FEUDAL LAW. [Lect. X. 
 
 The essence of the contract between lord and vassal was 
 support on the one side, and fidelity on the other: the de- 
 nial or neglect of the first involved the forfeiture of the 
 seigniory; of the second, that of the land. Of such strict- 
 ness was this relation considered to be, that the vassal was 
 bound to make war for his lord even against his own kin- 
 dred, and, during the height of the feudal system, against 
 the king himself. 
 
 The ceremonies used in conferring a fief, indicated the 
 solemnity and strictness of this connexion. These were 
 principally three, viz. Homage, Fealty and Investi- 
 ture. We shall give a brief explanation of these general 
 qualities of feuds. 
 
 1. Of Homage. The uncovered head, in the act of 
 performing homage; the belt uugirt; the sword and spurs 
 removed; the kneeling posture, and the placing of his 
 hands betwixt those of his lord, in which circumstances he 
 promised to become his man from thenceforward, to serve 
 him with life and limb and worldly honour, faithfully and 
 lo}'ally; were strong and significant expressions of the sub- 
 mission and devotedness of the vassal towards his lord. 
 The lord in person only could receive homage; the oath of 
 fealty, on the contrary, might be received by proxy; and 
 though it was indispensable, the ceremony was less solemn 
 and peculiar than that of homage. 
 
 In doing homage, the tenant, whilst kneeling, said, 'I 
 become your man from this day forward, for life, and for 
 member, and for worldly honour, and unto you shall be 
 true and faithful, and bear you faith for the lands that I 
 hold of you; saving the faith that I owe to our sovereign 
 lord the king.' And the lord, whilst sitting, kissed the 
 tenant. 
 
 The foregoing is called homage by tenure, to distinguish 
 it from liege homage, performed by a sovereign prince to 
 another sovereign, for lands held by the one of the other.
 
 Lect. X.] OF THE FEUDAL LAW. 503 
 
 Liege homage includes fealty, and all the services conse- 
 quent upon it. Homage was abolished in England by the 
 statute 12 Charles II. ch. 24. 
 
 2. Of Fealty. The obligations of fealty are also 
 wholly of feudal origin, and are incident to every species 
 of tenure, Frankalmoigne and Tenancy at Will excepted. 
 Like homage, it is an oath taken by the tenant on his ad- 
 mittance, that he will be true to the lord of whom he 
 holds the lands. No one performed homage but he who 
 held the estate as an inheritance; whereas every tenant 
 was bound by fealty, except those, as we have mentioned, 
 who held either in frankalmoigne, or at the lord's will, 
 in neither of which would the duties of fealty be at all con- 
 sistent with the holding. The oath, which was taken by 
 the tenant standing before his lord, and with his right 
 hand on the book, was as follows. 'I, A B, will be to you, 
 my lord C, true and faithful, and bear to you fealty and 
 faith for the lands and tenements which I hold of you; 
 and I will truly do and perform the customs and services 
 that I ought to do to you.' Fealty continues to be inci- 
 dent to every tenure, as in former times, and was in no de- 
 gree varied by the statute of Charles II. It is, however, 
 but seldom, if ever, exacted at the present day. It may 
 be enforced by distress. 
 
 3. Of Investiture. Investiture was the actual con- 
 veyance of the lands &c. to be held as a fief, and was of 
 two kinds, proper and improper; the first being an actual 
 putting of the tenant into possession, by the lord, or his 
 deputy, on the ground, known, in the English law, by 
 the name of Livery of Seisin; the second being a sym- 
 bolical delivery of the possession of the land, by handing 
 to the tenant a turf, a stone, the key of a door, or any 
 other symbol indicative of a transfer of ownership. The 
 terms 'proper, and improper investiture" are constantly 
 used in the feudal jurisprudence of the continent, and arc
 
 504 OF THE FEUDAL LAW- fLcct. X, 
 
 strictly synonymous with the English expressions, livery 
 of seisin in deed, and livery in law. 
 
 Improper investiture was often a necessary substitute for 
 the proper, as the latter, in those turbulent ages, was fre- 
 quently attended with great inconvenience, and was some- 
 times impracticable. Both species were performed in the 
 presence of the pares curise, or the freeholders of the 
 county in which the lands lay. The person to be consti- 
 tuted tenant by improper investiture, humbly prayed the 
 lord to grant him a certain estate; the lord then designated 
 his grant by words or by deed, and accompanied this by 
 the delivery of a ring, a sword, a staff, or by clothing 
 him with a robe, which, being the most usual, gave to the 
 ceremony the name of investiture. After investiture of ei- 
 ther kind, the tenant did fealty, and sometimes homage. 
 In the case of proper investiture, the tenant received the 
 actual seisin. It was effected by going on the lands, and 
 giving to the tenant, while there, a twig, a turf, a key, or 
 hasp of the door, in the name of the whole. This cere- 
 mony being to be witnessed by the pares curix, that is, 
 by the freeholders of the county, it could only be of 
 lands situate in the county to which they belonged. Hence, 
 where the lands lay in more than one county, the ceremo- 
 ny was to be performed in each, and before the pares of 
 each. Improper investiture, though very usual, conferred 
 only a right of action, and not a right of entry; and hence 
 was it that, if the lord made livery of seisin, or proper 
 investiture, to B, of lands which he had previously convey- 
 ed to A by improper investiture, B could not be compelled 
 to yield up the land to A; but A had merely a right of ac- 
 tion, to compel the lord to an excambium, (that is, to a re- 
 compense of a like estate) or damages, in case he had no 
 lands wherewith to indemnify his tenant. 
 
 The duties of the vassal commenced after investiture 
 and fealty, and these duties displayed a singular mixture of
 
 Lcct. X.] OF THE FEUDAL LAW. 505 
 
 the most submissive obedience, and of a high toned and 
 generous loyalty. To divulge the lord's counsel; to con- 
 ceal from him, and much more to assist in the machina- 
 tions of others; to injure his person or fortune; or to vio- 
 late the sanctity of his roof and family; were breaches of 
 the fidelity which he had sworn, and some of them in- 
 volved the forfeiture, or return of the lands, to the lord; 
 as the lord, on his part, lost his seigniory, who violated 
 the daughter of a vassal entrusted to his custody or ward- 
 ship. 
 
 But the feudatory was, above all, bound to military ser- 
 vices to his seignior or lord: he was to adhere to his side 
 in battle; to lend him his horse when dismounted; and to 
 go into captivity as a hostage for him, should he be taken. 
 This military service was uncertain, though generally set- 
 tled by some usage. The tenant of a knight's fee (at 
 least such was the case in England) was bound, if required, 
 to be in the field forty days, and wholly at his own ex- 
 pense. This was extended by St. Louis to sixty, unless 
 when there was an express reservation of a shorter service 
 in the charter of infeudation. But the length of service 
 diminished according to the quantity of land, and the 
 owner of half or the eighth of a knight's fee, served res- 
 pectively but twenty or five days; and the same appor- 
 tionment was observed in case of a commutation of these 
 military services for a pecuniary assessment called Escuage. 
 Men over sixty years of age, public magistrates, and wo- 
 men were allowed to send substitutes to war. A failure in 
 this primary duty involved, in strictness, forfeiture of the 
 feud, which was, however, generally forgiven, and an 
 amercement was inflicted, which the barons paid, not only 
 for their own absence, but that of every knight and squire 
 of their vassals. As to the place of service, the customs 
 were much less certain and uniform; some compelling the 
 
 64
 
 5 5 OF THE FEUDAL LAW. [Lect. X. 
 
 vassal to service in all places, and others limiting it to the 
 boundaries of his lord's domain. 
 
 Having sufficiently explained these general qualities of 
 fiefs, we are now to examine their incidents, or what have 
 been usually called the fruits of tenure. These are the six 
 following; Reliefs, Fines for alienation, Escheats, Aids, 
 Wardship and Marriage. We shall bestow a brief ex- 
 amination on each. 
 
 1. Of Reliefs. We have already mentioned that feuds 
 or benefices, whether held of the crown or of its great 
 vassals, were not originally inheritable, but were only 
 grants for life. These, however, being usually renewed 
 to the posterity of the antecedent possessors, from obvious 
 motives, this constant, or, at least, common renewal grew 
 from custom into a right. It was, nevertheless, natural 
 that the heir should make some acknowledgment for this 
 favour, whilst the lord, on the other hand, would not at 
 any time require much at the hands of the heir, who ap- 
 peared to have so fair a claim to what had been possessed 
 by his ancestor, and probably had been much improved by 
 him. This acknowledgment or gratuity would as naturally 
 be turned by length of time into a right or due of the 
 lord's, and thus the grants for life would oecome indefeasi- 
 ble inheritances, subject, on every death, to a charge on the 
 heir. The sum or other thing thus paid or given by the 
 heir to the lord of the fee, on succeeding to the inheritance, 
 was denominated a relief, from relevia or relevare, because 
 the estate was relieved from the lapsed state into which, by 
 the theory of the feudal law, it had fallen. The person 
 claiming to succeed, had originally no right; but he peti- 
 tioned the lord for a new investiture, and tendered his re- 
 lief and fealty. In process of time the petition and inves- 
 titure were dispensed with, and the heir paid the relief, 
 and succeeded in course to the estate of his ancestor.
 
 Lect. X.] OP THE FEUDAL LAW. 507 
 
 The relief was originally paid in arms, and was at the 
 lord's discretion in amount. This being found inconve- 
 nient, and often oppressive, tenants by degrees procured 
 from their lords more favourable terms, and obtained from 
 them, on their first investiture, a deed, or brevium tes- 
 tatum, which stipulated that the feud should descend to 
 the tenant's sons, sometimes by name, at others, to them 
 generally; and it also denned with sufficient certainty the 
 kind and quantum of the relief to be exacted. On the 
 grants to sons generally it was decided by the feudists, that 
 grandsons were not embraced, as the fair presumption was 
 that grandsons would not be able to discharge the feudal 
 duties at the time of the death of a father without sons. 
 This decision introduced other stipulations into the brevia 
 testata; and in process of time the heirs generally, lineal 
 and collateral female as well as male, were admitted to 
 the feud on the payment of the required relief. 
 
 Some writers have preferred to impute the origin of re- 
 liefs to the rapacity of the lords, who taking advantage of 
 minors, seizing their lands, and receiving these presents as 
 a compromise, at last turned their injustice into a recog- 
 nized and indisputable right. I confess that in regard to 
 lands originally beneficiary, the first account seems far 
 more natural; while the last is more probable as to such 
 lands as were allodial, but surrendered, and granted back 
 as feuds, and which being clearly inheritable from the be- 
 ginning, offered no such reason to the lords as seems, with 
 some justice, afforded by the first. I do not see, however, 
 why we may not assume that reliefs may have arisen from 
 both causes. 
 
 The relief and the other feudal incidents are said to 
 have been established in France towards the close of the 
 tenth century, and were equally known in England after 
 the Norman invasion, about the latter part of the eleventh 
 century. Reliefs were not abolished in England by the
 
 50S OP THE FEUDAL LAW. [Lect. X. 
 
 celebrated statute 12 Charles II. but remain a legal demand 
 to this day, in all cases of original soccage tenure, and of 
 knight's service tenure, converted by that statute into com- 
 mon soccage, provided, in this last case, a quit rent or 
 other rent had been reserved. Hence, at this day, all 
 lands originally held by free and common soccage, pay a 
 relief on the death of every tenant; and soccage lands also, 
 which became so by the operation of the statute of Charles, 
 are liable to the relief if any rent had ever been reserved. 
 It is here proper to remark that Primer Seisin is not to be 
 confounded with relief. The former differs from the latter 
 in that it was payable by the king's tenants in cwpite in 
 addition to the ordinary relief, in case the heir was of full 
 age at the time of the descent. This was a compensation 
 to the crown in lieu of wardship, which the crown would 
 have had, had the heir been a minor. Primer seisin was 
 abolished in England by the statute of Charles II. 
 
 2. Of Fines for Alienation. The feudal tenure was 
 supposed to establish a connexion so intimate between the 
 two contracting parties, as not to be dissolved by either 
 without the other's consent. On the transfer of the lord's 
 seigniory, the tenant testified his concurrence by a ce- 
 remony called in England Attornment. The assent of 
 the lord to the alienation of his vassal's land, was still 
 more necessary. As the feud was presumed to have been 
 bestowed for reasons peculiar to the vassal or his family; 
 and as his heart and arm were bound to his superior, and 
 his service was not to be exchanged for a stranger's, who 
 might be unable to render it; the lord was entitled either 
 to redeem the feud by paying the purchase money, or to 
 claim a part of the value as a fine for its alienation. This 
 was the case in France, and in other countries on the con- 
 tinent; but in England we find that even the practice of 
 subinfeudation, which was more conformable to the ge- 
 nius of the feudal system than alienation, was at length re-
 
 Led. X.] OF THE FEUDAL LAW, 509 
 
 strained by the celebrated statute of 'Quia employes ler- 
 rarumf enacted in the eighteenth year of the first Ed- 
 ward. 
 
 As to the origin of fines for alienation, they no doubt 
 sprung from the strictly reciprocal and feudal relation sub- 
 sisting between lord and tenant. We know that when 
 estates were no longer granted as munera, but as bene- 
 fices for life, the lords were not content with the fealty, 
 and the prospect of the tenant's future services, but de- 
 manded from their vassals, on investiture, an honorary fine. 
 This being once established, there was no difficulty in the 
 lord's successfully exacting a similar fine on every aliena- 
 tion of the feud; for in contemplation of law, there was a 
 new investiture consequent on every change of tenant; 
 and as it was a maxim that no feudal tenant could alienate 
 unless with the license of his lord, this license would hard- 
 ly be given without some present compensation; and this 
 the tenant would more readily acquiesce in, as he, in turn, 
 could exact a similar fine from his under-tenants. Hence 
 the fine for alienation soon became an established fruit of 
 tenure, and continued such in England until it was abo- 
 lished, in the case of subjects, by the operation of the sta- 
 tute of 'Quia emp tores terrarumj which enabled all per- 
 sons freely to alienate their lands, provided the alienee 
 held the land, not of the alienor, but of the alienor's supe- 
 rior lord, and by the same services by which the lands had 
 been holden by the alienor himself. By this statute sub- 
 infeudation was abolished, and alienation introduced: fines 
 for alienation, of course, could no longer be demanded, 
 except those due to the crown on an alienation by the 
 king's tenants in capile; for as the king had no superior 
 lord, he and his tenants were not embraced by the statute 
 of 'Quia emptores.' But this perquisite of the crown 
 was also abolished at the Restoration, by the statute of 
 Charles II. so that fines for alienation are at this day whol-
 
 510 OF THE FEUDAL LAW. [Lect. X. 
 
 ly unknown to English jurisprudence, though on the con- 
 tinent, and in some of the British provinces, they are still 
 exacted. 
 
 3. Of Escheat. Escheat was the reversion to the 
 lord of such feuds as became vacant for want of legal heirs 
 in the posterity or kindred of the first possessor, or feudal 
 grantee. This falling of the feud to the lord who granted 
 it, or to his heirs, was the natural consequence of feuds 
 being granted to tenants in consideration of the perfor- 
 mance of military or other services; for the vassal having 
 left no heir, so that there was no one to perform these ser- 
 vices, the lord who granted the feud was the only person 
 having any just pretension to it. These reversions or es- 
 cheats were a most important fruit of tenure, especially in 
 England, where there was no power of devising them by 
 will. They were still more frequent on account of the 
 forfeitures occasioned by the delinquency of the vassal, 
 which forfeitures were for a year, during the tenant's 
 life, or forever, according to circumstances. 
 
 Under the rapacity of kings, absolute forfeitures soon 
 came to prevail; and by the doctrine of the corruption of 
 blood, the heir was effectually excluded from deducing his 
 title through an attainted ancestor; and thus the estate 
 would vest as absolutely in the lord, as if there had been 
 an escheat ])ropter defectum sanguinis, or, in other words, 
 as if the tenant had actually left no posterity or relatives 
 whatever. 
 
 4. Of Aids. This fruit of tenure deserves some atten- 
 tion, as it was the seed from which sprang the taxation of 
 modern times. These aids were sums of money which, 
 under certain circumstances, the lord was entitled to de- 
 mand of his vassal. Though they varied with local cus- 
 toms, or depended on the tyrannous caprice of the feudal 
 lords, there were three kinds universally acknowledged, 
 both on the continent and in England, and these were, 1,
 
 Lect. X.] OF THE FEUDAL LAW. 511 
 
 to enable the lord suitably to marry and portion his eldest 
 daughter; 2, to make his eldest son a knight; and 3, to 
 redeem the lord's person from captivity. Aids of all kinds 
 were oppressive, not only from the uncertainty of their 
 amount, but from the circumstance that the lords some- 
 times demanded novel and unexpected aids, in order to 
 meet their private exigencies; as to enable them to pay 
 their debts, to discharge their reliefs to their superior 
 lords, or to defray the expenses of some sudden military 
 expedition, &c. These capricious exactions becoming at 
 length an intolerable grievance, it was remedied in Eng- 
 land by the statute of Magna Charta, the twelfth chapter of 
 which provided that the king should take no aid without 
 the consent of parliament, and that lords should demand no 
 other aids than the three customary ones, viz. those ac- 
 knowledged ones which I have just enumerated. The 
 other evil to which I have alluded, was also remedied by 
 the statute of Westminster 1, which denned the amount to 
 be paid for making the lord's eldest son a knight, and for mar- 
 rying his eldest daughter, and restricted it to twenty shil- 
 lings for every knight's fee of land held by the tenant. 
 The amount of the aid to ransom the lord's person was ne- 
 cessarily permitted to remain undefined. Besides these 
 aids, there were several others known to the feudal juris- 
 prudence, at least of the continent. In France an aid was 
 demanded for the lord's expedition to the Holy Land, for 
 marrying his sister or eldest son, and for paying a relief 
 to his suzerain or chief lord. These aids became as op- 
 pressive on the continent as they had been found in Eng- 
 land, and were from time to time variously modified by 
 local customs, and baronial or other partial legislation. But 
 in England they were wholly abolished by the statute 12 
 Charles II. and the necessities of the state have substituted in 
 their stead a system of taxation which, though more certain, 
 has been found in that country scarcely less burdensome.
 
 512 OF THE FEUDAL LAW* [Lcct. X. 
 
 5 and 6. Of Wardship and Marriage. The intimate 
 connexion between these two fruits of tenure renders it 
 proper that we should consider them together. 
 
 If we advert to the relation between lord and vassal, we 
 perceive at once that when estates became hereditary, the 
 lord was as much interested in securing to himself the 
 faithful discharge by a competent tenant of all the feudal 
 duties, as the vassal was in having his hereditary rights 
 fully recognized and preserved. The most effectual mode, 
 then, of protecting the interest both of the lord and the 
 heir, was to place the estate and person of the heir under 
 the custody of the lord, until the heir came of proper age 
 to take care of them both, and to perform iu person all 
 that the feudal bond required of him. 
 
 Wardship, then, was the lord's right to the care of a 
 minor's person, and to the profits of his estate. Marriage 
 was the lord's right of tendering to female wards a person 
 in marriage, whom the ward could not reject without for- 
 feiting to her lord as much as any one would give to him 
 for the alliance. These general definitions are sufficiently 
 accurate for our present purpose; but we shall find that 
 the custody of the person did not uniformly follow that of 
 the estate, and that male wards were also sometimes liable 
 to the dictation of their lords as to whom they should 
 marry. The rights of wardship and marriage obtained 
 only in Germany, Normandy and England. 
 
 As lands in tenure were held either by knight's service 
 or soccage service, so wardship (or guardianship, which 
 means the same thing,) was of the same two kinds; for 
 there were guardians and wards in chivalry, and guardians 
 and wards in soccage. Where the lands were held by mi- 
 litary service, the heir was in wardship until he attained 
 the age of twenty-one years; and this was called wardship 
 in chivalry. If, therefore, a tenant holding land by 
 knight's service, died leaving his heir under that age, the
 
 Lcct. X.] OF THE FEUDAL LAW. 513 
 
 lord had the guardianship of his lands and person till he 
 arrived at age, or until he died, and in the meantime the 
 lord appropriated to his own use all the profits of the es- 
 tate, being obliged, however, to maintain and educate the 
 heir in a manner suitable to his rank and condition. The 
 profits of the estate were allowed to the lord without any 
 obligation on him to account, and this was conceded on the 
 principle that the profits were only equivalents for the du- 
 ties, or were as a compensation to the lord for his care in 
 the maintenance and education of the ward, and also to 
 enable the lord to answer to the king, or other superior 
 lord, what might be due to them. 
 
 The custody of the heir's person was conferred on the 
 lord because the law considered the solemn bond between 
 him and his vassal a sufficient assurance of the ward's 
 safety; and further, because the lord was not only the 
 most competent to instruct him in the art of war, but was 
 likewise greatly interested that he should be thoroughly 
 instructed in it. But this custody of the minor's person 
 was only in case the father was not living; for if a minor 
 inherited lands during the lifetime of his father, which 
 might easily occur, the father was guardian by nature, 
 which superseded the personal guardianship in chivalry. 
 Thus, for example, where A is grandfather by the moth- 
 er's side, B is father, C is mother, and D is son; if A, 
 holding lands by knight's service, dies, and C is dead, D 
 shall inherit the land of his grandfather A, but the ward- 
 ship shall be divided. The grandfather's lord shall take 
 the lands in wardship, but B, the father, shall have the 
 wardship of his son's person. Again; if a lord granted a 
 military feud to the son of A, and this son died without 
 issue, whereby the lands descended to his brother, a minor, 
 the lord should have the custody of the land, and A, the 
 father, would have the custody of the person. So, also, if 
 the king had conferred knighthood on a minor, the guar- 
 65
 
 5]4 • OF THE FEUDAL LAW. [Lect. X. 
 
 dianship ceased both as to the person and the land. In 
 England this principle of ttie feudal law was so strongly 
 objected to by the lords, that parliament passed an act for 
 the continuance of the wardship in lands notwithstanding 
 the minor's subsequent knighthood. 
 
 When lands descended to a female ward, as she could 
 never be called on for personal services, she was allowed to 
 furnish a substitute when she obtained her majority; but 
 whilst in wardship, the lord held her lands on the same 
 terms as in male wardships, except that the wardship ter- 
 minated at her age of fourteen, which in England was ex- 
 tended by act of parliament to sixteen, if the heiress re- 
 mained unmarried till that time; and until twenty-one. and 
 even longer, if she had rejected a suitable offer of mar- 
 riage, made to her by her lord. 
 
 There is one circumstance very peculiar in the wardship 
 both of knight's service and of soccage hinds: I allude U 
 the anomalous nature of the interest or estate in wardship. 
 The feudal law, in all other cases, carefully distinguished 
 the jus prqprietatis in lands, (with the consequent right 
 of reversion or escheat, together with the claim to services 
 reserved to the lord, the whole of which were embraced 
 by the word seigniory) from the jus posscssionix, with the 
 pernancy of the profits, which resided in the tenant. Hut 
 in the case of wardship, all of these appear to have been 
 blended, and the propriety and possession were united in 
 the lord, and, apparently, the heir had no estate, or, at least, 
 he had neither seigniory, possession nor profits. Though 
 the law restricted the duration of the lord's interest to the 
 number of years which should intervene between the te- 
 nant's death and the heir's majority, yet it. vested tie 
 in the minor heir sub modo, that is, in such a manni 
 gave him, as we have said, neither propriety, p< 
 nor profits. Still the lord's estate was not a fee, a freehold, 
 nor even a term fin years; but it was a species of chattel in-
 
 J-eet. \.; OP THE FEUDAL LAW. 515 
 
 teresl sui generis. The lord could alienate without livery 
 of seisin, and without license, and on his death, during the 
 heir's minority, the lands descended to the lord's execu- 
 tors, and not to his heir. Hence, the estate in chivalry, 
 both as to the lord and heir, was entirely anomalous, there 
 being features in it which appertain to no other estate 
 known to the law. 
 
 By the charter of Henry I. of England, wardship (which 
 had grown to be the most oppressive of all the feudal inci- 
 dents) was relinquished by the crown, and the heirs of 
 crown vassals were during their minority restored in a 
 great degree to that allodial property in their lands which 
 had so generally obtained in the early history of the feudal 
 ages. As the crown had not the lands in wardship, and as 
 the minor was under no obligation to serve his lord either 
 in person or by substitute, the king, by relinquishing 
 wardship, restored the lands to the state of pure allodium, 
 during the heir's minority. This state of things continued, 
 however, for a very short period; for in the reign of king 
 John, wardship in capite had become so firmly reestablished 
 that the crown vassals only aimed at procuring some regu- 
 lations to mitigate the hardships of this most vexatious of 
 the royal prerogatives. We may form some idea of the 
 great value of this fruit of tenure in that country, when we 
 are informed that Henry III. granted the wardship of Gil- 
 bert de Umfreville to Simon de Mountford for 10,000 
 marks; a sum equivalent at this time to perhaps £200,000. 
 We have stated that the lord had the custody both of the 
 person and lands of his ward in chivalry: but this was the 
 case only in England; for in France and Germany the land 
 was committed to the care of the minor's next heir, and 
 his person to that of the nearest of blood who could not 
 inherit the lands; as we shall presently see was the case in 
 England, both as to the land and person, in case of soccage 
 tenures.
 
 516 Of THE FEUDAL LAW. [Lect. X. 
 
 Having dwelt sufficiently on wardship in chivalry, we 
 proceed to inquire briefly into the nature and history of 
 Wardship in Soccage. 
 
 We have seen that wardship in chivalry was the lineal 
 offspring of the feudal relation. Public policy demanded 
 that the ward should receive a military education, and that 
 his estate and person should be placed in the charge of that 
 lord whom he might be called to serve and defend. These 
 considerations, however, did not obtain in the case of the 
 descent of soccage lands to minor heirs; for on the descent 
 of such lands, the lord was only interested in knowing 
 that the estate was preserved from waste or decay. We 
 consequently find that in England the lord had the ward- 
 ship neither of soccage lands nor of the person, but that 
 the charge of both was given to the minor's next of kin, 
 who by no possibility could inherit the estate. Thus, 
 for example, if soccage lands descended to A ex parte 
 maternd, none of his maternal relatives would be entitled 
 to the guardianship of the land or person, but the wardship 
 would vest in the next of blood ex parte paternd. 
 
 The following are some of the leading doctrines of the 
 English law as to this species of wardship; and they will 
 generally be found to originate in feudal principles. 
 
 1. Soccage guardianship or wardship sprung wholly 
 from tenure; and yet it is now said to embrace heredita- 
 ments which do not lie in tenure, and even copyhold lands 
 and personal estate. Of this opinion is Mr Hargrave, the 
 learned annotator on Lord Coke's 1st Institutes,* contra- 
 ry to that advanced by Chief Justice Vaughan.t 
 
 2. Soccage wardship takes place only on a descent. It 
 was at all times conceded that wardship in chivalry was 
 consequent only on a descent of lands, and never on 
 a purchase; but it had been supposed by some that if a 
 
 * Coke upon Littleton, 91 b. note 9, 116. a. 
 i Vaughau's Reports, 1S6.
 
 Lect. X.] OF THE FEUDAL LAW. 517 
 
 minor should acquire soccage lands in any other way than 
 by descent, he would be in wardship. This doubt was 
 not settled to the contrary till the 29th of Charles II.* 
 
 3. As soccage wardship belongs to the next of kin 
 (without distinction as to whole or half blood) who can by 
 no possibility inherit the lands; if there should happen to 
 be two or more persons in equal degree, and of course 
 equally entitled, he who first gains the minor's person, 
 shall have the wardship of his lands also; the maxim in 
 this case being, "?7ielior est conditio possidentis." 
 
 4. But if the conflicting claimants in such a case be the 
 minor's lineal ancestors, and the heir's person has not been 
 gained, the law prefers the father, or other male ancestor; 
 and if they be his collateral relatives, the eldest brother 
 or sister is preferred. 
 
 5. If, however, the minor inherits lands both ex parte 
 putemu et maternd, it being then very probable that none 
 of his kin can be found who would be incapable of inhe- 
 riting, the law permits the custody of the person to re- 
 main with him who first gains it; and the wardship of the 
 paternal lands vests in the next of kin ex parte maternd, 
 and so, vice versa, as to those descending from the maternal 
 line. 
 
 6. Should the minor so inherit the lands as to let in the 
 paternal and maternal heirs successively, preferring, how- 
 ever, the former to the latter, (which would be the case 
 where lands are inherited from a brother who had pur- 
 chased the estate) it has never yet been judicially settled 
 in such a case, who would be entitled. Here, as there is 
 no next of kin who cannot inherit to the minor, we pre- 
 sume the next male heir ex parte pat emu would have 
 the better claim ; unless the principle of gaining the infant's 
 person should be allowed in this, as in some other cases. 
 
 * 2 Modern Report?, 176."
 
 518 01 THE FEUDAL LAW. [Lect. X. 
 
 7. Soccage wardship is not assignable, forfeitable or in- 
 heritable, as guardianship in chivalry was: for the former 
 is a personal trust for the infant's benefit, whereas the lat- 
 ter was always regarded as a valuable estate, mainly for the 
 lord's benefit. In case, therefore, of the death or incapa- 
 city of a soccage guardian, the wardship devolves on 
 others, according to the rules which have already been 
 stated. * 
 
 8. A guardian in soccage is a mere trustee, who is held 
 to a strict account to his ward when he arrives at age; 
 whereas the guardian in chivalry received all the profits of 
 the estate, after suitably educating and maintaining his 
 ward. 
 
 9. Soccage wardship terminates when the heir attains 
 the age of fourteen, at which time he may enter into the 
 lands, or appoint a new guardian, or continue the old one. 
 It has been contended by some authors, that this guardian- 
 ship does not determine till the age of twenty-one, unless 
 there be another guardian ready to succeed, elected b} T the 
 minor, or chosen by the father under the power of appoint- 
 ing a testamentary or other guardian, conferred by the 
 statute 12 Charles II. t At all events, if no testamentary 
 guardian be appointed, the court of Chancery will, on ap- 
 plication, appoint a guardian over the person and property 
 until the heir attains the age of twenty-one. 
 
 10. If after the age of fourteen the minor does not enter, 
 and no guardian is chosen by him or his father, but his 
 former guardian continues in possession, receiving the pro- 
 fits, it was at one time a question of considerable doubt, 
 how the minor is to compel the guardian to respond for 
 receipts after the age of fourteen, seeing that the guardian- 
 ship had legally determined at that period. It was con- 
 ceded that the action of account would not lie against him 
 
 * Yaughan's Reports, 181. PlowderTs Reports, 293. 
 ( Andrew's Reports. 313.
 
 Lect. X.] OK THE FEVDAL LAW. 51f» 
 
 as guardian. It was also admitted that laches or neglect 
 should not be imputed to the infant, who, though of an age 
 in which he was competent, not only to appoint a new 
 guardian, but also to contract marriage, yet would be pre- 
 sumed by the law unacquainted with matters of account, 
 and other legal rights. In order, therefore, fully to pro- 
 tect the minor in such case, the law resorted to a reasonable 
 fiction, and supposed that after the age of fourteen he had 
 appointed his former guardian his bailiff or receiver; and 
 therefore gave to the infant an action of account against 
 him, not indeed as guardian, but as his receiver. 
 
 11. If the guardian in soccage neglects the estate, and a 
 stranger enters on the lands, and receives the profits, it has 
 been held that such person shall not be regarded as a 
 wrongdoer, or, as the law would call him, an abator, which 
 would have been the case had the heir been of full age. 
 But, on the contrary, the law will presume that the stran- 
 ger's act proceeded from kindness, and in order to remedy 
 the neglect of the guardian. By this fiction, moreover, 
 the stranger is supposed to be a guardian, and the heir, after 
 he has attained the age of fourteen, may charge him as such 
 in an action of account, and recover all the profits received 
 by the stranger. 
 
 12. In the last place, a guardian in soccage is liable to the 
 strictest account to his ward; not only of all the profits ac- 
 tually received, but of those which he ought to have re- 
 ceived. This was strongly illustrated in the case of the 
 valor maritagii, which, if received by the guardian, was 
 to be accounted for; and if none were received, he was 
 personally responsible for what he might have received. 
 
 The next feudal incident on which we have to remark, 
 is that of Marriage. We have' already stated that Mari- 
 tagium was anciently the lord's right to tender a husband 
 to his female ward, holding lands by the tenure of knight's 
 service, and also of disposing of her in marriage, in consi-
 
 520 0F THE FEUDAL LAW. |Lcct. X. 
 
 deration of such a sum of money, or any thing else, as he 
 could obtain from the intended husband or his relatives. 
 This became a very profitable fruit of tenure, and a very 
 oppressive one to the tenant. 
 
 After feuds had become descendible to females, the same 
 necessity which forbade vassals from alienating without the 
 lord's consent, (viz. to prevent the introduction into the 
 feudal society over which the lord presided, of any person 
 who might be hostile to his interests,) also rendered it es- 
 sential that his female tenants should not introduce such 
 persons by their indiscreet or unsuitable marriages. But 
 this motive, so important in those perilous times, soon 
 gave way to others of a very different kind. The female 
 wards were in fact exposed to the highest bidder. In 
 many cases, the lord being unwilling to yield up the land 
 as early as his ward's age of fourteen, declined making any 
 offer of marriage, or placed so high a price on her as ex- 
 cluded the possibility of her marrying. At first, also, this 
 right of marriage was confined to female heirs; but in the 
 reign of the third Henry, the lords, by a forced construc- 
 tion of Magna Charta, which enacted that 'heirs should be 
 married without disparagement,' contended that this word 
 'heirs' embraced males as well as females; whereas it is 
 manifest the statute intended to soften the former law, 
 which related only to females, and merely to enact that 
 such wards, when given in marriage by their lords, should 
 not be disparaged; and by no means to confer a new right, 
 or to embrace those who had never before been subjected 
 to this feudal restriction; especially when we know that 
 the lord's right to interfere in the marriage of his female 
 tenants, was originally introduced for no other purpose 
 than to secure him against husbands selected by his female 
 wards from hostile clans. 
 
 Numerous laws were made from time to time to correct 
 the cruel abuses of this privilege Marrying without the
 
 Lect. X.] OF THE FEUDAL LAW. 521 
 
 lord's consent induced, at one period, an absolute forfei- 
 ture of the ward's estate to the lord. But by the statute 
 of Merton, the penalty was fixed at double the value of 
 the marriage, to be received out of the profits of her land, 
 which, for that purpose, might be retained after her age of 
 twenty-one, and until paid. By the same statute it is also 
 provided, that if the lord should have his ward married 
 to her disparagement, she being at the time under fourteen, 
 he should forfeit his wardship; and that if the ward should 
 merely refuse a suitable offer, but did not subsequently 
 marry against her lord's consent, she should then forfeit 
 only the single value of the marriage.* I am not disposed 
 to pursue this obsolete subject any further, especially as 
 marriage and wardship were wholly abolished in England 
 by the statute 12 Charles II. by reason of the conversion 
 of knight's service into free and common soccage. 
 
 r ,, Division VI. Before I proceed to 
 
 Causes of the rise ^xrxo^ x t 
 
 of the Landed Aris- the main object of the present division of 
 
 tocracy, and of the sub j ect wh ich is to inquire into the 
 
 orders and ranks of J J 
 
 Citizens. Privileges sovereign privileges claimed and exer- 
 
 exercised by lords c j ge( j by the great f eu( ] a l l orc l s within 
 
 within their fiefs — . _ „ , ,, , 
 
 viz. Coinage of mo- their respective fiefs, I shall endeavour 
 ncy, Private war, Tax- ^ trace the rise and progress of the feu- 
 
 ation Ration, aristocracy and f that distinction 
 
 and Judicial junsdic- J > 
 
 tion. between the high and low born which 
 
 affected, not only the personal respect, but the legal and 
 constitutional rights of both. 
 
 This distinction was certainly unknown to the Franks, 
 among whom every man was a soldier, and every soldier a 
 
 * By the word 'disparagement,' used by the. statutes of Magna Charts 
 and of Merton, is meant an unsuitable alliance, which Lord Coke, with 
 his usual quaint and methodical minuteness, divides into four classes. 
 This disparagement, for which the heir may refuse to marry the person 
 tendered to her, may be, according to the learned author; 
 
 1. Propter vitium animi; as where he is an idiot or lunatic. 
 
 2. Propter vitium sanguinis; as if the husband offered be a villain: the 
 
 G6
 
 522 OF THE FEUDAL LAW. [Lect. X. 
 
 freeman; and who were all, not only independent proprie- 
 tors, but electors of the chief or king under whom they 
 went forth to conquest; a state of civil and political rights 
 extremely different from the constitution of a feudal state, 
 whose various ranks, together with their respective privi- 
 leges, we shall hastily notice. 
 
 The feudal aristocracy doubtless owed its commence- 
 ment to individual wealth, and this was generally the lot 
 of the beneficiaries of the crown, who partaking not only 
 of the royal bounty, but of the royal counsels, and the dig- 
 nities of the state; gradually rendering their fiefs heredi- 
 tary; and but seldom alienating, nay even prohibited to 
 alienate, their estates; were thus kept conspicuous in the 
 public eye, and added, every generation, to their impor- 
 tance. Territorial wealth, also, is the best suited to impart 
 influence to its possessors. The counts and dukes, usur- 
 ping their dignities as hereditaments, were at the head of 
 these dignitaries, and often assumed titles from their coun- 
 ties or dutchies: In this they were imitated by the inferior 
 barons, who took their names of distinction from some 
 town or castle. The feudatories too, whether small or 
 large, were all soldiers, the source of no little respect in a 
 turbulent age; and thus it was that the mixed considera- 
 tions of birth, tenure, occupation and wealth gave durable 
 respect and power to particular families. 
 
 This was ascertained and strengthened yet more by the 
 adoption of surnames, and of armorial bearings, which 
 probably took place, the firsr in the eleventh century, 
 when the nobility began to add the names of their estates 
 
 child of a person attainted of treason or felony; a bastard; an alien, or the 
 child of an alien! a haberdasher! &c. 
 
 3. Propter vitium corporis, as monsters; deformed or diseased persons; 
 squinters! persons blind, deaf or dumb, consumptive, palsied or impotent. 
 
 4. Propter jacluram privilegii; as where Ihc individual offered had been 
 once married. Finally, the offer must be competens marilagium absque dh- 
 iparagalone.
 
 l*Ct X.] OF THE FEUDAL LAW. 523 
 
 to their own, and to transmit to their posterity any fortui- 
 tous appellation they might acquire; the second, by private 
 families at least, about the commencement of the thir- 
 teenth century. 
 
 The origin of armorial bearings is variously explained. 
 Emblems somewhat similar had been very generally used; 
 but the introduction of these bearings has been attributed, 
 sometimes to the tournaments, wherein champions were 
 distinguished by some striking device; sometimes to the 
 crusades, where the mixed multitude of the armies required 
 distinctive tokens; and, lastly, by Villaret they have been 
 attributed to the separation of the same family by settle- 
 ments in Palestine, which rendered these bearings neces- 
 sary for the preservation of the family connexion. The 
 loftiness of birth being thus rendered more clearly tracea- 
 ble, the high born and the ignoble were effectually distin- 
 guished. On the former were conferred all offices of trust 
 and power, except legal offices. Originally, a plebeian 
 could not possess a fief; though in France the land itself 
 carried an ennobling quality, at least after being possessed 
 for three generations. Gentlemen never exercised any 
 trade; children, in order to inherit any territory held 
 immediately of the empire, must have been born of no- 
 ble parents on both sides; and though in France gen- 
 tlemen were held noble for the purpose of ' inheritance, 
 and exemption from tribute, they could be received into no 
 order of chivalry. All baronies were originally by tenure 
 of land; but the kings of France, before the close of the 
 thirteenth century, assumed the privilege of creating no- 
 bles without regard to tenure of land; an innovation of 
 great influence in diminishing the power of the territo- 
 rial aristocracy, and strengthening that of the throne. 
 
 Thus, then, ail those who in France held lands imme- 
 diately of the crown, whatever title, (as duke or count, 
 for instance,) they might bear, were comprised in the or-
 
 524 OF THE FEUDAL LAW. [Lcet X. 
 
 der of barons. These were originally the Pares or peers 
 of the king's courts; they had the right of carrying their 
 own banner in the field, and possessed the higher as well 
 as the lower territorial jurisdiction. To these correspond 
 the Vavassores Majores, and Capitanei of the Empire. 
 Subordinate to them were the vassals of this high nobility, 
 termed Vavassors on the continent, and known sometimes, 
 though rarely, by that name in England. The Chatelains 
 were also Vavassors; but having fortified houses, and am- 
 pler rights of territorial justice, they were somewhat higher 
 in the scale of tenure. When the personal nobility of chi- 
 valry obtained, the vavassors who obtained knighthood 
 were called Bachelors; such as had not that honour, 
 Squires. The Prelates and Moots were also included 
 in the ranks of the feudal nobility: they swore fealty to 
 the king or lord, received homage of their own vassals, 
 and exercised the same authority and jurisdiction as the 
 lay lords; and, though not originally obliged to military 
 services, they partook of the martial spirit of the times. 
 To avoid, however, this military service, or the pecuniary 
 commutation of it, the prelates introduced the tenure of 
 frankalmoigne, which includes no obligation but that of 
 saying mass for the benefit of the family of the grantor of 
 the feud. 
 
 The classes below the gentry were distinguished into 
 Freemen and Villains: of the first were the inhabitants of 
 chartered towns, called Citizens and Burghers; the Soc- 
 cage?'S, whose tenure was free, though not noble; and last- 
 ly, the tenants for life, called Freeholders, from whom 
 sprang the yeomanry of England. On the continent, the 
 mere freemen were not so distinguishable, because, from 
 their slight estimation, they were often confounded with 
 the villains; yet it is evident they existed there. 
 
 The second class, viz. the villains, though all alike 
 obliged to remain on their lord's estate; though precluded
 
 Lect. X.] OF THE FEUDAL LAW. 525 
 
 from selling the lands on which they lived; and though 
 the lord might at any time reclaim their persons; still 
 differed in their actual conditions. One kind, called Serfs 
 in France and Germany, could neither acquire nor inherit 
 property, and were themselves liable to be conveyed to 
 strangers, apart from the land. These, in England, were 
 called villains in gross. Their services were not only in- 
 determinate, but ignoble; such as the felling of timber, 
 the carrying of manure, the repairing of roads, &c. The 
 others, who were merely villains, were bound only to fixed 
 duties and payments, generally of the same description; but 
 according to the opinion of some writers, their estates es- 
 cheated, on death, to their lord. The children, in both 
 these degrees of servitude, followed the condition of the 
 mother, except in England, where they followed the fa- 
 ther's, the well known rule, partus sequitur ventrem, 
 having been rejected in that country. Such were the res- 
 pective personal privileges of the gentry and of the low 
 born; and it is comprehensible enough how, when great 
 wealth and high dignities were superadded to those of the 
 great barons, they acquired, especially in France, that large 
 territorial influence which in fact converted them into so 
 many petty princes. 
 
 Having dwelt sufficiently on the rise of the feudal 
 aristocracy, and of the various ranks in society, I shall, as 
 before promised, examine the more important of those pri- 
 vileges which the lords or great feudatories exercised with- 
 in their fiefs. These may be classed under the five follow- 
 ing heads; Coining money; Private War; levying Taxes; 
 Legislation; and Judicial Jurisdiction. How extremely in- 
 dependent these feudatories were of the crown, will ap- 
 pear from a short examination of these sovereign powers. 
 
 1. They possessed, and of course abused, the important 
 prerogative right of coining money. This right, however, 
 was always very reluctantly accorded to them by the
 
 526 OP THE FEUDAL LAW. [Lect. V. 
 
 crown; for we find that by a capitulary, even as early as 
 Charlemagne, the circulation of any money which had not 
 been stamped at the royal mint, was expressly forbidden. 
 About the beginning of the tenth century, the barons is- 
 sued money with no other mark or stamp than their own. 
 But Louis IX. politically enacted that the royal money 
 should circulate within the domains of the barons, concur- 
 rently with their own; and Philip the Fair established of- 
 ficers of inspection in every private mint. No subject 
 in England ever enjoyed or claimed the right to coin mo- 
 ney without the royal stamp and superintendence, though 
 they sometimes usurped the privilege in fact. 
 
 2. The right of waging private war is the next privilege 
 which claims -our attention. This customary right arose 
 out of the manners of the ancient Germans, among whom 
 revenge of injuries was a private and personal right. After 
 their settlement in the provinces of the Empire, the causes 
 of quarrels multiplied; and their fury and extent augment- 
 ed proportionably with the progress of the beneficiary es- 
 tates, which placed the vassals under the same obligation 
 of revenging the wrongs of their lords, as once had been 
 confined to their kindred. Such was the weakness, too, 
 of the royal authority, and of the law, that the feudal no- 
 bles might in truth be regarded as so many persons in 
 a state of nature. Conformable to this idea was the 
 restriction of the right of private war to the noble or gen- 
 tle of birth; for the disputes of slaves, villains, inhabitants 
 of towns, and freemen of inferior condition, were to be 
 decided only in courts of justice: nay, even the disputes of 
 gentlemen with the base born- were to be thus decided, 
 and not by personal combat. The dignified ecclesiastics, 
 however, claimed this right, but exercised it by their ad- 
 vocates or vidames, persons of rank and reputation who 
 espoused their cause, and fought their battles. It was even 
 the care of the laws to determine to what degrees of kin-
 
 Lect. X.] OF THE FEUDAL LAW. 527 
 
 dred the right extended, and to enforce the kindred to take 
 part; and the right of private war, and the obligation of 
 uniting in it, were ascertained by the same degrees of affi- 
 nity and consanguinity within which the church prohibited 
 the marriage of persons. 
 
 Nothing could be more calamitous than the consequences 
 unavoidably flowing from this barbarous privilege. Being 
 nourished by feudal obligations arising out of the tenure of 
 lands, we even at this day speak of feuds as synony- 
 mous with deadly quarrels; the land and its tenure 
 giving name to one of the best established, but most fatal 
 of the privileges we are considering. What methods were 
 taken to lessen, and finally to abolish this right, so fatal to 
 morals and the peace of society, will be seen hereafter. 
 
 3. The next privilege was that of levying taxes. The 
 kings of France, in regard to taxation, stood on no higher 
 grounds than their own nobles. Aids, reliefs, the rights 
 of toH, of customs, alienage, (aubaine) even the enjoyment 
 of the temporalities of ecclesiastical benefices, were pos- 
 sessed by them alike. The king himself was merely a 
 great feudatory; and if he exacted money, particularly 
 from the inhabitants of towns, the barons and suzerains did 
 the same in their own fiefs. The system of taxation, pro- 
 perly so called, was a modern invention, the joint offspring 
 of rapacity and necessity. 
 
 4, We are now to speak of a most important privilege 
 of the feudal lords, viz. that of legislation. One of the 
 most striking features in the feudal policy of France, was 
 the absence of nearly all supreme legislation. After the 
 firm establishment of fiefs and their incidents, this was 
 trulv the case in that country, during the period of nearly 
 three hundred years. The barons were the legislators of 
 their baronies; and though there were assemblies of the 
 nation, called the parliaments of the Champ de Mars, 
 from their being held in the month of March, and in
 
 528 OF THE FEUDAL LAW. [Lcct. X. 
 
 which it is probable that every allodial proprietor had a 
 right to vote, yet these national assemblies ceased to be 
 held about seventy years after the death of Charlemagne. 
 The latest capitularies made in these assemblies, are those 
 of Carloman, in the year 8S2. Thenceforth the feudal 
 lords were the legislators, as well as the judges of their 
 dominions; and though it is not uncommon to find ordi- 
 nances for the regulation of large districts comprising many 
 baronies, these were in fact compacts of several indepen- 
 dent powers, entered into for mutual convenience, and not 
 emanations from any general depository of the legislative 
 power. 
 
 5. Connected with the privilege of legislation, is that of 
 judicial jurisdiction, which came to be exercised to a great 
 extent by the barons within their respective fiefs. Among 
 the Franks, Lombards and Saxons there seems to have 
 been pretty much the same modification of the judicial au- 
 thority. Every ten families had a magistrate, elected by 
 themselves, to decide on their rights and their disputes. 
 This was 4110 Decamis of France and of Lombardy, and the 
 Tithingman of England. Next was the Centenarius 
 or Hundredary, chosen by a hundred families, and of su- 
 perior authority. The jurisdiction of these petty magis- 
 trates was generally restricted to less important matters; 
 for in the weightier ones, or in appeals from the lower ju- 
 risdictions, the Count was the judge. He was appointed by 
 the sovereign, but he was both assisted and checked in his 
 administration of justice, by assessors called Scabini, who 
 held their office by election, or, at least, by the consent of 
 the people, and formed a kind of jury, though resembling 
 more closely the judices selecti who sat with the Roman 
 Praetor. An ultimate appeal lay to the Count Palatine, an 
 officer of the royal household; and causes were some- 
 times decided by the sovereign himself. Charlemagne, to 
 prevent abuse and mal-administration, appointed Missi Tie-
 
 Lect. X.] OF THE FEUDAL LAW. 52 9 
 
 gii, judges in eyre, who held assizes from place to place. 
 What is here said as to the judicial arrangements in France, 
 applies in some degree to England and the Empire, in 
 which countries inferior jurisdictions of a similar charac- 
 ter obtained. 
 
 This original model of judicature was gradually sup- 
 planted by the territorial jurisdiction of the barons. We 
 early find inserted in grants of land, an immunity from the 
 jurisdiction of the royal judges, and that of the feudato- 
 ries must naturally have taken its place. The allodial 
 tenants were exempted of course from all but the king's 
 jurisdiction; but when sub-infeudation became almost uni- 
 versal, the territorial jurisdiction must have become pro- 
 portiqnably so. Even the count himself, becoming the 
 suzerain rather than the governor of his district, altered his 
 tribunal to the feudal model. Those of the sovereign, for- 
 gotten like his laws, gave place to manorial courts, in 
 which the rules of evidence were superseded by the judi- 
 cial combat, or by some other appeal to what was called the 
 judgment of God; and the laws were reduced to customs, 
 as various as the numerous baronies.* 
 
 * The great number of territorial jurisdictions which obtained, not only in 
 France, but in the Netherlands, Germany &c. necessarily originated a great 
 diversity of legislation, customs, and judicial procedure. Frequent colli- 
 sions arose from this diversity, and caused the occurrence of questions of ex- 
 treme interest respecting jurisdiction. A marriage, for example, valid in one 
 place, might be void in another; a divorce granted by one tribunal, might 
 not be respected in a second; a will executed in conformity to one system 
 of laws, might not correspond with the requisitions of another; a contract 
 might be affected by the law either of the place where it was made, or 
 that in which it was litigated, or that in which it was designed to be exe- 
 cuted, or that in which the subject of the contract was situate, or, finally, 
 that of the domicil of one or both of the contracting parties: and so as to 
 the remedy, and various pleas, which might be resorted to in one tribunal, 
 and not in another. These are questions of intrinsic difficulty, on which 
 the Continental jurists have displayed surprising ingenuity and learning, 
 unhappily liUle known to t'.ngli^h and American lawyers. The vast vari- 
 67
 
 530 OV THE FEUDAL LAW. [Lect. X. 
 
 I forbear to discuss the various degrees in which this 
 right of judicature was enjoyed by the owners of fiefs, and 
 which, in France, were divided into the high, the middle, 
 and the low jurisdictions; and shall conclude this subject 
 by remarking that it was rendered by one circumstance 
 less tyrannical in its operation than at first view might be 
 supposed: this was, that it was generally exercised by deputy. 
 The counts, while yet officers of the crown, had their vis- 
 counts; the ecclesiastical lords, prohibited by the canons 
 from inflicting capital punishment, and ignorant, it was pre- 
 sumed, of the laws of civil rights, had their advocates or vi- 
 dames; and the lay lords had their vicarii, bailiffs, provosts 
 and sub-seneschals. Indeed, in later times, it became a max- 
 
 ety of baronial and provincial customs, laws and tribunals in France, 
 rendered these conflicts especially frequent in that country. It gave rise 
 to a body of learning, and of refined distinctions as to the extra-terri- 
 torial operation of statutes, which the lawyers of this country are parti- 
 cularly called on to examine, since American jurisprudence, arising, as 
 it does, from the laws and customs of twenty-five independent sovereign- 
 ties, is not likely ever to become a very homogeneous system, and must ne- 
 cessarily give rise to a series of questions very similar to those occasioned 
 by the various systems of laws existing in continental Europe. I am hap- 
 py to say that this subject has been recently taken up by an eminent 
 American civilian, Mr Livermore, a gentleman very favourably known 
 to the profession, and who cannot fail by such a work to increase 
 the obligations he has already conferred on it. The first number 
 only of his work has yet appeared. It is designed to be a thorough 
 investigation of this intricate and delicate subject, a terra incognita to 
 most of the lawyers of our country, and particularly to those who 
 have not extended their researches into the mixed Roman law of the con- 
 tinent. This number is devoted principally to the statement of the ques- 
 tions; some account of the numerous authors who have treated of them, 
 and their various theories on the subject; the criterions by which we may 
 correctly distinguish between real and personal statutes, and their effects; 
 the supposed foundations on which statutes have sometimes an extra-terri- 
 torial operation; the recognition of foreign laws and decisions under the 
 doctrine of national comity; and some remarks on adjudicated cases on these 
 subjects in American courts, principally in Louisiana. These topics arc dis- 
 cussed with much research, and great clearness, and give assurance of the
 
 Lect. X.] OF THE FKUDAI. LAW. 531 
 
 im that the lord could not sit personally in judgment, and 
 that the lord's vassals, who were peers of his court, must 
 assist in all proceedings; and where there were not two 
 vassals, there was no court, because there were no peers. 
 
 Such were the privileges of the landed aristocracy of 
 the feudal nations; privileges which constituted every 
 baron of note an independent chieftain, invested in fact 
 with the powers of sovereignty. 
 
 We have now considered the origin and progress of 
 feuds, their nature and incidents, and the power which 
 they threw into so many hands. We forbear to insist on 
 the strange anarchy which the very symmetry of the sys- 
 tem produced; or to enter into details of the state of Eu- 
 rope during more than three centuries. 
 
 satisfactory execution of the remainder of the work. The treatise will be 
 among the most valuable known on the subject, perhaps, in any country. 
 The student may hereafter consult, at his leisure, Troullier's Droit Civil, 
 torn. 10, 117. Voet De Statutis. Hertius De collisione legum. Emerigon 
 des Ass. torn. 1. c. 4, sec. 4. Huberus, 2 vol. lib. 1, tit. 3. Rodenberg De 
 jure quod oritur ex statutorum diversitate, tit. 1, cap. 1, and the following 
 English and American authorities. Sill v. Warwick, 1 Henry Black- 
 ttone's Reports, 690. Robinson v. Bland, 2 Burrow's Reports, 1071. Solo- 
 mon's v. Rice, 1 Henry Blackstone's Reports, 131. Hunter v. Potts, 4 Term 
 Reports, 182. Phillips v. Hunter, 2 Hen. Black. 402. Melan v. Fitzjames, 1 
 Bosanquet & Puller's Reports, 138. Selkrig v. Davis, 2 Dow's Reports, 
 230. Dalrymple v. Dalrymple, 2 Haggard's Reports, 54. Pippon v. Pip- 
 pon, Ambler's Reports, 25. Bruce v. Bruce, 2 Bos. &. Pull. 229 in notii. 
 Norris v. Munford, 4 Martin's Louisiana Reports, 20. Ranway v. Stevenson, 
 5 Martin, 23. Saul v. His Creditors, 5 Martin, 569. Fisk v. Chandler, 7 
 Martin, 24. Thuret v. Jenkins, 7 Martin, 318. Bird and others v. Casital, 
 2 Johnson's N. York Reports, 344. Holmes v. Remsen, 4 Johnson's Chan- 
 cery Cases, 460. 20 John. Rep. 229. Milne v. Morelon, 6 Binncy's Penn- 
 sylvania Rep. 353. Harrison v. Sterry, 5 Cranch's Rep. Sup. Court U. S. 
 289. Harvey v. Richards, 403. Slocum v. Pomeroy, 6 Cranch, 221. Sco- 
 field v. Day, 20 Johnson, 102. Goodwin v. Jones, 3 Massachusetts Rep. 
 577. Grimshaw v. Bender, 6 Mass. Rep. 157. Dyk v. Kane, 1 Gallison's 
 Rep. 371, McCandlish v. Cruger, 2 Bay's S. Car. Rep. 377. Taylor v. Gear, 
 Kirby's Conn. Rep. 313. Lodge v. Phelps, 1 John. Cases, 139. McNeil y. 
 Colquhoun, 2 Hayward's N. Car. Rep. 24.
 
 532 OF THE FEUDAL LAW. [Lect. X 
 
 A very important inquiry yet remains to us, namely, by 
 what gradation of changes the feudal monarchies assumed 
 their present structure, and how this unique system of policy 
 suffered a decline equally inevitable from its nature, con- 
 formable to the ambition and rapacity of monarchs, and ne- 
 cessary from the advancing civilization of men. We 
 therefore proceed to inquire into the topics of the next di- 
 vision of our subject. 
 Progression of the Division VII. We may consider this 
 
 feudal system to- . i . i A i 
 
 , .; , extensive subiect under three important 
 wards its modern J 1 
 
 form and aspect. divisions; 1. the original extent, and 
 progressive enlargement of the royal authority; 2. the 
 constitution of the national councils, and the mutations of 
 their authority; and 3. the extension and eventual pre- 
 dominance of the royal judicial jurisdiction over the baro- 
 nial and territorial; a most interesting chain of subjects, to 
 which our limits are far from permitting us to do justice. 
 (i.) of the ori- Under the first race of the French 
 
 ginal extent, and monarchs, the kings were elected by the 
 progressive enlarge- 
 ment of the royal people; and though, under the second, 
 
 authority. the choice was confined to a particular 
 
 family, the people's consent seems to have been necessary 
 to the selection of any one of that family. By degrees, 
 however, this selection came to be supposed or neglected, 
 and the descendants of Hugh Capet, the founder of the 
 third race, succeeded by hereditary right to whatever share 
 of authority they were permitted to wield over their turbu- 
 lent aristocracy. Depending almost wholly, however, for 
 revenue on their own domains, and commanding no forces 
 but the feudal militia, the right by which they held the 
 throne was of but little moment, since the authority it be- 
 stowed was so limited and disputed. Events, however, 
 perpetually augmented their power. The accession of the 
 Capets added large fiefs to the royal possessions. Under 
 Charles VII. the possessions of the English in France
 
 Lect. X.] OF THE FEUDAL LAW. 533 
 
 were wrested from them, and added to the French monar- 
 chy. The very struggle to regain these subserved the po- 
 licy of the kings, who under a pretence, very just in truth, 
 of the inefficiency of the feudal soldiery for ready defence, 
 introduced troops of mercenaries, and eventually stand- 
 ing armies. The wealth of the nobility was impaired in 
 these wars; their fiefs fell to female heirs, and became di- 
 vided, or they escheated for the want of heirs. Louis XI. 
 almost completed the ruin of the aristocracy by disgracing 
 them; by raising obscure persons to dignity and the roy- 
 al counsels; by tampering with the national assemblies, and, 
 finally, by the acquisition to the throne»of foreign domi- 
 nions, viz. of Burgundy, Provence, Artois and Roussillon. 
 Similar causes gave stability to the monarchy of Spain, al- 
 though, from particular causes, it was later in obtaining it. 
 The revolutions of the imperial authority in Germany, 
 though ascribable to the same general causes, will be better 
 understood when we come, in considering the changes in 
 the legislative power, to view the structure of the Germa- 
 nic body; and so in regard to England. In all these coun- 
 tries, the preponderance of the royal authority grew more 
 out of the personal policy and resources of the kings, and 
 the encroachments which, in consequence of them, they 
 were encouraged to make, than out of the consent of their 
 subjects, or their sense of their propriety or necessity; and 
 the consideration of the two succeeding topics will exhibit 
 the character and success of this royal policy. 
 
 (2.) Of the consti- The government of the barbarians was 
 tution of the national not an arbitrary rule, but proceeded on 
 councils, and the mu- . ... 
 
 tations of the legisla- the principle of a free and equal voice in 
 
 tive power. all deliberations for the common good. 
 
 We have mentioned the parliaments of the Champ de 
 Mars. Two assemblies were held annually. In the first 
 all laws for the public benefit were enacted, the more con- 
 iiderable persons of both the laity and clergy deliberating,
 
 534 OF THE FEUDAL LAW. [Lect. X. 
 
 and the inferior adding their consent, and sometimes ven- 
 turing to discuss. To the second assembly the chief men 
 only, and officers of state were admitted; their province 
 was to consult on the more urgent affairs of government, 
 which might concern perhaps the execution of the laws, 
 or foreign policy. 
 
 In a capitulary of Louis the Debonair, containing the 
 instructions given to each count to bring to these assemblies 
 twelve Scabini, we trace the first germ of Representation; 
 and it is unquestionable that the theoretical consent of the 
 people was necessary to legislation during the reign of Char- 
 lemagne and his "first successors. When France came to be 
 divided into great and independent fiefs, we hear nothing 
 of these national assemblies. While every baron legislated 
 for his domain, the king had a royal council composed of 
 tenants in chief, of prelates, and household officers. Some- 
 times, indeed, the kings appear to have acted with the con- 
 sent of an assembly more numerous, and particularly sum- 
 moned; as, for example, on the undertaking of the cru- 
 sade of Louis VII. and the imposition of the Saladine 
 tithe. As to the great meetings of the barons at their 
 grand festivals, they seem to have been affairs of pagean- 
 try, and were seldom, if ever, convened for any purpose of 
 business. 
 
 Thus, there appears a great difference between the 
 French and English monarchies, even while the latter was 
 under the arbitrary rule of the Normans; for in England 
 there was always a parliament of the great lords and large 
 proprietors. Yet the government of the Norman sove- 
 reigns was the stronger of the two; and the very circum- 
 stance of the unfrequent attendance of the French peers on 
 the king's council, proves the disorganization of the mo- 
 narchy. They denied the coercive authority of that coun- 
 cil; every baron, they held, was sovereign within his fief; 
 and the king could not, according to the 'Establishments
 
 Lect. X.] OF THE FEUDAL LAW. 535 
 
 of St. Louis/ declare any new law within the territory of 
 a baron, or the baron in that of his vavassor. Thus, 
 the kings of France could hardly be regarded as sove- 
 reigns beyond their peculiar domains. When circum- 
 stances, indeed, showed the necessity of enactments ha- 
 ving force beyond the bounds of a single fief, congres- 
 ses were sometimes held of the neighbouring lords, 
 wherein resolutions were agreed to, which each was to 
 execute within his own fief; and the ecclesiastical councils 
 sometimes assumed the right uf a more general legisla- 
 tion; as, for example, that of Troyes, which, composed in 
 part of laymen, laid a fine on invasions of church property; 
 and also that of Toulouse, prohibiting the erection of for- 
 tresses, and the making of new leagues, and ordaining that 
 judges should administer justice gratuitously. 
 
 Thus, then, we observe two distinct epochs in' the histo- 
 ry of legislative authority in France. In the first is to be 
 found a free, and in some degree a representative legisla- 
 tive body; in the second, a division of that power, to- 
 gether with almost all others essential to sovereignty, 
 amongst the aristocratic feudal proprietors. 
 
 But as such a state of misrule could scarcely endure long, 
 so the attempts of the kings were not slow nor late to as- 
 sume this essential prerogative into their own hands. In 
 the year 1223 we find an attempt by Louis VIII. under 
 cloak of a consent of the barons; yet in 1269, the date of 
 the 'Establishments of St. Louis,' no mention is made of 
 the consent of the barons, and perhaps it occurs in no 
 subsequent royal ordinance. In the ensuing reign of Phi- 
 lip the Bold, kingly prerogative had so far gathered 
 strength, that one of their jurists declares that when the 
 king makes an ordinance, not specially for his own domi- 
 nions, but general, it ought, to run through the kingdom, 
 and be supposed to be made with good advice, and for the 
 common benefit; and the same jurist, Beaumanoir, repeats
 
 536 OF THE FEUDAL LAW. [Lect. X. 
 
 this doctrine, with the additional important remark, 'that 
 there is no one so great but may be drawn into the king's 
 court for default of right, or for false judgment, or in mat- 
 ters affecting the sovereign. ' We here perceive the influ- 
 ence of the king's judicial tribunal, the Parliament of 
 Paris; and we shall presently consider, under the ensuing 
 head, the influence of this court in confirming the legisla- 
 tive authority in the kings. 
 
 Yet the power of this or of any other tribunal would 
 have been very insufficient to fortify the kings in this as- 
 sumption, but for the ample increase of the royal power 
 from the time of Philip Augustus, who reigned more than 
 half a century before the period of which I am speaking. 
 The kings ventured on acts of supreme legislation with 
 great reserve at first, and many precautions were used to 
 prevent alarm in their subjects at this exercise of a new 
 power. They pretended sometimes that their ordinances 
 were by the assent of the barons, or the chief of them; at 
 others, they urged that it was by advice of grave counsel- 
 lors, who were often, it may be supposed, persons of great 
 power and consideration. But a powerful cause of the 
 final predominance of these royal enactments over the ter- 
 ritorial and feudal jurisdictions, was the insufficiency of 
 the latter to the purposes of justice; for we find that the 
 first assumption of jurisdiction on the royal part, was in 
 cases where the local jurisdictions could not minister ade- 
 quate justice; and as the people gradually found the ad- 
 vantage of appealing to laws made on grave advisement, 
 and with a view to a more general policy, the Parliament 
 of Paris had abundant opportunities of widening insensi- 
 bly the boundaries of the royal legislative, as well as judi- 
 cial power. The assumption of the prerogative of taxa- 
 tion, as it was a delicate one, was the last in order, and 
 certainly the most important in its effects.
 
 Lect. X.] OF THE FEUDAL LAW. 537 
 
 As the barons originally enjoyed immunity from taxa- 
 tion in the whole extent of their fiefs, the resources of Phi- 
 lip the Fair, who was the author of an important innova- 
 tion, were very insufficient, though his domains included 
 many of the noblest cities of France. Having first, there- 
 fore, employed the expedient of levying taxes within the 
 territories of his vassals, by their own consent, he ventured 
 on the convocation of a representative body composed of 
 the three orders of the nation, and termed the States Ge- 
 neral. They were first convened in 1302; but their first 
 grant of a subsidy was in 1314. Thus arose a third estate, 
 besides the barons and clergy, viz. the deputies of the 
 towns, endowed with new franchises, and bearing a new 
 relation to the monarchy. The policy of Philip in this 
 step is obvious. He diminished the influence of the barons 
 over these burgesses, thus brought into immediate contact 
 with the crown, and no longer yielding their contributions 
 through the medium of their lords; whilst he might expect 
 those contributions to be larger than when they came 
 through a discontented aristocracy. 
 
 Within the narrow limits to which I am necessarily re- 
 stricted, I cannot inquire into the constitutional rights of 
 these States General, nor trace their ineffectual efforts to 
 add to their right of granting subsidies to the crown, some 
 privileges favourable to their own independence, and to 
 limiting the power of the throne. These would seem, as 
 I have said, to have been very ineffectual; and the States 
 General, after many contests with the sovereign, seem to 
 have answered no purpose but countervailing the opposi- 
 tion of the aristocracy to the crown, and then to have fal- 
 len into the same insignificance. In course of time they 
 ceased to be convened; the kings assumed to themselves 
 the power of levying taxes; and having vanquished the 
 rights and spirit of the aristocracy, disregarded, in like 
 manner, the privileges and independence of the commons, 
 68
 
 538 OF THE FEUDAL LAW. [Lect. X. 
 
 by whose aid they had achieved the victory. The com- 
 mons, indeed, never seem to have had in France the con- 
 sideration which more benign causes procured them in 
 England, nor to have formed at any time an essential mem- 
 ber of the constitution. I shall postpone what I have to 
 say respecting the mutations of the legislative power in 
 Germany, or the Empire, until I have taken a rapid view 
 of the changes in judicial jurisdiction in France; a topic 
 necessary to the perfect understanding of those of the 
 legislative authority in that country. 
 (3.) Of the gradual ^ e have seen that the barons, among 
 
 abolishment of ter- their other rights, possessed exclusive 
 ritorial jurisdiction; .......... ,, . , 
 
 , e i . ... indicia! jurisdiction in their own domains. 
 
 and of the substitu- •> J 
 
 tion of royal judi- This, like the others, was gradually abol- 
 cia juris ic ion. ished by the policy and increasing power 
 of the kings; the first step in which was the enactment of 
 that code which is known by the name of the 'Establish- 
 ments of St. Louis.' By the wisdom which distinguished 
 the rules of civil and criminal procedure in that code, and 
 the principles of legal decision, (which discouraged, for 
 example, the judicial combat;) by the adoption of a wiser 
 jurisprudence in the royal domains; and, finally, by making 
 it discretionary with the litigants in all civil suits, to 
 adopt the law of the 'Establishments;' St. Louis gradually 
 wrought a change which the gentler manners, and dimin- 
 ished superstition of the times promoted and corroborated. 
 By an ordinance in 1190, nearly a century before the 
 Establishments of St. Louis, Philip Augustus established 
 bailiffs or seneschals, who acted as judges for the king; 
 and every barony, as it became reunited to the crown, was 
 subjected to one of these officers. The vassals, therefore, 
 whose lands depended on such reunited fief, became subject 
 to the appellate jurisdiction of the royal court. In many 
 cases, also, which were termed royal, a term the true ex- 
 tent of whoso meaning was kept in studied ambiguity, the
 
 Lect. X.] OF THE FEUDAL LAW. 539 
 
 territorial court was held to be incompetent; and these en- 
 croachments were attended by two other very important 
 ones, viz. that vassals might complain in the first instance 
 to the king's court; and that in all cases, the royal court 
 might take cognizance of a suit unless the defendant ex- 
 cepted to the jurisdiction. 
 
 The Parliament of Paris, as we have before mentioned, 
 was another great organ of the kingly jurisdiction. This 
 supreme council of peers was the great judicial tribunal of 
 the French crown, from the accession of Hugh Capet. It 
 was originally composed of the king's great vassals, peers 
 of those who wer£ to be tried by it, and also of the house- 
 hold officers. But when the business of this court became 
 vastly increased by the multiplicity of appeals, which might 
 originally be made from any court on denial of justice, and 
 which afterwards were much augmented by those which 
 came from the bailiff's courts just spoken of, the barons 
 found neither leisure nor capacity to sit there; and St. 
 Louis, anxious for regularity and wisdom in its decisions, 
 introduced into it some counsellors, chiefly ecclesiastics, 
 to act as advisers. It now became known by the name of 
 the Parliament; and though for some time ambulatory, it 
 sat principally at Paris during the thirteenth century. 
 
 The character of a feudal court was soon lost in this sta- 
 tionary parliament: it was a regular tribunal, and not a 
 loose aristocratic assembly. It was to hold two sittings in 
 the year, and was composed of two prelates, two counts, 
 thirteen clerks, and as many laymen. The nobility, how- 
 ever, grew weary of attendance; the bishops were dismis- 
 sed to their sees; and lawyers gradually engrossed the 
 whole direction of the tribunal. With them, however, sat 
 the lay and spiritual peers of France, a title no longer ap- 
 plicable to all persons coequal in tenure under the king, 
 but to twelve great feudatories, six of them ecclesiastical: 
 this number, however, was augmented by successive crea-
 
 540 OF THE FEUDAL LAW. [Lent. X. 
 
 tions. A judioial body thus constituted, was necessarily 
 important and respectable; and it was deemed essential, at 
 least as early as the close of the fourteenth century, that 
 the king's edicts should be registered on its records, be- 
 fore they had validity as laws. This privilege was often 
 used by that body for the public benefit; it frequently set 
 itself in opposition to royal usurpation; and its struggles 
 just before the commencement of the French revolution, 
 are well known to modern history. 
 
 Thus, then, the kings regained for the sovereignty that 
 right of dispensing justice which, though essential to the 
 constitution of every well regulated state* had been wrest- 
 ed from it by the territorial privileges of the feudal barons; 
 privileges which, we have seen, were the growth of anar- 
 chy and barbarism. The steps of their policy were slow 
 but certain; and received force from their augmenting re- 
 sources and consequence. We have already remarked 
 that the kings first assumed jurisdiction where the lords' 
 courts, from some particular circumstance, could not ren- 
 der complete justice to the suitors. This was a plausible 
 ground for the assumption of jurisdiction, and proved a 
 principal source of its amplification. An appeal, too, was 
 provided on the ground of an unjust sentence; whenever 
 the royal prerogative was supposed to be concerned; and 
 lastly, where the suitors had election to decline the trial 
 by combat. But perhaps as powerful an instrument as 
 any, in the augmentation of the king's general jurisdiction, 
 was the dignity and superior regularity of the royal 
 courts. Yet as the king could not decide every cause in 
 person, the next natural step was to appoint bailiffs or sen- 
 eschals, with right of jurisdiction in different districts of 
 the kingdom. Royal courts thus established in every 
 quarter, the subjects would naturally resort to them; and 
 as the administration of justice by the barons was, in the 
 first instance, subject to several limitations, there were end-
 
 Lect. X.] OP THE FEUDAL LAW. 541 
 
 less pretexts for obstructing and reviewing their proceed- 
 ings. The king's supreme court, originally ambulatory, 
 became, as we have seen, fixed as to the place, and regular 
 in the time of its meeting. Skilful persons, also, were 
 then selected to preside in it; and as the right of hearing 
 appeals was its essential privilege, the final decision of all 
 causes of importance was eventually brought into the Par- 
 liament of Paris, or the other courts constructed by the 
 king in different provinces. To this important acquisition 
 to the royal prerogative in the dispensation of justice, was 
 added, as we have remarked, another not less important, 
 viz. its legislative power. The assent of turbulent barons 
 was no longer deemed requisite to the promulgation of a 
 law: it was deemed sufficient that the decree was register- 
 ed by the Parliament of Paris, a body which, though it 
 stood often in the way of the violent exercise of royal 
 power, was manifestl)', from its constitution, too much 
 under the royal control not to strengthen the power of the 
 sovereign to a great degree. 
 
 There was one other material circumstance that limited 
 and brought into disrepute the jurisdiction of the barons, 
 which I am compelled merely to mention, but which is am- 
 ply treated by the historians of this period, viz. the exemp- 
 tion of ecclesiastics from lay jurisdiction, and the establish- 
 ment of their own peculiar courts. The forms of proce- 
 dure in these clerical tribunals were regulated chiefly by 
 the Roman civil code; they were founded on obvious prin- 
 ciples of equity and good sense; and presented a regular 
 system of decision and appeal. They were therefore pre- 
 ferred, even by a rude people, to their own barbarous and 
 blind feudal jurisprudence; and the ecclesiastics, on their 
 part, were not slow to fortify this influence. They ex- 
 tended their own personal exemption from other ju- 
 risdictions to so many persons, and to such a variety of 
 cases, that a great part of the affairs which caused litiga-
 
 542 OF THE FEUDAL LAW. [Lect. X. 
 
 tion, were drawn, by some device or other, within their 
 cognizance. This was no inconsiderable aid to the advan- 
 cing refinement of those ages; and to the establishment of 
 corporations and communities, by the policy or indulgence 
 of the kings, or both, in which the same code was the 
 basis of procedure and decision, we may also ascribe a 
 part of this increasing melioration. 
 
 I shall be excused for having dwelt so long on these mo- 
 difications of the feudal policy in France, and its gradual 
 change into the form which it wore during some centuries 
 prior to the French revolution. For it should be remem- 
 bered that this feudal form of polity being common to 
 France with several other important European kingdoms, 
 the history of its modifications and decline in one of them, is 
 in fact essentially the history of that system in the others. 
 
 In Germany a like turbulence and confusion produced a 
 correspondent change in the oiiginal feudal scheme. Du- 
 ring the conflicts between the emperors and their subjects, 
 more particularly during the existence of the factions of the 
 Guelfs and Ghibellines, the adherents of the popes and the 
 emperors respectively, the chief nobility, the dignified ec- 
 clesiastics, and the free cities usurped on the prerogatives 
 of the emperors, and both claimed and exercised the 
 rights of full sovereignty within their respective domains. 
 All that has been said of the privileges of the French 
 barons, and the disorder and disunion arising out of them, 
 applies with equal force to the members of the Germanic 
 Confederacy; so that from the accession of Rodolph of 
 Hapsburgh, in the year 1273, to the reign of Maximilian, 
 the predecessor of Charles V. in 151S, the Empire was 
 the scene of every disorder. The very constitution of the 
 diets was productive of anarchy. These originally were 
 exactly the same with the assemblies of March and May 
 in France: like them they met twice a year; and at them 
 every freeman had a right to be present. But when the
 
 Lect. X.] °F TH E FEUDAL LAW. 543 
 
 princes, the dignified ecclesiastics, and the barons acquired 
 independent jurisdiction, the right of suffrage was annexed 
 to the territory or dignity; and if any member of the 
 Empire made acquisition of a new territory in it, he was 
 entitled to another suffrage. This league of independent 
 states, for so it may be called, was productive of obvious 
 disadvantages. The powers of the Diet extended to all 
 common concerns of the German confederacy. 
 
 The Imperial Chamber was instituted by Maximilian I. 
 to establish the authority of government, and to put an 
 end to private wars in Germany. The diets were found in- 
 adequate, from their size and their unfrequent assembling, 
 to decide the perpetual disputes of the confederates. To 
 supply this defect, this tribunal, consisting originally of a 
 president appointed by the emperor, and of sixteen judges, 
 and supported by a contribution from the states of the Em- 
 pire, was established to take cognizance of all questions of 
 civil right between these states, and to judge in all cri- 
 minal causes connected with the preservation of the pub- 
 lic peace. It passed judgment in the last resort, and with- 
 out appeal. 
 
 All causes relating to points of feudal right or jurisdic- 
 tion, and such as respected the territories holden of the 
 Empire in Italy, belonged to the jurisdiction of the Aulic 
 Council, a tribunal formed on the model of the ancient 
 Court of the Palace. All its judges were appointed by 
 the emperor, and it has always therefore been the policy 
 of the court of Vienna to extend the jurisdiction of this 
 council, and to circumscribe that of the Imperial Chamber. 
 And these two institutions, though far from perfect, reme- 
 died some of the inconveniences and oppressions of the 
 feudal anarchy, and territorial jurisdiction, and gave some- 
 thing like authority to the emperors beyond the boundaries 
 of their hereditarv dominions.
 
 544 OF THE FEUDAL LAW. [Lect. X. 
 
 Similar disorganization prevailed also in Spain, and like 
 remedies were provided. But all these kingdoms failed to 
 preserve from their assemblies of the people, a body like 
 the English Parliament, constitutionally and practically the 
 organ of the wishes of the people, and the depository of 
 regular laws and of liberty. 
 
 It is hardly necessary to remark that, as all the feudal 
 kingdoms bore a strong resemblance to each other, so the 
 model of their general assemblies of the people was origi- 
 nally the same; and the diets of Germany, the states-gene- 
 ral of France, the cortes of Spain, and the parliament of 
 England, all sprang from this original foundation. But the 
 fate of these several countries was different, according to 
 the character finally assumed by these latter assemblies. 
 We have shown how the diet of Germany became at last 
 rather a congress of deputies of states, independent and 
 dissimilar in their political organization, than a representa- 
 tive body of one free state; and how the parliament of Pa- 
 ris, at first a select council of the king, usurped the legis- 
 lative prerogative which appertained to the Champs de 
 Mars. The cortes of Spain retained for a longer time the 
 spirit of the original legislative structure, though they 
 yielded at last to the influence of those powerful causes 
 which, throughout the Continent, elevated the royal prero- 
 gative above both the aristocracy and the people. 
 
 It is in England alone, of all the old countries, that we 
 find an assemblage of the freemen of the state, retaining all 
 its primary form and spirit. It was, indeed, subjected to 
 many mutations of influence and structure; but it has, ne- 
 vertheless, preserved to that fortunate country a sense of 
 freedom, and a body of privileges, now known to no coun- 
 try in which feudalism prevailed. 
 
 Such, then, is a brief outline of the feudal scheme of 
 government on the Continent; of its defects, its decline, 
 and the causes which built up the modern monarchies on
 
 Led. X-3 OF THE FEUDAL LAW. 545 
 
 its ruins. To have treated all these interesting topics with 
 fulness, would have been not only superfluous, but foreign 
 to the plan of these 'Outlines.' The subject, however, was 
 too important to be passed over slightly, and what I have 
 said may stimulate you to further inquiries. 
 
 Part the Second. 
 
 „. .. , . , Division VIII. Having described the 
 
 Of the feudal sys- ° 
 
 tem in England, and general nature of the feudal system, as it 
 
 its influence on the existed on the Continent, I proceed to 
 jurisprudence of that _ * 
 
 country and of the the consideration of it as it was mani- 
 
 American States. fested in England, from the earliest times 
 to its virtual abolition in the reign of the second Charles. 
 And I shall close the lecture with a brief inquiry as to the 
 influence of this long prevailing system on the jurispru- 
 dence of England and of this country, and the necessity of 
 making the laws and institutions of the feudal ages a subject 
 of diligent examination by legal students. 
 
 The true sera of the introduction of 
 (1.) Of the sera of 
 
 the introduction of feuds into England, has been a point on 
 feuds into England, ^^ich there has been much diversity of 
 opinion among antiquarians; Lord Coke, Selden, Nathaniel 
 Bacon, Gilbert Steuart, Mr Turner, &c. contending for 
 their existence in that country before the Conquest; and 
 Madox, Craig, Spelman, Hale, Somner, Sullivan, Hume, 
 Houard and Eawdwen ranging themselves on the opposite 
 side; whilst Wright, Blackstone, Dalrymple, Watkins, 
 and Lord Kaimes take something of a middle ground. 
 
 When it is recollected that the feudal system was not 
 brought by the invaders of the Roman empire into their 
 conquests, but that it resulted from their circumstances 
 after their establishment there, and after a long series of 
 years, it is not surprising that these invaders, although of 
 common origin, should be found living under different 
 systems of policy. The Saxon invaders of England 
 69
 
 546 OF THE FEUDAL LAW. [Lect. X. 
 
 are said to have been a cruel and extirpating race. They 
 put the ancient inhabitants of Britain to the sword, or 
 drove them into France and Wales, instead of settling 
 themselves among the conquered, as was frequently the 
 case on the Continent. The nature, also, of their incur- 
 sions, made in separate bodies, and in quest of distinct set- 
 tlements, would be apt to cause a greater slaughter of the 
 natives. Hence there was no want of vacant lands, and no 
 severe duties, consequently, could be required in return for 
 the grant of them. Moreover, the adventurers who came 
 over being independent plunderers, their attendants would 
 be rather their associates than their feudatories; and this, 
 among other causes, produced the numerous independent 
 kingdoms of that island. Every point in these character- 
 istics of the Saxons is, we think, at war with that regular 
 dependency which marked the feudal system, and would 
 prevent its prevailing at that time in Britain, especially as it 
 was protected by the sea from foreign enemies. 
 
 Such being the probable reasons, among others, of the 
 Saxons differing in institutions from their brother barba- 
 rians of the Continent, let us examine whether the fact of 
 this difference be established. And it may be remarked, 
 by the way, that the general resemblance of the barbarian 
 forms has misled authors, we apprehend, into a neglect of 
 their minute differences. Those writers who could trace 
 the origin of feuds in the military donations of land among 
 the Romans, would be yet more likely to be imposed on 
 by the greater similarity of the Saxon manners and institu- 
 tions to those of feudal countries. Besides, the fact of 
 some few of the Saxon lands being granted as military 
 benefices for life, (if they ever were so granted) has led to 
 a supposition that these prevailed more generally, and pro- 
 duced larger feudal consequences, than, in my opinion, we 
 are justified in supposing from the Saxon history. In fact, 
 many of the very reasons usually urged to prove that lands
 
 Lect. X.j OF THE FEUDAL LAW. 547 
 
 in the Saxon times were held as feudal inheritances, prove 
 rather the contrary. Thus, for example, the Saxon lands 
 were certainly hereditary; but those of the Greeks, the 
 Romans, nay even the allodial lands in the conquests of 
 the barbarians themselves, were the same. Indeed, the 
 military benefices on the Continent were not, as we have 
 seen, hereditary at first; so that this argument is rather 
 adverse to the point which it is brought to prove, since, 
 though a proper feud is a hereditament, yet we know that 
 the very genius of the early feudalism excluded hereditari- 
 ness. The Saxon lands were alienable at the will of the 
 owner; they were not forfeitable for felony; and they were 
 divisible among all the sons, — which fiefs were, only in their 
 infancy, if they ever were. As to the military service to 
 which they were subject, the allodial lands in other coun- 
 tries were also subject to it; and indeed every nation must 
 necessarily exact such service from the members of the 
 state. It differed, however, in several essential particulars 
 from the feudal military service. The Saxons served as 
 foot soldiers, and not on horseback and in complete ar- 
 mour, as the feudal tenants did, who also went to war only 
 on summons. The Saxons had regular musters for the pre- 
 servation of discipline, and their military duties were ex- 
 acted and performed in a manner similar to those of our 
 militia; but the feudal tenants were obliged to serve forty 
 days, and this, too, at their own expense, and wherever the 
 king pleased, in a just or defensive war; nay, in an unjust 
 and offensive one, by the rule of William the Conqueror. 
 Among the Saxons, the obligation to military service ap- 
 pertained to the land in proportion to the quantity held, 
 every hide of land (consisting, of about 115 acres) finding 
 one man, and there being no necessity for personal attend- 
 ance, nor any pecuniary commutation for it. In his own 
 county the soldier was supported by the hide of land; in 
 another county he was sustained either by his king or by
 
 548 OF THE FEUDAL LAW. [Lect. X. 
 
 that county. These are great and characteristic differences, 
 and indeed have scarcely a feature of feudalism in them. 
 
 Again. The arguments in favour of the existence of feu- 
 dalism in England prior to the Conquest, derived from the 
 existence of Heriots, and the supposed oath of fealty among 
 the Saxons, are open to equal objection. Heriots cannot 
 be justly likened to Reliefs; for" these last were demandable 
 of the heir only, who could not even enter on his lands un- 
 til the relief had been paid. The heriot, on the other 
 hand, was paid out of the tenant's personal estate, and by 
 the executor or administrator. The oath of fealty, also, 
 was made by the feudal tenant to his lord; and even when 
 made to the king, it was in respect of the tenure of land, 
 and as his lord; whereas the oath taken among the Saxons 
 was to the king only, and as king, not as landlord; and was 
 neither more nor less than an oath of allegiance, being ta- 
 ken by every male above the age of twelve, whether land- 
 holder or not. 
 
 It seems, however, to be the opinion of many respecta- 
 ble writers on this subject, that some lands in England 
 were held before the Conquest as military benefices or 
 feuds; but the better opinion is, that they were benefices 
 for life only, unattended by the feudal incidents of wardship, 
 marriage, relief &c. and that no inference, consequently, 
 in favour of the existence of feudalism in England at that 
 time, can fairly be drawn from this fact. 
 
 Dalrymple, a very judicious author, is of opinion that 
 lands among the Saxons were both feudal and allodial, as 
 was the case among the continental nations; and thinks that 
 this is proved by their well known distinction between 
 Thaneland or Bockland, and Reveland or Folkland; the 
 first of which he conceives to have been feudal, and to have 
 been granted to, and under the jurisdiction of, the Thanes 
 or great lords; and the second to have been allodial, and 
 presided over by the King's officer, the Reve or Sheriff.
 
 Lect. X.] OF THE FEUDAL LAW. 54!? 
 
 This distinction, he confesses, is differently explained by- 
 other historians, lawyers and antiquaries. It is highly pro- 
 bable that large grants of land to the thanes were thought 
 to require more authentic memorials than ordinary, and 
 might thus be called Bocland; and it is quite likely that 
 these lands being cultivated by villains, the lord exercised 
 over them an arbitrary jurisdiction different from that ex- 
 ercised over allodial proprietors. Nay, the very fact that 
 the possessors of allodial or Folkland were called Libert, 
 in opposition to the slaves, or tenants of the thanes, de- 
 monstrates the position just stated; for in feudal countries 
 the liberi were both feudal and allodial proprietors, and 
 indeed this was a term which implied a warrior, or one 
 bound by his tenure (if bound at all) to military, and not 
 to base services. The same term, therefore, among the 
 Saxons expressed probably the freemen, whether the great 
 thanes or smaller landholders, in opposition to the villains 
 or slaves who cultivated the grounds of both. Mr. Hume, 
 however, gives a different explanation of Bockland and 
 Thaneland; the first he supposes was land held by book or 
 charter, which was regarded as dominium plenum, full 
 property, and was hereditary; the second was held by the 
 common folk or people, who were removable at pleasure, 
 and were nothing more than tenants at will.* That the 
 Bockland of the Anglo-Saxon codes was in most respects 
 similar to the Alodis of the continental nations, and that 
 the Folkland of the same codes remotely resembled the 
 lands held in feudal vassalage, cannot be doubted; but this 
 goes but little way, if any, to establish the existence of 
 feuds in England in the time of the Saxons. 
 
 As to the opinion of Gilbert Steuart, who, in his 'View 
 of Civil Society in Europe,' has laboured to establish the 
 existence of feuds in- England anterior to the Conquest, I 
 cannot but remark that it appears to me extremely ill sup- 
 
 * 1 Hume's Eng. Appen. 195.
 
 550 OF THE FEUDAL LAW. [Lect. X. 
 
 ported, his citations being few, and, for the most part, very 
 inapposite. The perusal of that part of his work which 
 aims to establish this point, is sufficient, we think, on his 
 own showing, to prove to the considerate reader the weak- 
 ness of the theory. We refer the student to the eleventh 
 note on his second chapter, for this author's interpretation 
 of the grant of Cumberland to Malcolm, king of Scotland, 
 by king Edmund, in which he will see a fair specimen of 
 his forced constructions and illogical arguments. Steuart 
 is a champion of some celebrity on that side of the ques- 
 tion, and we regret that our limits do not allow us to quote 
 the passage alluded to, and to comment on it, not only that 
 we might urge it in support of the opinion we have 
 adopted, but as a sample, among many others, of the pre- 
 judice of writers when they espouse party sentiments, or 
 apply themselves to the support of a favorite theory. We 
 shall have occasion again to advert to this subject at the 
 close of the present lecture. 
 
 The enlightened commentator on the laws of England is 
 disposed to compromise this difference of opinion, by ad- 
 mitting that an imperfect system of feuds subsisted among 
 the Saxons long prior to the Conquest.* We are inclined, 
 however, to believe that the faint traces of feudalism relied 
 on by these writers in support of their respective theories, 
 are not strictly feudal characteristics, but belong to the po- 
 licy of nearly every nation in its primitive history. Hence 
 the thaneland, bocland, folkland, &c. and the several or- 
 ders of men, the noble, the free, and the slaves, who went 
 under the names of the king's thanes, lesser thanes, ceorles 
 or husbandmen, and villains, afford no evidence of feuda- 
 lism, the like distinctions existing among most other 
 people. 
 
 On the whole, then, we may conclude, and with the 
 authority of many eminent antiquaries, and one illustrious 
 
 * 2 Blackstone's Commentaries 47.
 
 Lect. X.] OF THE FEUDAL LAW. 551 
 
 historian, Hume, in our favour, that the feudal system, 
 whatever slight resemblances may be found to it in the in- 
 stitutions of the Saxons, was unknown to them before the 
 Conquest. According to this better opinion, it is to Wil- 
 liam the Conqueror that we must look for its introduction.* 
 We shall now proceed to a more particular examination 
 of this system, as it afterwards manifested itself in that 
 country. 
 
 The Norman conqueror found himself at 
 (2.) Of the chang- n 
 
 es effected by the the head of a victorious army to which the 
 
 Norman invasion. dispirited and vanquished Saxons could 
 offer no effectual resistance. Having extinguished the last 
 sparks of national spirit, he set himself to modelling the 
 government to his own views, without regard to the rights 
 or complaints of the Saxons. He shared most of the lands 
 of the kingdom among his Norman adventurers, on the 
 plan of the feudal government of France, and invested the 
 most distinguished of these with enormous estates and re- 
 venues. He gave, for instance, to his sister's son the 
 whole county of Chester; to the Earl of Montaigne nine 
 
 * A few writers have sometimes inadvertently applied the word te- 
 nure to the Anglo-Saxon holdings. That there were conditional, and 
 occasionally stipendiary grants among the Saxons, is undeniable; but these 
 are very different from the tenure of the feudists. We think that Mr. Tur- 
 ner, a very able antiquarian, has fallen into this errour in his history of the 
 Anglo-Saxons. He alludes to the habendum of their grants, as determin- 
 ing the nature of the tenure; but it is far more probable that the habendum 
 was used then, as it is now, in order to fix and define the interest of the 
 grantee, and not with a view of creating a tenure, properly so called. — 
 Vide Turner's His. Anglo-Saxons, 201, 222, 225. The word tenure, in- 
 deed, has a strictly technical and feudal meaning, and imports, not only a 
 holding, but a feudal relation thereby established between the tenant and 
 his superior lord. In after times it sometimes assumed a more popular 
 signification, synonymous with the word title or estate. Those who are 
 seised of allodial estates are often called tenants; so also the king is said 
 to be seised in his demesne as of fee; but in both these cases, nothing 
 more can be meant than the title or quantity of interest vested in the allo- 
 dial tenants and king respectively.
 
 552 OF THE FEUDAL LAW. [Lect. X. 
 
 hundred and seventy-three manors and lordships; and to 
 the Earl of Brittany and Richmond four hundred and forty- 
 two manors.* 
 
 It has been a subject of surprise that the Conqueror could 
 thus easily deprive the Saxon proprietors of their lands. 
 But it is extremely probable that the Saxon government 
 was highly aristocratical, the property in few hands, and 
 the common people tenants at pleasure, and therefore care- 
 less of whom they held such a precarious interest in the 
 soil. The forfeiture, also, of many large estates for trea- 
 son, accounts for so much of the landed property passing 
 so immediately, and with so little tumult, into the royal 
 hands. It was easy, too, to model the rest after the same 
 fashion; for although the Saxons were a brave race, they 
 were extremely rude and ignorant, intemperate and riotous, 
 and, moreover, were rather remarkable for their want of 
 loyalty and fidelity. A conquered people of this kind, 
 whom even the Normans regarded as barbarians, could not 
 be expected to make much resistance to any innovation, es- 
 pecially when the thanes, who had monopolized most of 
 the lands, were themselves completely subdued, and at the 
 mercy of the Conqueror. Hence was it that William in 
 fact, by the concurring authority of most historians, con- 
 verted England per saltwn into a feudal kingdom, so 
 much the more rigorously feudal as his authority was na- 
 turally great both over the invaders and the invaded. 
 The whole kingdom was divided by him into sixty thou- 
 sand two hundred and fifteen knight's fees, held by about 
 seven hundred chief tenants; the ecclesiastical lands and 
 revenues being reduced under the same feudal law as the 
 lay, and liable to the same military service. 
 
 * The curious student, who may desire to know the extent of the landed 
 monopoly consequent on the introduction of feudalism by the Conqueror, 
 may consult Bawdwen's Domesday Book, translated, and published, with 
 a glossary, in the year 1S09.
 
 Lect. X.] OF THE FEUDAL LAW. 553 
 
 ,„ . „ . r Such a system was obviously wholly 
 
 (3.) Brief exami- J J j 
 
 nation into the na- warlike in its character. Accordingly, 
 
 ture of English feud's. we fin(J the mi]itary tenures to have ex _ 
 
 isted in their full vigour in England. Of the incidents of 
 these, as they existed in the feudalism of the Continent, I 
 have already spoken, apd shall have the less to sav in re- 
 gard to their character in England. I have also explained 
 the various kinds of improper feuds known to the feudal 
 jurisprudence of the Continent. In England they were 
 also of ten kinds, which it will be sufficient briefly to men- 
 tion, as they varied in no very material respect from those 
 already described. They were as follows. 1. Tenure in 
 frankalmoigne. 2. Tenure without the oath of fealty. 3. 
 Land held under some condition which might extend it be- 
 yond the tenant's life, or determine it before his death. 
 4. Lands held by any other than military services, or even 
 by military, if certain. 5. Lands held by civil and de- 
 fined services, called soocage, a tenure destined to grow 
 into paramount importance, and to become the tenure of 
 nearly all English lands. 6. Tenure by the oath of fealty 
 only. 7. Grand serjeantry, whether military or civil, the 
 services being certain. 8. Petty serjeantry. 9. Grants 
 to female tenants, as they served by deputy, personal ser- 
 vices being essential to the notion of a proper feud. 10. 
 All grants of incorporeal things. The principle which 
 characterizes each of the foregoing as an improper feud, 
 distinctly manifests, also, the strict idea of a proper feud, 
 to the consideration of which we have now briefly to advert. 
 We have seen that the essential reservation on all proper 
 feuds was military service. But in addition to this, the 
 king and lords in England were entitled to Aids, which 
 originally were mere gratuities of the vassals, bestowed on 
 some great festal occasion, or to relieve some very press- 
 ing necessity of the king or lord. They differed in no ma- 
 terial respect from those which were customary on the Con- 
 70
 
 554 OF THE FEUDAL LAW. [Lect. X- 
 
 tinent. In regard to the doctrine of Escheat, which has 
 also been mentioned, I have only to observe that, besides 
 the actual failure of heirs, the feud was liable to escheat to 
 the lord propter del/cta /mentis; and originally these 
 offences were very numerous. These forfeitures, however, 
 being resisted, and very naturally, by persons who had 
 paid for their land, a total change in this respect was gra- 
 dually effected, and at length scarcely any injury done by 
 the vassal to his lord induced an escheat of the feud; but 
 the escheat for crimes against the publick remained; as, for 
 instance, for treason and fe'onies, of which the consequence 
 was corruption of blood, the failure of heirs, and the ne- 
 cessary escheat of the feud. In this case the land, on ac- 
 count of the crime against the publick, went to the king for 
 a year and a day, and then fell to the particular lord of 
 whom it had been held. It is proper, however, to remark 
 that the king's year and a day in the lapsed feud was not a 
 direct consequence of the subject's crime, but is supposed 
 to have thus originated. The vassal's land originally belong- 
 ing to the lord, reverted to him or his heirs whenever the 
 vassal became obviously unworthy to enjoy it longer. But 
 the personal estate, or moveables, being of his own acquisi- 
 tion, was the only fund that could be resorted to for the dis- 
 charge of the debt which he was supposed to have contract- 
 ed by his crime to the publick. It being necessary, there- 
 fore, that the magistrate should have some time to collect 
 these goods, custom at length gave to the king's minister the 
 year and the day above mentioned, for that purpose. In 
 lawless and oppressive times, however, we find that this 
 magistrate often committed, for the benefit of majesty or 
 himself, the most ruinous waste on the escheated lands; so 
 that ihe lords found it their interest to commute this pri- 
 vilege by allowing to the king uniformly a whole year's 
 rent in anticipation. The same rule of escheat obtained in 
 cases of treason, after the establishment of rear-vassallage,
 
 Lect. X.] OF THE FEUDAL LAW. 555 
 
 until the famous statute of Treasons, 25 Edward III. chap. 2, 
 which made lands forfeitable to the king on the tenant's 
 treason, notwithstanding they were holden of lords, and 
 not of the king in capite. Thus, while escheat is by the 
 common law, forfeiture is said to be by statute. 
 
 The nature of Reliefs, another feudal incident, has also 
 been explained in the first part of this lecture. In Eng- 
 land, a year and a day were allowed the heir to make his 
 fealty, and to pay his relief; within which time if he failed 
 to do so, he forfeited his right of succession, and the lord 
 was at liberty to dispose of it to a stranger: this was called 
 the right of Non-entry. The reliefs, being at first arbitrary, 
 occasioned many struggles in England. It appears that 
 the discontents which arose on the Continent from vexa- 
 tious and uncertain reliefs, induced William the Conqueror 
 to fix the rate of them according to the ranks of persons, 
 and the value of their estates: but William Rufus having 
 exacted arbitrary reliefs, the grievance was redressed by 
 the charter of Henry I. Yet we find that though in the 
 time of his grandson, Henry II. this certainty continued 
 as to the relief of a knight's fee, it did not obtain as to that 
 of a noble fee, a difference ascribable to the precarious state 
 of the nobles, many of whom had been attached to the 
 cause of Stephen. Under John these exactions became 
 excessive, and produced the first article of temporal con- 
 cern in Magna Charta. This fixed the relief at the fourth 
 part of the annual value of the inheritance. The lords, 
 when they began to grant inheritances to their soccage te- 
 nants, exacted from every new possessor a year's value, or 
 double the rent of the first year. 
 
 The Fine for alienation was also generally a year's rent; 
 but to avoid this fine, the vassals adopted the plan of sub- 
 infeudation, making thereby the conveyee of the feud to 
 hold of the conveyor, instead of the original lord, whereby 
 that lord lost in a great degree the incidents and fruits of
 
 556 OF THE FEUDAL LAV, . [Lect. X. 
 
 the tenure. This practice of sub-infeudation, as distin- 
 guished from alienation, prevailed so extensively as nearly 
 to threaten the existence of feudalism in England. If, for 
 example, A were lord, and B his tenant, B could not ali- 
 enate any part of the feud, except with the lord's consent, 
 and on paying a fine for alienation; and in this case C, the 
 purchaser or alienee, would hold the feud of the lord A, 
 and not of B. But in the case of a sub-infeudation by B, 
 he merely carved out a new feud to C, who would hold the 
 feud of B by such services as should be reserved, whilst B 
 continued as before to hold of his lord A. Here, then, it 
 was manifest that A could demand no fine for alienation, 
 for a legal or technical alienation was not made; and B 
 though bound to services as usual, might be less able to 
 render them. Thus was taken away, not only the ne- 
 cessity of A's consent to the transfer of the land, and his fine 
 for alienation, but also the other fruits of tenure; and the 
 tenant gained his object nearly as effectually by sub-infeu- 
 dation, as he could have done by unrestricted aliena- 
 tion. To correct this practice, not however with the 
 view of preserving the fines for alienation, the celebrated 
 statute of Quia Emptores Terrurum, 18 Edward I. was 
 parsed. By that statute the vassal was allowed the full li- 
 berty of alienating the feud; but the alienee was compelled 
 to hold ihe lands of the alienor's lord, and not of his own 
 grantor. Sub-infeudation being thus wholly abolished, 
 and alienations allowed, the fine for alienation of course 
 ceased from that time; except that the immediate tenants 
 of the crown not being embraced by the statute of Quia 
 Emptores, this fine continued to be demandable from 
 them until, by the abolition of knight's service in the 
 reign of Charles II. all tenants were placed on the same 
 footing. 
 
 What has been heretofore stated in regard to the feudal 
 incidents of Wardship and Marriage on the Continent, will
 
 L ec t. X.] °F THE FEUDAL LAW. 557 
 
 be found to apply very generally to them as the) r appeared 
 in England. Although wardship of lands held by military 
 tenure be intelligible enough on the principle of that te- 
 nure, it is not quite so easy to explain the lord's right of 
 wardship of the person. In soccage tenure, the wardship 
 of the latter, as well as that of the land, belonged to the 
 next of kin who could not b}^ possibility inherit the estate; 
 a regulation much commended by the admirers of the com- 
 mon law, as contributing to the preservation of the heir's 
 life. The committal of the heir of a military tenure to 
 the custody of the lord of whom he held the lands, arose 
 in part, if not wholly, from the genius of the age, which 
 indicated as the proper instructor of the heir in warlike 
 exercises, him who was afterwards to receive the benefit of 
 his services; anit partly, also, from the justice of burden- 
 ing with the support and sustenance of the heir, him who 
 had in his hands the whole of the heir's lands. But 
 vvhencesoever this may have arisen, the lord had the cus- 
 tody both of lands and person, unless the minor's father 
 were living, who was guardian by nature, and was there- 
 fore entitled to the custody of his person. The age of 
 twenty-one years was the period of minority in males, and 
 fourteen in females; the man being deemed capable of 
 bearing arms, and the woman of marriage with some one 
 capable of the feudal duties, at those respective ages. 
 
 Thus much of the feudal incidents of military tenures in 
 England, which were nearly the same as those on the Con- 
 tinent, already spoken of. We may advert however, for 
 a moment, to the subject of Homage and Fealty. The for- 
 mer was done for an estate of inheritance only, and the 
 latter for an estate for life. Homage did not require an 
 oath, as fealty did, which was made with great solemnity 
 on the book. In England, therefore, homage and fealty 
 were always kept distinct, the homage being first done for 
 the more durable estate, and afterwards the fealty. But
 
 55S OF THE FEUDAL LAW. [Lect. X. 
 
 on the Continent, in some countries at least, they were 
 blended by the homage being done upon oath, and includ- 
 ing all the obligations of fealty. Another difference was. 
 that in England a tenant, having performed homage to the 
 ancestor, did not repeat it to the lord's heir, as was always 
 done in France. In England, also, the lands for which 
 either homage or fealty was done, were always specially 
 enumerated for the benefit of the lord and tenant, as also 
 for the information of the pares curiae, which was not the 
 case on the Continent. 
 
 (4.) Of the Cus- It has been stated in a preceding 
 torn of Gavelkind. section, that the Conqueror divided the 
 kingdom into 60,215 knight's fees, all of which were held 
 by a feudal military tenure. But there existed at the time 
 of the Conquest, another species of holding, called Gavel- 
 kind, which continues to subsist in the county of Kent, and 
 is a solitary relic of the Saxon estates. Lands thus held 
 were not forfeitable for felony, whence the proverb of 
 that country, 'the father to the bough, yet the son to 
 the plough:' and on the death of the ancestor,' the lands 
 descended equally to all the sons; or if a brother died 
 without issue, his lands went equally to his brethren. It 
 has been said that, prior to the Conquest, all the lands in 
 England were of the nature of gavelkind. This specific 
 holding was preserved only on condition of making the 
 eldest son the sole heir; and this was done throughout 
 England, except in Kent, where, according to an old 
 English author, the Kentishmen surrounded the Conqueror 
 with a moving wood of boughs, and successfully urged 
 him to confirm them in their ancient customs. 
 
 So late as the reign of Henry VI. all the lands in Kent 
 were held by gavelkind, except those in the possession of 
 a few wealthy individuals. By the statute 31 Henry 
 VIII. on the petition of many Kentish gentlemen, most of 
 the lands of that county were disgavelled, and now de-
 
 Lect. X.] OF THE FEUDAL LAW. 559 
 
 scend to the eldest son, according to the course of the com- 
 mon law. 
 
 The privileges of the custom hy gavelkind were very 
 great. 1. The tenant was capable of alienating by feoff- 
 ment at the age of fifteen. 2. The estate did not escheat 
 for any crime committed by the tenant, except treason. 3. 
 The estate descended to all the sons equally. 4. If a father 
 had two sons, one of whom died during the life of the fa- 
 ther, leaving a daughter, that daughter inherited jure re- 
 jtresentationis the part which would have descended to 
 her father; for though daughters were generally excluded, 
 yet they could inherit by representation. 5. Gavelkind 
 lands were often devisable. 6. The wife had a moiety 
 of her husband's lands as her dower, but during widow- 
 hood only, whereas the common law gives one-third for 
 her life. 7. The husband had curtesy in one half of his 
 wife's lands, though he never had issue by her; but he for- 
 feited the estate if he married. 8. If the husband had is- 
 sue by his wife, he then took all the lands by curtesy, and 
 retained them during his life though he should marry. 9. 
 All lands in Kent are presumed in law to be gavelkind, and 
 in any judicial pleading, they need not be averred so to be; 
 for the disgavelled lands, though at this time very general, 
 are still regarded but as exceptions to the custom, which is 
 the law of the land of that county. 10. The special cus- 
 tom of devising lands in Kent, is a matter which the courts 
 ex officio do not notice: it must be pleaded, as the custom 
 was not a general one appertaining to gavelkind lands. 
 
 It has been supposed by some that this holding is merely 
 a modification of the soccage tenure by county customs: 
 but others think that the high privileges we have enume- 
 rated did not belong originally to mere sockmen and pea- 
 sants, and that gavelkind is more likely to have been the 
 progenitor than the offspring of the soccage tenure. There 
 arose after the Conquest some other tenures, whose origin
 
 560 OF THE FEUDAL LAW. [Lect. X. 
 
 will be best explained by some account of the different 
 ranks of subjects in those times. 
 
 At that period the people of England 
 
 (5.) Of the differ- ,. ., , . . ,, . , „ , 
 
 K J , „ , . were divided into three great classes; 1. 
 ent ranks of subjects. CT 
 
 Various other tenures the Nobility; 2. the Gentry, or lesser 
 introduced after the nobility, likewise called Armigeri, from 
 Conquest. thejr fig nt i n g on horseback in complete 
 
 armour; and 3. the Commons. The Commons, again, con- 
 sisted 1. of Citizens and Burgesses, whether merchants or 
 artificers; 2. of Soccage tenants; and 3. of Villains; the 
 two last of whom were the cultivators of the soil. The 
 number of soccage tenants was so few, or perhaps their 
 privileges so inconsiderable and uncertain, that they are 
 scarcely distinguishable from the villains, although doubt- 
 less many of the inferior Saxon landholders must have ar- 
 rived at this stage of their progress to freedom and proper- 
 ty, anterior to the Norman conquest. From the villains, 
 however, the soccage tenants principally arose, as also the 
 tenants in Ancient Demesne, and Copyhold tenants, of af- 
 ter times, whose privileges and consideration grew with 
 the progress of trade and agriculture, and who now form 
 the great body of the English commons. 
 
 The word soccage is derived by some from soca, a 
 plough. Somner takes it from the Saxon word soc, liberty 
 or privilege, denoting thereby a free or privileged tenure. 
 This tenure is defined by Littleton to be where a tenant 
 holds by any certain service, in lieu of all other services, 
 so that the service be not military, or knight's service. It 
 is probable that it takes its name from soca, as before stated, 
 and that the original reservation was the ploughing of the 
 lord's lands, more especially as these tenants, taken from 
 the inferior ranks, and even from the villains, would 
 scarcely bear the designation of soc, free or privileged, 
 when all the nobility and gentry of the nation held by the 
 honourable tenure of knight's service, which, in contradis-
 
 Lect. X.] OF THE FEUDAL LAW. 561 
 
 • 
 tinction to that of Soccage, could not be considered less 
 
 privileged and free. I am not disposed, therefore, to adopt 
 the notion of some, that soccage tenure had a more noble 
 origin than what has been generally given to it, and that 
 gavelkind is merely a modification of this more privileged 
 holding. 
 
 Of these soccage tenants, the Burghers, or inhabitants of 
 the towns, were perhaps the earliest in obtaining defined 
 privileges, and some security of estates. Being generally 
 merchants and artificers, they collected, from various mo- 
 tives, into small communities, and their usefulness natu- 
 rally procured them some small immunities. On the Con- 
 tinent, more particularly in France, the kings, indeed, 
 found their account in fostering the communities or bo- 
 roughs in opposition to the slavish dominion of the lords 
 over their vassals; and a similar policy might, when these 
 boroughs obtained some consequence in England, have led 
 to similar effects. We know that enfranchisements were 
 granted to the burghers; charters and privileges conferred 
 on them; their taxes and lands given to them in fee-farm; 
 and a new free tenure finally brought into the law, known 
 as Tenure in Burgage. 
 
 But the great body of the inferior classes were the Vil- 
 lains. This order of men seems, among all the northern 
 nations, to have been formed out of the captives taken in 
 war. The depredations of the Danes, and the wars of the 
 Heptarchy, made them very numerous; and they were in 
 a state of servitude to which were incident the most igno- 
 ble, laborious and servile offices. They were of two kinds; 
 villains in gross, and villains regardant; the first belong- 
 ing to the person of the lord, the last annexed to the land, 
 and transferable with it. It seems to have been usual to 
 divide a manor into four parts; one for the military ten- 
 ants of the lord; another for the soccage tenants who 
 ploughed his demesne, or rendered to him corn, cattle &c. 
 71
 
 562 OF THE FEUDAL LAW. [Lect. X. 
 
 a third for the support of the villains who were employed 
 in felling timber, carrying manure, making inclosures, and 
 such like offices; and a fourth was permitted to lie fallow 
 or waste, for commoning the cattle of all these. It may 
 be seen from this distribution, that there being, in most 
 manors, land set apart for the use of the villains, called 
 Villain-land, it might retain its name, and be liable to the 
 same services, even after it came into the hands of freemen. 
 But as in this case the services would at least be reduced 
 to certainty, the tenure, though called villenage from the low 
 nature of the duties, was properly soccage, certainty of ser- 
 vices being the distinguishing feature of that tenure. And, 
 in time, the base duties themselves being commuted for 
 money rents, these tenures became the most advantageous 
 of any, as they were relieved from their servile character, 
 on the one hand, and made determinate in their extent, on 
 the other. 
 
 The nature of the tenure in villenage becoming thus 
 gradually changed for the better, and the unhappy condi- 
 tion of the villains themselves much amended, the law fa- 
 voured their enfranchisement in various ways; and we 
 find that the courts not only gave the most favourable in- 
 terpretation to express emancipations, but, in a manner 
 similar to that practised in the Roman law, sanctioned va- 
 rious implied modes of emancipation. Thus, for example, 
 if the lord executed to his villain an obligation or other 
 contract; or granted an annuity to him; or executed to 
 him a lease for life or years; or enfeoffed him; or sued him 
 in an action, and recovered, or was nonsuited after ap- 
 pearance; or if the lord married his nief, or female villain; 
 in all these cases the villain was manumitted by implica- 
 tion of law. By the Roman law, if a slave who had been 
 enfranchised became markedly ungrateful to his former 
 master, he could be reclaimed. This, however, was never 
 the case in England, the maxim there being, se?nei manu-
 
 Lect. X.] OF THE FEUDAL LAW. 563 
 
 missum, semper liberum. The implied manumissions 
 were more numerous than those we have stated; but 
 these sufficiently illustrate the principle. It was also 
 usual for the lord to emancipate villains expressly, in order 
 to convert them into soldiers and adherents. 
 
 From this class also arose the Copyhold tenants; for it 
 frequently happened that a succession of humane lords 
 forbearing to seize their villains' goods, or to exact villain 
 services, memory and proof of their servile condition 
 would be wanting, and they thus emerged into the rank of 
 freemen. As to their lands, although the lord could not 
 assure them to the villain by deed, (for this, being a con- 
 tract, would impliedly have emancipated him) yet the lord, 
 desirous that his villain should have some permanent es- 
 tate, as a bounty or reward perhaps for some eminent ser- 
 vices, would enter on the roll of his court that he had 
 given such a one an estate at will, to hold to him and his 
 heirs, or the heirs of his body; and this customary memo- 
 randum or direction being complied with, grew at length 
 into an established right, and such tenant was called 'Ten- 
 ant at will, according to the custom of the manor,' or Copy- 
 holder, the evidence of his estate being a copy of this en- 
 try in the lord's court-roll. 
 
 Tenants in Ancient Demesne were either soccage tenants, 
 freeholders or copyholders; and, whether one or the other, 
 they had some peculiar privileges, as they occupied the 
 king's lands. These ancient demesne lands were the es- 
 tates which the king had, as king, to support his family and 
 other expenses, and were originally unalienable by the 
 crown. But as the king could not cultivate them himself, 
 they were given out to soccage or villenage tenants, who, 
 from being supposed to be always in the service of the king, 
 possessed various immunities. Thus, they were exempted 
 from taxes imposed by parliament, unless specially named; 
 they were not taxed for the pay of the knights of the
 
 564 OF THE FEUDAL LAW. [Lect. X. 
 
 shire; they paid no toll for goods in market, if they con- 
 cerned husbandry and sustenance; they were exempted 
 from serving on juries; nor were they impleaded in any 
 but their own manorial courts. These high privileges con- 
 tinue at the present day, though the services to which 
 their tenure subjected them, have mostly been changed into 
 money, and the estates have very generally been alienated 
 from the crown. 
 
 (6.) Of the Royal The alienation of the demesne lands, 
 Revenues, and their and the decline of the feudal services and 
 various mutations. incidents? is? as con nected with the royal 
 
 revenues, a topic of some curiosity, and of additional in- 
 terest because not slightly interwoven with the progress of 
 liberty, and the rise of the Commons. Before, however, 
 we proceed to an examination of this subject, it may be 
 useful, as a preliminary, to explain a variety of terms fre- 
 quently occurring in the juridical history of England, and 
 concerning which students have often not very definite 
 ideas. The terms alluded to, are Scutage, Talliage, Hi- 
 dage, Customs, Subsidy, Aid, Benevolence, Tenths and 
 Fifteenths, Tax and Excise. A brief explanation of these 
 will better enable us to trace the various mutations which 
 have taken place in the royal revenue, and the means of 
 supporting the English government. 
 
 1. Scutage and Escuage are synonymous terms. 
 Every tenant of a knight's fee was originally bound to 
 serve the king in his army forty days in every year. This 
 personal attendance growing onerous, the tenants com- 
 pounded for it, first by sending a deputy, and afterwards 
 by making to the crown a pecuniary satisfaction. This 
 composition came at last to be levied by assessments, at a 
 certain sum for every knight's fee, under the name of Es- 
 cuage or Scutage, from scutagium, a shield. Some au- 
 thors, however, have derived this word from scutum, s 
 coin known in those davs.
 
 Lect. X.] OP THE FEUDAL LAW. 5fi5 
 
 The first recorded instance of a pecuniary commutation 
 for personal military services, occurred early in the reign 
 of the second Henry, when he planned his expedition 
 against Toulouse. Shortly after this, it became very ge- 
 neral, and, from circumstances, very onerous; so that in the 
 reign of John it was provided by Magna Charta, that no 
 scutage should be levied by the king or any lord, but by 
 the consent of parliament. The charter of Henry III. 
 omitted this provision, so that the prerogative of imposing 
 it was exercised as in the time of Henry II. Subsequent 
 statutes, however, ordained that no escuage should be im- 
 posed but by law; and from this power of parliament ori- 
 ginated the Subsidies and Land Tax of more recent times. 
 
 Escuage was of two kinds, viz. uncertain and certain. 
 If the commutation were uncertain, the tenure remained 
 knight's service; if certain, it became soccage; and Little- 
 ton says that when escuage is spoken of generally, it means 
 uncertain escuage; or, in other words, that the tenure by 
 knight's service is ever presumed in the first instance; but 
 if the escuage be specially referred to as certain, the ten- 
 ure is without doubt soccage. It has been contended by 
 some that escuage of any kind is not a tenure or service at 
 all, but a mere incident of tenure, as homage is. Of this 
 opinion is Madox. In his Treatise of Tenures, Wright 
 has taken, however, a middle ground, insisting that though, 
 in general, uncertain escuage was a fine, or sum of money, 
 payable as a commutation for personal services, yet anci- 
 ently a payment of money in proportion to the quantity 
 of land held by tenants in knight's service, was sometimes 
 a service originally reserved, and that in such cases the es- 
 cuage was certainly itself the tenure, and was so called in 
 contradistinction to the genuine tenure by knight's service. 
 It is manifest, however, (admitting Wright's views) that 
 Madox's observation applied altogether to the common 
 idea of escuage, viz. the commutation of personal military
 
 566 OF THE FEUDAL LAW. [Lect. X. 
 
 services for money or other things. Still we think that 
 Madox can be only partially correct; for if the escuage be 
 fixed, as it then becomes soccage, the escuage constitutes a 
 tenure, and cannot be regarded as a mere incident: it be- 
 comes then as much a tenure in soccage as if it had been 
 originally so reserved. 
 
 2. Talliage or Tallage. This was an assessment laid 
 by the king on such of his demesne lands as lay in cities or 
 boroughs; or by the lords who held lands in such places. 
 As the military services were converted into escuage, so 
 the services imposed by the tenure in burgage, which was 
 a soccage tenure, were also exchanged for a regular pecu- 
 niary assessment, and talliage was to the burgage tenure, 
 what escuage was to the tenure by knight's service. 
 
 3. Hidage. In the Saxon times every hide of land sup- 
 ported its soldier, and there was not, as in feudal times, 
 any personal service; but the land itself was liable to 
 yield certain fruits, which enabled the crown or the lord 
 to carry on wars. After the Conquest, this continued to 
 be the case as to all lands not feudalized. The hidage, 
 then, was a pecuniary composition paid by tenants holding 
 hides of land, in lieu of the grain, provision or work which 
 otherwise would have been due in proportion to the num- 
 ber of hides tenanted by them. These hidages were at 
 all times fixed as to amount, and time of payment. 
 
 4. Customs. These were sums of money, or portions 
 of a commodity, payable by merchants to the king; which 
 dues being established by long usage, took the name of 
 customs. They were payable by natives, denizens and 
 strangers, and were perpetual; whereas talliages, subsidies 
 &c. were imposed occasionally. How these customs have 
 been variously modified in modern times, will be known to 
 the student in the course of his professional reading, and 
 will be briefly observed on when we come to speak of 
 taxes.
 
 Lft r. X.j OF THE FEUDAL LAW. 567 • 
 
 Subsidy. This was introduced about the time of Ri- 
 chard II. and Henry IV. and took place, in some degree, 
 of scutage, hidage, talliage &:c. as a source of the royal re- 
 venue. It was imposed, not immediately on property, but 
 on persons in respect of their imputed estates, after the 
 nominal rate of four shillings in the pound sterling, where 
 the valuation was on lands, and two shillings and eight 
 pence in the pound on goods. The merchandise of aliens 
 paid in a double proportion. The clergy granted their sub- 
 sidies separately from the laity. The assessment of a subsi- 
 dy was made according to an ancient valuation of the landed 
 propertv of the kingdom: so that one subsidy, at that low 
 valuation, raised but about seventy thousand pounds. No 
 more than one subsidy, and two fifteenths on personal es- 
 tate, were anciently granted at any one time: but the Span- 
 ish invasion in 15SS induced parliament to depart from this 
 Ion 2: established rule, and Queen Elizabeth had two subsi- 
 dies and four fifteenths granted to her. As money sunk 
 in value, these subsidies were granted in greater numbers, 
 hat in 1640 Charles I. desired twelve subsidies from 
 the House of Commons, payable in three years. I decline, 
 as the student of English history cannot fail to become fa- 
 miliar with them, to dwell on the various kinds of subsidy; 
 such as the Inward or Old Subsidy: the New Subsidy, the 
 One-third Subsidy, the Two-thirds'" Subsidy, ice. 
 
 6. Tenths and Fifteenths. These were temporary 
 assessments issuing out of the personal property of the 
 kingdom, and were granted by parliament as exigencies 
 demanded. They were originally an actual tenth or fif- 
 teenth of the personal estate, that is. every tenth lamb, 
 sheep, hog, fleece, bushel of grain, fee; but if they were 
 ever paid in kind, it must have be^n early period 
 
 of history. The ninths, tenths and fifteen a 
 
 therefore, must be considered to mean those respective pro- 
 portions of a defined valuation of sonal estate of the
 
 568 OF THE FEUDAL LAW. [Lect. X 
 
 kingdom. The personal estate of every county and shire 
 was valued in the reign of Edward III. and amounted, at 
 the low rate of valuation employed, to twenty-nine thousand 
 pounds for the whole kingdom. Hence, when in more mo- 
 dern times parliament granted two fifteenths, for example, 
 every county, having the scale of valuation as recorded in 
 the Exchequer, could at once ascertain its proportion of the 
 tax, and those amounts were collected into the royal treasu- 
 ry. The tenth was the same tax in corporate towns, as the 
 fifteenth in the counties and shires, the former being liable 
 to pay only the tenth, whilst the latter paid a fifteenth part 
 of the valuation put on personal estate. The tenths and 
 fifteenths were of course invariable in amount, and diifered 
 in this respect also from a subsidy. 
 
 7. Aids. When the ordinary sources of revenue failed 
 to be effectual, a general contribution or Aid was granted. 
 The three customary ones for the purposes of making the 
 lord's eldest son a knight, for marrying his eldest daughter, 
 and for the redemption of his person from captivity, have 
 been already explained, but -are not the aids to which we 
 now allude as being a source of royal revenue. The king 
 occasionally requested or demanded aids to meet some un- 
 expected emergency of the state or of his household. As 
 these were often gratuitously granted, or supposed to be so, 
 they also took the name of 
 
 8. Bexevolexces. Whether these occasional sums were 
 in fact exacted by the king, or granted voluntarily by his 
 subjects, or as loans to enable the crown to prosecute some 
 favourite enterprise, they were called by the general name 
 of benevolence.-. 
 
 9. Excise. Customs are duties paid to government on 
 goods imported from foreign countries, or exported to 
 them; or on goods carried coastwise. The chief source, 
 however, of revenue from customs is imported merchan- 
 dise, the customs on exportation being chargeable on only 

 
 Lect. X.] OF THE FEUDAL LAW. 569 
 
 a few articles; and those on commodities carried coastwise 
 being imposed only on coals, slate and stone. The duties 
 of Excise, on the other hand, are altogether an inland im- 
 position, charged on a great variety of articles, either on 
 their consumption, or, more generally, on their retail sale. 
 The extreme unpopularity of excises arises, not from 
 their intrinsic inequality or injustice, for in this respect, as 
 well as in some others, they are preferable, as a mode of 
 taxation, to the customs; but from the arbitrary and sum- 
 mary manner in which they have at all times been collected. 
 The facility with which such duties might be evaded, in- 
 duced government to appoint for their collection commis- 
 sioners and officers invested with the power of searching 
 houses at any time of the day, and, in some cases, even by 
 night, for exciseable commodities. These powers are also 
 very summary; without trial by jury, and with little limi- 
 tation from the general principles of the common law. 
 
 Such powers are unavoidably abused, and being from 
 their nature inquisitorial, and invasive of the sanctity of 
 homes, have proved a source of complaint from their first 
 introduction. There is, however, a collateral benefit which 
 arises from this tax, namely, that it is frequently the means 
 of preserving exciseable drinks and provisions from nox- 
 ious adulteration. Excises were first introduced in Eng- 
 land in 1643, on the motion in the Commons of Mr Py mi- 
 me, although, only the year before, the Commons had de- 
 clared that the rumours of their intention to introduce an 
 excise were malignant and wholly unfounded, and that their 
 scandalous authors should be apprehended, and brought to 
 condign punishment. This tax was originally a war mea- 
 sure, growing out of the existing civil commotions, and 
 designed to be temporary. It was at first imposed on only 
 a few articles; these have been continually added to, so 
 that now the excise duties are not only a permanent tax, 
 72
 
 570 OF THE FEUDAL LAW. fLect. X. 
 
 but constitute one of the most abundant sources of the 
 royal revenue. 
 
 10. Tax. This word is nomen collectivum, but is yet 
 of comparatively modern use. It is derived from the 
 Greek Ta^, order or command. The tax, properly so 
 called, came in lieu of the various methods of levying 
 revenue, so that we now hear no more of scutage, hidage* 
 subsidy, tenths, fifteenths &c. since, all have given place to 
 the system of taxation. The imposition of taxes is a 
 branch of the legislative power, and was exercised, though 
 in a very limited degree, by the Saxons in their Wittenage- 
 mote, and subsequently by the Anglo-Norman parliaments. 
 On the full establishment of the feudal system in England, 
 the crown was almost entirely sustained by revenues de- 
 rived from its demesnes, and such occasional supplies as 
 were furnished in the modes already stated. The few 
 taxes levied in England in those times, were generally de- 
 manded by the king at his pleasure, until Edward I. obli- 
 gated himself and his successors to levy no tax but by the 
 consent of the realm. 
 
 It would be inconsistent with my general design to enter 
 into a minute explanation of the various species of tax 
 known to the history of English legislation. They are di- 
 vided, as we shall see more particularly hereafter, into two 
 great classes, viz. Perpetual and Annual. The former em- 
 brace the customs, the excise duty, the stamp duties, pos- 
 tages, the duty on salt, the duties on houses and windows, 
 on coaches, offices, pensions &c. The latter comprehend 
 the land tax and the malt tax; all of which will be briefly 
 remarked on presently. Customs, commonly called du- 
 ties, are a tax paid by the merchant on goods imported or 
 exported by him, though the term is more generally applied 
 to the former. These duties come under the head of indi- 
 rect taxes, because they are not upon things possessed and 
 retained, but on such as arc for consumption or sale, and
 
 Lect. X.] OF THE FEUDAL LAW. 571 
 
 hence are, in truth, paid by the consumer and not by the 
 merchant. Such customs, imposts or duties are scarcely 
 felt by the people, who generally confound them with the 
 price of the commodities, and are thus unconscious of the 
 fact of taxation; whereas direct taxation, though infinitely 
 smaller in amount, has been universally unpopular, and 
 sometimes odious with the people. Where the consumer 
 is made directly acquainted with the tax, as is more the 
 case with excises of every description, the people have al- 
 ways been found very unfr-iendly to it. 
 
 Having explained very briefly most of the terms con- 
 nected with the subject of the royal revenues, we have now 
 to recur to the feudal times, and take a hasty survey of 
 some of the sources of the royal revenues, from the period 
 of the Conquest; of the changes consequent on the aliena- 
 tion of the crown or demesne lands; and of the gradual de- 
 cline of the feudal incidents and services. 
 
 The revenue of the Norman kings was sufficiently ample, 
 from the extent of the crown lands, from their arbitrary 
 imposition of various burthens, and from the profits arising 
 from the numerous fruits of tenure. The alienation of the 
 demesne lands was however, from various causes, both ra- 
 pid and wasteful; and the interposition of several laws re- 
 strictive of their alienation, came too late to subserve any 
 valuable purpose. The expedient of arbitrary impositions, 
 under the name of loans, benevolences, purveyance &c. to 
 which the necessity of the kings forced them to resort, 
 was not suitable to the less tumultuary times which suc- 
 ceeded, and to the more settled notions of property, and 
 was consequently resisted and destroyed, step by step, in 
 the subsequent periods of the monarchy. The feudal in- 
 cidents shared the same fate. The people, by their more 
 improved condition and habits, and by changing their mili- 
 tary into civil feuds; and the judges, by an interpretation 
 suited to the spirit of the times; concurred to modify the
 
 57^ ( >F THE FEUDAL LAW. [Lect. \. 
 
 severity, and to restrain the limits of the feudal tenures. 
 The incidental operation, also, of several circumstances, 
 such as the payment of fixed money rents, instead of the 
 performance of personal services, which money rents be- 
 came continually less in proportion to the greatly increas- 
 ing value of estates, diminished very sensibly the amount 
 of the perquisites of the feudal lords, and of the revenues 
 of the crown. The abolition of the court of Wards and 
 Liveries after the Restoration, and the conversion of mili- 
 tary into soccage tenures, which soon followed, put a final 
 end to the intolerable grievances of a system which had 
 oppressed England for several centuries. The sources of 
 royal revenue being now greatly impaired, it became neces- 
 sary to provide in their stead a more certain and determi- 
 nate income. The land-tax, in its modern shape, took 
 place of those methods of rating property, and persons in 
 respect of their property, of which I have just spoken. It 
 has been stated that the assessment on which the subsidies 
 were founded, being made according to an ancient valua- 
 tion of lands, a subsidy in the time of queen Elizabeth fell 
 as low as seventy thousand pounds; while a modern land-tax 
 yields something more than two millions. From various 
 causes a subsidy, in succeeding reigns, yielded still less, and 
 went on continually decreasing. Thus, a man was taxed only 
 in his own county or shire, though he had an estate in others, 
 of which only loose estimates would be made, the favour 
 running naturally against the crown; losses in the value of 
 estates were exaggerated, and improvements carefully con- 
 cealed; and while the small proprietors went to decay, the 
 large did not increase the amount of their subsidy. 
 
 On the commencement of the civil wars between Charles 
 and his parliament, the latter, in order to raise a revenue, 
 introduced the practice of laying weekly and monthly as- 
 sessments of a specific sum on the counties, levying them 
 both on lands and personal estates. And after the Restora-
 
 Lect. X.] OP THE FEUDAL LAW. .573 
 
 tion, the monthly assessments being now established by- 
 custom, producing a more certain revenue, and being raised 
 by commissioners named by parliament, the subsidies, in 
 turn, fell into total disuse, and assessments were granted as 
 the national emergencies required. Hence we see the in- 
 correctness of the popular opinion that the land-tax was 
 first introduced in the reign of William III. as all the im- 
 posts we have mentioned, except the tenths and fifteenths, 
 were land-taxes. In William's reign, however, a new as- 
 sessment of estates took place, according to which a supply 
 of five hundred thousand pounds was equal to one shilling 
 in the pound of the value of estates then given in. The 
 method of raising it was by charging a particular sum on 
 each county, assessed on individuals according to both their 
 real and personal estates. This substitution of a tax on the 
 people in lieu of the revenue of demesne lands, and the 
 fruits of tenancies in capite, was eminently calculated to 
 diminish the arbitrary power of the sovereign. Yet the 
 first effects of this dependence of the king on the repre- 
 sentatives of the nation for a supply, were happy neither 
 for him nor his subjects; the former being too frequently 
 driven by the dilapidation of the royal estates, and the di- 
 minution of the feudal fruits, to adopt those irregular 
 methods of supply which had now become odious; and the 
 latter, while they resisted these arbitrary exactions, being 
 with difficulty brought to understand that the real exigen- 
 cies of the crown were their own. Hence those everlast- 
 ing disputes respecting subsidies and exactions which em- 
 broiled the kings with their parliaments; and much apology 
 is certainly to be made for the unhappy race of Steuart, 
 who, between their poverty and their attachment to an an- 
 cient prerogative, became the victims of the new born in- 
 dependence of the times. The last time that taxes were 
 levied by way of subsidy, was when the Commons voted
 
 574 OF THE FEUDAL LAW. [Lect. X. 
 
 to Charles II. four subsidies, to relieve him from the pre- 
 carious state of his revenue. 
 
 The royal revenues embrace, or formerly embraced, 
 a variety of other perquisites besides those we have men- 
 tioned; and as the abolition of the feudal tenures after the 
 Restoration, rendered it necessary to remodel the revenue 
 system, it may be useful to present the student with a ge- 
 neral view of the subject, which we shall endeavour to 
 render as brief as possible. 
 
 The entire revenues of England are divided into two 
 great classes, Ordinary and Extraordinary. The former is 
 subdivided into Ecclesiastical and Temporal; and the latter 
 into Annual and Perpetual. 
 
 The Ordinary Ecclesiastical revenue may arise, 
 
 1. From the custody of the vacant temporalities of arch- 
 bishops and bishops. The king, in legal contemplation, 
 being the founder of all the bishoprics in the kingdom, 
 they revert to him on becoming vacant, and also that they 
 may be preserved until a successor is appointed. The 
 mesne profits, however, belong to the crown, without any 
 account of them to the successor. Some of the kings 
 were in the habit of keeping the sees vacant, that they 
 might enjoy the temporalities, and commit destructive 
 waste. They sometimes even refused to restore them un- 
 less purchased at a very onerous price; and with these 
 views, queen Elizabeth kept the see of Ely vacant nearly 
 twenty years. This source of revenue is at present nearly 
 nominal. 
 
 2. Corodies appertaining to every bishopric, were an- 
 ciently another source of ecclesiastical income. This is a 
 right possessed by the king of sending one of his chaplains 
 to be maintained by a bishop, or of having a pension al- 
 lowed him, until the bishop promotes the chaplain to a 
 benefice. This, also, has gone into total disuse. 
 
 3. Extra-parochial tithes. In such places as are not 
 within the limits of any parish, as forests, the king is en-
 
 Lect. X.] OF THE FEUDAL LAW. 575 
 
 titled to all tithes, he not being a mere layman, but perso- 
 na mixta. 
 
 4. The first fruits and tenths of all spiritual preferments 
 vest in the king, as the spiritual head of the church. These 
 are now vested in perpetual trustees, by statute 2 Anne, 
 so as to constitute a fund for the augmentation of poor 
 livings, and are known by the name of Queen Anne's 
 Bounty. 
 
 The Ordinary Temporal revenue arises, 
 
 1. From the profits of the king's demesne lands, as has 
 been previously stated. 
 
 2. From the hereditary excise granted by parliament to 
 Charles II. his heirs and successors, in lieu of the profits 
 of feudal tenures, and the right of purveyance and pre- 
 emption; all of which were abolished in that reign. Pur- 
 veyance and pre-emption consisted in the prerogative right 
 of purchasing through the king's purveyors, any thing 
 they might require for his household, at an appraised va- 
 luation, in preference to all others, and even against the 
 consent of the owners; and also of impressing the subjects' 
 horses, carriages &c. to carry on the king's business, at 
 such prices as the purveyors should affix. 
 
 3. Profits arising from licences granted by the crown to 
 retail wines. These, in addition to the hereditary excise 
 just mentioned, were settled on Charles II. in compensa- 
 tion of the feudal and other revenues of which he had been 
 deprived. They were abolished, however, by statute 30 
 George II. c. 19, and in lieu thereof, parliament granted an 
 annual sum of seven thousand pounds, issuing out of the 
 new stamp duties on wine-licences. 
 
 4. Profits arising from the royal forests, by amercement 
 t© be imposed by the Forest Courts for violations of the 
 game laws. This source of revenue is now almost wholly 
 unknown.
 
 576 OF THE FEUDAL LAW. [Lect X. 
 
 5. Profits accruing from the courts of justice. They 
 consist of fines imposed on offenders against the criminal 
 laws of the country; sums forfeited under recognizances; 
 amercements levied on defaulters; fees of various kinds 
 on the issuing of legal process, affixing seals &c. Most of 
 these are now granted out to subjects, or appropriated to 
 defined uses, so that few of them come into the royal trea- 
 sury. 
 
 6. Royal fish, consisting of whales and sturgeon, which, 
 if cast on British shores, or caught in their vicinity, be- 
 long to the crown. This prerogative is said to have arisen 
 as a compensation to the king for the protection given by 
 him to the seas against pirates; and also that the queen's 
 wardrobe may be supplied with whalebone! 
 
 7. Wrecks were also at one time a source of revenue. 
 If a vessel were wrecked, or lost at sea, and any of the 
 cargo came to land, it belonged to the king, for the reason 
 first assigned for vesting in him the royal fish. Henry I. 
 ordained that it should not be considered wreck where any 
 person escaped alive from the vessel. Henry II. extended 
 this to the escape of any living creature, provided the 
 goods were claimed within three months. Richard I. went 
 still further, and made it no wreck if the owner were ship- 
 wrecked" and escaped; if he perished, his children, bro- 
 thers or sisters should have all; but in default of such re- 
 latives, it vested in the king. This humane feeling was 
 again further expanded in the reign of Henry III. who 
 provided that it should not be wreck whenever the goods 
 could be identified. By the statute 3 Edward I. the time 
 for reclaiming the goods allowed by Henry II. was extend- 
 ed to a year and a day; but it enacted that if any man, 
 dog or cat escaped, it should be no wreck. This statute 
 threw the law of this subject into temporary confusion; 
 but the courts decided, first, that the animals mentioned 
 were merely named by way of example; and finally, that
 
 tect. X.] OF THE FEUDAL LAW. 577 
 
 if the goods could be identified in any way, they were not 
 wreck; so that the law was restored to the condition in 
 which it was prior to the statute of Edward. At this 
 time, the goods, if not of a perishable nature, must be 
 kept by the sheriff of the county for a year and a day, 
 and if not then reclaimed, vest in the king. If they are 
 perishable, the sheriff must sell them, and the proceeds 
 will, in like manner, be refunded to the owner, or pass 
 into the royal exchequer. 
 
 8. Royal mines. All gold and silver mines discovered 
 within the kingdom belong to the crown, as it alone pos- 
 sesses the power of coinage, and should therefore be fur- 
 nished with the materials. If mines of other metals be 
 discovered, but with the precious metals present in them, 
 they are not royal mines; but the king is entitled to the 
 gold and silver taken from them, on paying for them as 
 base metal, this being the only object for which the mines 
 can be legitimately wrought. 
 
 9. Treasure-trove. This consists of gold, silver, plate 
 or bullion found hidden in the earth or other private 
 places, the owner being unknown, and not subsequently 
 ascertained. These belong to the king. In England, as 
 well as in feudal countries generally, death was the penal- 
 ty of concealing treasure-trove from the king; but it is 
 now punished only by fine and imprisonment. 
 
 10. Waifs. If goods are stolen and waived, or cast 
 away, by the thief in his flight, they vest in the king, as 
 a punishment of the owner for not making fresh pursuit 
 after the thief. If the goods are taken by the owner be- 
 fore a seizure is made for the king's use, though at any pe- 
 riod after the theft, they return to the owner, and cannot 
 be made waifs. The goods of foreign merchants never be- 
 came waifs. 
 
 11. Estrays. These consist of certain valuable animals 
 which have strayed from their owner, who remain? un- 
 
 73
 
 578 OF THE FEUDAL LAW. [Lect. X. 
 
 known. They vest in the king, after compliance with cer- 
 tain means for ascertaining the owner. This prerogative 
 has generally been granted by the crown as a franchise to 
 the lords of manors. 
 
 12. Forfeitures. The laws of England, from the ear- 
 liest times, have attached to the commission of certain 
 crimes a total forfeiture of personal property, and a tempo- 
 rary, and sometimes absolute confiscation of lands. All pro- 
 perty is the creature of positive law, and when a member of 
 society violates its fundamental regulations, and shows him- 
 self no longer worthy of protection to himself and proper- 
 ty, his possessions revert to the common stock, unless ex- 
 press provision to the contrary is made in behalf of his re- 
 latives, as is the case in some countries. In England they 
 vest in the king, in whom the dignity and sovereignty of 
 the nation are supposed chiefly to reside. At one period 
 forfeitures were a prolific source of revenue to the crown. 
 But the severity of penal jurisprudence has been greatly 
 mitigated as religion, knowledge, and the true theory of 
 government came to be better understood, and more gene- 
 rally diffused. 
 
 13. Deodands. This is a forfeiture of certain personal 
 things, not as a direct punishment for crime, but rather as 
 a means of rendering persons more cautious of human life. 
 If any personal thing happened to be the immediate instru- 
 ment of the death of any one, it became forfeited to the 
 king, under the name of deodand, because it was to be ap- 
 plied by the king's almoner to pious uses. It is usual at 
 the present day for the jury who pass on the case, to con- 
 fiscate, if practicable, some very inconsiderable part of the 
 thing which occasioned the death; as a wheel instead of the 
 entire carriage. Deodands have not been unknown to the 
 jurisprudence of this country. They were abolished in 
 Maryland only as late as the year 1S09.
 
 Lect. X.] OF THE FEUDAL LAW. 579 
 
 14. Escheats. In legal contemplation, all the lands in 
 England are derived from the crown. If, therefore, any 
 one dies leaving no legal heirs, his real estate reverts to, 
 and vests in the king. 
 
 15, The last source of the king's ordinary temporal 
 revenue is his custody of the estates of idiots, which is 
 vested in him as the magnus parens patrise. 
 
 The king, from a very early period, had the wardship of 
 the lands of such persons, and after suitably maintaining 
 them, appropriated the surplus revenue to his own use. 
 This prerogative formerly belonged to the lord of the fee; 
 but the king obtained it sometime prior to the statute 17 
 Edward II. c. 9, as that statute was certainly in affirmance 
 of the then common law.* 
 
 The various sources of ordinary ecclesiastical and tem- 
 poral revenue which we have enumerated, having in time 
 become unproductive, or at least inadequate to the support 
 of government, it became necessary to resort to other 
 means, and these constitute what is called the Extraordi- 
 nary revenue. This consists of various species of tax im- 
 posed by the Commons, who in parliament usually resolve 
 themselves into a committee of ways and means, to delibe- 
 rate on a scheme of taxation, generally proposed to them 
 by the Chancellor of the Exchequer. 
 
 These taxes are either Annual or Perpetual. The Annual 
 extraordinary revenue chiefly consists of the land-tax and 
 the malt-tax. The former has been mentioned as having 
 superseded hidage, talliage, subsidy &c. It is raised by 
 charging on each county a specific sum, according to a valu- 
 ation given in 1692, and this sum is apportioned by com- 
 missioners, and charged on individuals owning lands; for 
 the payment of which their personal as well as real estate 
 is liable. By the recent statutes 38 and 42 George III. 
 the land-tax has been made perpetual. 
 
 * 4 Coke's Reports, 126.
 
 580 OF THE FEUB-AL LAW. [Lect. X. 
 
 The m alt-tax, which originated in 1697, remains annual, 
 and is an excise, not only on malt, which gives name to the 
 tax, but on various liquors the consumption of which 
 would much interfere with the use of malt. This tax 
 generally raises the nett sum of about six hundred thou- 
 sand pounds. 
 
 The Perpetual extraordinary revenues are various, and 
 consist, 
 
 1. Of Customs. These are duties imposed on imports 
 and exports, and have been explained as far as our limits 
 will admit. Some small ones, however, have not been 
 mentioned. These are first, the Alien's duty, a petty 
 custom of threepence in the pound, paid by aliens for all 
 commodities exported or imported by them, and which are 
 in addition to the ordinary customs of the realm. This 
 duty, however, the legislature had the good sense to re- 
 peal by statute 24 George III. except as to the city of 
 London, in which a small duty, called scavage, is still ex- 
 acted on the goods of aliens. Secondly, Prisage or But- 
 lerage on wines. This consisted of the right of taking 
 two tons of wine from every English or foreign vessel 
 which imported twenty or more tons of wine. It was 
 commuted by Edward I. for two shillings duty on every 
 ton imported by aliens; and this took the name of butler- 
 age, because it was paid to the king's butler. Thirdly, 
 Subsidy. This was a small duty imposed by parliament on 
 the three staple commodities, wool, woolfells and leather, 
 in addition to the regular customs, which were called cos- 
 tuma antiqua et magna, in contradistinction to these va- 
 rious petty customs, which took the name of costuma par- 
 va et nova. Fourthly. Tonnage was the regular duty on 
 all wines imported, payable after a certain rate for every 
 ton, and was exclusive of the prisage or butlerage. Fifth- 
 ly. Poundage was an ad valorem duty of a shilling in the 
 pound on all merchandise whatever. Tonnage and pound-
 
 Lect. X.] OF THE FEUDAL LAW. 581 
 
 age were usually granted by parliament to the king at the 
 same time, and took the name of the Subsidy of tonnage 
 and poundage. These minute distinctions are at the pre- 
 sent day but little regarded by any but the officers of the 
 customs, the general result being embraced under the com- 
 prehensive term, customs. 
 
 2. Excise on things consumed, or on the retail sale 
 thereof, is the next great division of the perpetual extra- 
 ordinary revenue, and has been already sufficiently ex- 
 plained.* 
 
 3. Duty on Salt. This is an excise of three shillings and 
 four pence imposed on every bushel of salt by various sta- 
 tutes, commencing with those that were passed in the reign 
 of William III. It is not usual to class this duty with the 
 excises; but this appears to be merely because it is not un- 
 der the direction of the usual excise commissioners. This 
 tax was temporary until the statute 26 George II. c. 3, 
 made it perpetual. 
 
 4. Postage, or the duty imposed for the carriage of let- 
 ters, also belongs to this head of perpetual extraordinary 
 revenue, and was fully established in the year 1654. This 
 has been found at all times a very popular species of tax, 
 and has likewise proved a very productive one. 
 
 5. Stamp duties. These are taxes imposed on various 
 written aftd printed instruments, whether of a legal or 
 merely private nature; so that parchment and paper for 
 these purposes must be stamped, and cannot be obtained or 
 used unless the tax be paid at the same time. Mercantile 
 instruments of nearly every description; legal proceedings 
 of most kinds; almanacks, newspapers, pamphlets of less 
 than six sheets; wine-licences, &c. require to be stamped; 
 the tax to be paid, varies in amount from a penny to ten 
 pounds. This duty was first imposed in the reign of Wil- 
 
 * Vide supra, 568. 575.
 
 582 OF THE FEUDAL LAW. [Lect. X. 
 
 liam and Man*, and has continued ever since to be a pro- 
 fitable but rather unpopular tax. 
 
 6. House-tax. This tax, in one form or other, is of 
 great antiquity. It is mentioned in Domesday Book under 
 the name of fumage, it being a small sum due by custom 
 to the king for every chimney in a house. This was made 
 in the reign of Charles II. a legal and perpetual tax of two 
 shillings on every hearth. This hearth money becoming 
 very unpopular, it was abolished by statute 1 William and 
 Mary, but was revived under a new name, by statute 7 
 William III. by a tax on all houses except cottages. Its 
 amount has greatly fluctuated; but by statute 4S George III. 
 it ranges from one shilling and sixpence to two shillings 
 and ten pence in the pound of the yearly rent or value, 
 from five to forty pounds and upwards. This has been 
 somewhat reduced by the late statute 4 George IV. 
 
 7. The window-tax was first imposed by statute 7 Wil- 
 liam III. c. 18, and was only where the windows exceeded 
 nine in each house. By statute 4S George III. c. 55, the 
 amount of tax ranges from six shillings and sixpence to 
 ninety-three pounds, two shillings and sixpence, in propor- 
 tion to the number of windows from six to one hundred 
 and eighty; and every window exceeding that number 
 pays the additional sum of three pounds. 
 
 8. Tax on male servants. This was first imposed by 
 statute 17 George III. and embraces nearly every male ser- 
 vant except those employed in trade, manufactures and 
 husbandry. By statute 48 George III. the minimum, or 
 tax for one servant, is two pounds four shillings, and for 
 eleven and upwards, seven pounds one shilling. Bachelors 
 pay the additional sum of one pound fourteen shillings for 
 each male servant. These rates were considerably reduced 
 by statute 4 George IV. c. 11. 
 
 9. Hackney-coach-licences. This tax commenced in 
 1654, and has continued ever since. It produces annually 
 about twenty-six thousand pounds.
 
 Lect. \ OF THE FEUDAL LAW. 583 
 
 10. Offices and Pensions. This is a tax of one shilling 
 in the pound on all salaries, fees and pensions which 
 exceed a hundred pounds per annum. It was introduced 
 by statute 31 George II. and has always been a very popu- 
 lar tax. 
 
 Formerly all these taxes were funded separately for the 
 payment of monies loaned to government on their respec- 
 tive credit. This being found inconvenient, as the taxes 
 were continually increasing in number, they were at length 
 all united into three distinct funds, and pledged in like 
 manner, with the superadded faith of parliament. These 
 three funds, namely, the Aggregate, General, and South- 
 Sea Funds, discharge, in the first instance, all interest and 
 annuities which were formerly charged on each distinct 
 fund; and the surplus is then consolidated, and constitutes 
 what is called the Sinking Fund, because intended gradually 
 to diminish or sink the national debt, which, from the time 
 of William III. to our own day, has increased from about 
 fourteen millions to the rather alarming amount of nearly 
 one thousand millions sterling! 
 
 The foregoing somewhat hasty account of the royal reve- 
 nues, from the Conquest to the present day, will perhaps 
 sufficiently contrast the servile, precarious and extorted 
 revenues of feudal times, with the voluntary, secured and 
 liberal resources of a free and powerful government; which, 
 though it has waged continual wars, and on a scale infinitely 
 more extended than was known in the feudal ages, has 
 nevertheless fostered agriculture, commerce and manu- 
 factures, whilst the most liberal protection has been given 
 to religion and knowledge. The nation has sometimes 
 supplied the government for its annual disbursements with 
 not less than one hundred and twenty millions, a sum 
 which perhaps the rest of Europe would have been 
 scarcely able to supply. It is now time, however, that we 
 should part with this subject, and pursue the remaining to- 
 pics of the lecture.
 
 584 OF THE FEUDAL LAW. [Lect. X. 
 
 At the close of the preceding division 
 (7.) Of the Rise of r o 
 
 the English Cora- of our subject, I intimated that the dila- 
 
 mons ' pidation of the royal estates, and the di- 
 
 minution of the feudal fruits, induced the adoption of va- 
 rious arbitrary exactions, which, in the time of the Stuarts, 
 tended greatly to embroil the kings with their parliaments, 
 and finally terminated in the decapitation of Charles I. and 
 the abdication of James II. 
 
 No point of English history has so excited the prejudices 
 and discussions of party, as the character of the adminis- 
 tration of these princes. The Whig party consider them 
 as usurpers on the liberties of their people; the Tory, as 
 only exercising their ancient prerogatives, in times no 
 longer fitted for their exercise. To the latter conclusion we 
 own we have always leaned, since it must be confessed 
 that something is to be allowed for the force of monarchical 
 education, kings being generally taught to value as their 
 own the rights and prerogatives of their predecessors. 
 The controversy were less interesting to us at this day, had 
 it not involved the question of the ancient freedom of the 
 English constitution, and the antiquity of the House of 
 Commons. Every one will form his own judgment on 
 these questions, in his study of English history; but I can- 
 not forbear a few remarks on the genius of the English go- 
 vernment in the earlier times, as connected with the subject 
 of our inquiry. 
 
 Whatever equality the invaders of the Roman empire 
 might have brought with them from their forests, it is ap- 
 parent that it could not Icing exist in the new situation in 
 which they found themselves. Equality is easily preserved 
 where the nation is small and indigent, and as certainly 
 disappears in opposite circumstances. The whole history 
 of the feudal kingdoms proves the extreme inequality of 
 condition that prevailed; and the low estate of the commons 
 al thai time is so visible at every turn, that only the most
 
 Lect. X.] OF THE FEUDAL LAW. 585 
 
 fanciful theorist could imagine them to possess any weight 
 or consideration in the state. Causes which readily sug- 
 gest themselves, rendered this eminently the case under 
 the Norman kings; nor can we find that under the Saxon 
 government, circumstances were much more auspicious to 
 the body of the people. Whatever obstructions the royal 
 power found to its tyrannical exercise, were opposed by its 
 turbulent aristocracy; for this all the privileges, all the 
 charters, all the limitations of prerogative were created; and 
 during all these struggles, the people, properly so called, 
 were effectually out of view, because they formed no part 
 of the political state. Even when provision was made 
 against the tyrannical oppression of the king, the very 
 phrase shows the contemptibleness of the commons. Wm/- 
 his liber homo,' says Magna Charta; a phrase so far from 
 applying to the commons of England, or exhibiting any 
 care for their rights, that it in fact concerned that class only 
 which stood in contradistinction to the commonalty; liber 
 homo meaning any thing but those indigent and inconsi- 
 derable individuals from whom the English commons were 
 afterwards to arise. It is true, indeed, that every subject 
 of England at this day, appropriates to himself the benign 
 enactments of the charters and limitations of prerogative 
 alluded to, and that Magna Charta is now a panoply to all; 
 but we must look for the origin of this in times and causes 
 much nearer our own day. It is so far unnecessary to de- 
 monstrate this, that we cannot rationally come to any other 
 conclusion. It is certain that in F ranee the popular assem- 
 blies fell speedily into disuse, from their unwieldly nume- 
 rousness, and consequent unfitness for business. It is 
 equally certain that the Saxon Wittenagemote, which no- 
 minally consisted of all the principal landholders, was ill 
 attended. It is, we think, a mistake of the party cham= 
 pions who have approached this question, to imagine that 
 the privilege of attending these assemblies was duly esti- 
 74
 
 586 OF THE FEUDAL LAW. [Lect. X 
 
 mated, and eagerly used. The truth is that it was re- 
 garded as a burden, not as a privilege, and the business 
 fell naturally into those hands which larger interests and 
 comparative intelligence rendered fitter for it; and both in 
 England and France, the smaller landholders, after dimin- 
 ishing greatly in number and importance, and finally being 
 almost swallowed up, at length disappeared wholly from 
 these parliamentary assemblies. The Norman conquest, 
 moreover, had the necessary effect to confine the king's 
 counsellors, (so the parliament was called) to a small num- 
 ber, and those chiefly the great barons. William's sub- 
 jects were, on the one side, a conquered people; on the 
 other, an invading and, in great part, a mercenary army, 
 altogether dependent on the leader whom they had followed 
 both for honour and gain; circumstances little auspicious to 
 a free government, and a popular parliament. We would 
 desire any one who reads the history of those times with 
 the least impartiality, to point out, if he can, on what oc- 
 casions, whether small or momentous, the commons exer- 
 cised any influence, or even raised their voice in the par- 
 liaments. The soccage tenants were not considered as 
 holding by an honorable tenure; the burghers, who were 
 artificers and merchants, were perhaps still less regarded. 
 The only proper constituent members of the parliament 
 were the military tenants, that is, the tenants in capite of 
 knight's fees, of whom the whole number, for some time 
 after the Conquest, might be about seven hundred, and 
 who, together with the bishops and abbots, sat in one body. 
 The introduction of the representatives of the commons 
 into the parliament took place some ages after this period. 
 It was a measure prompted, as well by the pecuniary ne- 
 cessities of the monarch, as by the increasing importance 
 of the commons; and this representation had then become 
 as natural, and indeed unavoidable, as in earlier times it 
 would have been preposterous, and uncongenial to the
 
 Lect. X.] OP THE FEUDAL LAW. 5S7 
 
 strict feudal spirit. In fact, it is apparent that only the 
 great landholders were originally members of the na- 
 tional council; and as the sub-tenants were the pares in 
 their lord's courts, so the lords themselves were the pares 
 in the king's courts and council; and to have introduced 
 the lower vassals of any sort into the latter, would have 
 been as extraordinary a departure from feudal subordina- 
 tion, as that one lord should have been vassal to another, 
 and confounded himself with the peasants and artificers 
 who sat in the petty manorial assemblies. 
 
 The present constitution of the High Court of Parliament, 
 as also its legislative powers, have, therefore, been the 
 growth of time and circumstances. Originally an aristo- 
 cratic assembly, seldom convened but to settle some dis- 
 pute with the sovereign, who was himself little more than 
 a great baron; it has taken its present shape and order 
 from the various mutations in the power and wealth of the 
 respective classes of the state. Yet it may be admitted to 
 have been all along composed of those whose liberties and 
 property were actually concerned; in early times, of the 
 barons, who engrossed all that then existed of both; in 
 later days, of those who have gradually come to have a 
 share in these, and finally to possess them in an equal de- 
 gree. To heap excessive obloquy, therefore, on the unfor- 
 tunate Stuarts, who deemed themselves to be exercising 
 only their long established and unquestionable prerogatives, 
 and who thought they were resisting innovations, when 
 they opposed the new born spirit of the times, betrays 
 some share either of injustice or of ignorance. They had 
 the personal misfortune to reign in times when the unfit- 
 ness of the ancient system began to display itself, and 
 when men's minds received eagerly the principles of free 
 and limited government; and not having the policy, or, 
 we may allow, the capacity to understand and yield to the
 
 5SS OF THE FEUDAL LAW. [Lent. A. 
 
 growing improvement, fell, as has not seldom happened in 
 revolutions, the victims of false but honest prejudices. 
 
 . . Qf } M The severity of the feudal system in 
 dern English Ten- England had been considerably mitiga- 
 ures * ted even prior to the statute 12 Charles 
 
 II. to which I have several times alluded. The age of 
 chivalry and the crusades had gone by, and the romance 
 of military renown no longer retained its former attractions. 
 The people, becoming more settled in their habits, prefer- 
 red the peaceful occupations of agriculture and commerce; 
 and not only acquired thereby large additions to their phy- 
 sical comfort, but greatly changed their intellectual condi- 
 tion. This change in habits produced a correspondent 
 alteration in their feelings and manners, and seemed to de- 
 mand a like change in their laws and institutions. This 
 was effected in a considerable degree by the statute of 
 Charles II. which abolished the more obnoxious tenures, 
 and most of the feudal incidents, which had rendered the 
 system so justly odious. The student, nevertheless, must 
 not suppose that the scheme of feudal holding was abolish- 
 ed; or even, if the statute had so expressly ordained it, 
 that the numerous feudal principles incorporated with the 
 general jurisprudence of the country, through a series of 
 nearly six centuries, could have been thereby severed from 
 the existing laws and institutions. Neither of these ob- 
 jects, however, was contemplated by that statute. Some 
 feudal tenures, and many of their incidents, still remain; 
 and to these we are to add nearly the whole of those prin- 
 ciples to which the feudal laws and institutions had given 
 rise, and which at this day form so large a portion of that 
 extensive branch of legal learning which concerns landed 
 property. These considerations should strongly weigh 
 with students, to urge them to a diligent examination of 
 the system which we have partly considered.
 
 Lect. X.] OF THE FEUDAL LAW. 589 
 
 The progress of liberal principles during the time of the 
 civil war and the commonwealth, prepared the publick mind 
 for the entire removal of the onerous incidents of the mili- 
 tary feudal tenures. These were consequently abolished at 
 the Restoration, by the above named statute of Charles, 
 which enacted that the court of wards and liveries, and all 
 wardships, liveries, primer-seisins and ousterlemains, va- 
 lues and forfeitures of marriage, by reason of any tenure of 
 the king or others, be wholly taken away; and that all fines 
 for alienations, tenures by homage, knight's service and 
 escuage, and also aids for marrying the daughter, or knight- 
 ing the son, and all tenures of the king in capite, be like- 
 wise taken away: that all sorts of tenures held of the king 
 or others, be turned into free and common soccage, save 
 only tenures in frankalmoigne, copyholds, and the honorary 
 services of grand serjeantry; and that all tenures which 
 should be created by the king, his heirs or successors in 
 future, should be in free and common soccage. 
 
 The following are the tenures known to the jurispru- 
 dence of England since the passage of this statute. 1. 
 Free and common soccage. 2. Petit serjeantry. 3. Ho- 
 norary services of grand serjeantry. 4. Burgage tenure. 
 5. Ancient demesne. 6. Gavelkind. 7. Copyholds, of 
 two species. 8. Frankalmoigne. 9. Tenure by divine 
 service. They are divided into lay and spiritual; free 
 and base. All the lay tenures are either by free and cer- 
 tain services, embracing common soccage, grand and petit 
 serjeantry, burgage, ancient demesne and gavelkind; or by 
 base services, as by copy of court roll, which is a holding 
 either *'at the will of the lord,' or 'according to the custom 
 of manor.' Certainty of services is essential, and is the 
 great criterion which distinguishes all soccage tenures. In 
 all these cases the services are certain; but in copyholds 
 they are said not to be free or honorable; whereas in all 
 the other cases the services are free as well as certain.
 
 590 OF THE FEUDAL LAW. [Lect. X. 
 
 The spiritual tenures are also of two kinds, viz. by 
 frankalmoigne, and divine service. Both are free or ho- 
 norable; but the former is certain, the latter uncertain in 
 its services. Frankalmoigne consists in the duty of the 
 tenants, as, for example, any religious corporation, to per- 
 form various pious exercises, as prayers, masses &c. for the 
 souls of the grantor of the land and his heirs. This was the 
 tenure by which nearly all the monastic institutions, and 
 other religious corporations, held their lands. To this 
 tenure no fealty was incident; indeed this could not be 
 expected, as it is not a feudal tenure, properly so called, 
 and its exalted nature would also entitle it to be excepted 
 from the obligation of fealty. Tenure by divine service 
 required some special or certain spiritual service; as to say 
 five masses annually; to distribute twenty pounds per an- 
 num in alms, &c. It is said that frankalmoigne is an an- 
 cient Saxon tenure; and, even to the present day, the per- 
 son of whom the lands are held, cannot enforce the per- 
 formance of the tenant's duties by any of the modes known 
 to the feudal law. There is no other remedy than by 
 complaint to the Ordinary to have it corrected; distress, 
 forfeiture &c. being wholly inapplicable to this tenure. 
 With this exception, all the tenures are evidently feudal, 
 and are derived from the same source as knight's service. 
 
 I have had occasion to allude to the fact, that numerous 
 feudal principles remain in full operation in England, 
 though the causes in which they originated have long 
 since ceased to exist. It would be of little use to present 
 to the student a digest of these principles, as many of them 
 would perhaps be wholly unintelligible to him at this point 
 of his studies. It is sufficient to assure him that most of the 
 rules which regulate the descent of lands, and the limitation 
 and conveyance of such property, by deed or otherwise, 
 and many others, are either wholly of feudal origin, or are 
 the means contrived to get rid of the strict application of
 
 Lect. X.] OF THE FEUDAL LAW. 591 
 
 feudal principles. This will be made sufficiently obvious 
 when we come, in the Second Title of these Outlines, to 
 analyze the learning of the Real Law.* 
 
 (9.) Influence of We arc > lastl y> to make a few remarks 
 feudal law on Ame- on the utility of feudal learning to the 
 rican Jurisprudence. American jurisprudent, and the influence 
 of feudalism on the system of law generally known and 
 practised in these states. 
 
 Any one who has attentively studied the history of 
 English jurisprudence, particularly that portion of it which 
 relates to landed estates, cannot have failed to remark, as 
 we have just said, how much it has been fashioned either 
 by the feudalism which was once so prevalent, or by the 
 struggles of the courts, and occasionally of the parliaments, 
 to modify its rigours and stubborn technicalities. The 
 reciprocal relation of lord and tenant; the tenacity of the 
 former in maintaining the fruits of tenure, and enforcing 
 every feudal obligation; and the artifices of the latter in 
 endeavouring to soften or elude them; gave rise to a nu- 
 merous train of legal doctrines which either remain to the 
 present day in their integrity, or, although modified, great- 
 ly affect the general system, and can never perhaps be en- 
 tirely effaced from it. Feudality, indeed, lies at the very 
 foundation of the municipal or common law; and whatever 
 may be done by positive enactments, or even by judicial 
 legislation, to remodel the system, and expunge its feudal 
 lineaments, its heterogeneous origin, as well as its feudal 
 affinities and alliances, will still continue to manifest them- 
 selves. In this country, the common law is the basis of 
 our jurisprudence; and this, too, with comparatively slight 
 variations, or inconsiderable modifications of the originaL 
 
 * I beg leave to refer the student to Hoffman's Course of Legal Study, 
 19, Note 1, where some of these feudal principles arc mentioned, and the 
 utility of feudal learning is briefly vindicated.
 
 592 OF THE FEUDAL LAW. [Lcct. X. 
 
 If the laws and customs of most of the states have abolish- 
 ed many of the more obvious principles and rules which 
 are of feudal parentage, those which remain are still very- 
 numerous; and nothing less than a laconic enactment, which 
 shall annul the entire system, and supply its place with a 
 new code, could supersede the necessity of resorting to a 
 degree of feudal learning, for the due comprehension of 
 what of feudalism might remain in our jurisprudence. 
 Much of the nomenclature, the technicalities and the re- 
 finements of the common law, is confessedly of feudal ori- 
 gin; and in very many instances, which could be easily 
 mentioned, the courts of this country, in common with 
 those of England, illustrate their reasonings by continual 
 reference to the doctrines of feudal times, notwithstanding 
 that the causes which created them are no longer in practi- 
 cal operation in England, and never were so in this coun- 
 try. These doctrines, in fact, have become rules of pro- 
 perty; they give rise to others; and occasionally suffer 
 modification themselves; all which shows the necessity of 
 an acquaintance with the fount whence they sprung, and 
 with the particular reasons in which they respectively ori- 
 ginated. The Assurances of property in the United States, 
 and their various limitations, are essentially the same as 
 in England, and dependent, as they are there, on feudal 
 principles. So, also, the feudal Actions for the recovery 
 of lands, are, to say the least, as much used in this country 
 as in that from which we sprung. Though our canons of 
 Descent have been considerably changed, there are still 
 visible in them some traces of their feudal origin; and even 
 were this not the case, there would be a great necessity of 
 thoroughly comprehending the rules of English descent, as 
 several important branches of the common law are inti- 
 mately connected with thern; so that the utility of feudal 
 learning, as far as the law of inheritances is concerned, 
 would be still unquestionable. The larger part also, if not
 
 Lect. X.] OF THE FEUDAL LAW. 593 
 
 the whole, of that extraordinary system of law relating to 
 Remainders, or, in other words, that law which treats nf 
 such interests in lands as are limited to arise after the ex- 
 piration of some preceding estate, is of feudal origin, and 
 is as much the law of this country as of England. And 
 though such limitations are not quite as usual, and are by 
 no means as complicated with us, yet they are daily be- 
 coming more intricate, and in time will be equally com- 
 mon, since great individual wealth, which will soon appear 
 among us, cannot fail to originate the same voluminous fa- 
 mily and other settlements, and nearly all that compli- 
 cated machinery, which the pride of aristocracy, or the te- 
 nacity of avarice, deemed requisite in the mother country. 
 The law of Tenures, also, is nearly as important to be un- 
 derstood by the American as the British lawyer; for though 
 in both countries the feudal tie is nearly nominal, the same 
 feudal principles affect the law of landed estates in each, 
 and are nearly as operative at the present day, as they were 
 in the height of feudalism in England. We know, for ex- 
 ample, that the fictions and presumptions of law are attend- 
 ed by precisely the same consequences, and are just as ope- 
 rative, as if the matters assumed in them were realities. 
 The same remark applies to certain legal theories of the 
 feudal times; as, for example, that which annexes tenure as 
 an almost essential ingredient in the idea of landed proper- 
 ty. In some of the states of the Union, the legal notion 
 of tenure still obtains; many of our holdings are in free 
 and common soccage; and if by the theory of English law 
 all the lands of that country are of the gift or grant of the 
 crown, the same idea prevails here; for in perhaps most of 
 the states, every proprietor is considered as holding either 
 mediately or immediately of the state in which the lands 
 lie.* 
 
 * 3 Johnson's New York Reports. 
 75
 
 594 OP THE FEUDAL LAW. [Lect. X. 
 
 By the charter of Maryland the Lord Baron of Balti- 
 more and his heirs were authorized to create manors, with 
 courts-baron, and all things appertaining to them, with 
 views of frank-pledge &c* The Province itself was a 
 great fief or hunour, held of the crown by the tenure of 
 free and common soccage, and the power of sub-infuedation 
 was expressly conferred, maugre the statutes of Quia 
 emptores terrarum, and De prerogativd regis. The 
 State, after the Revolution was consummated, succeeded 
 to all the rights of the lord proprietor; but there was nothing 
 in that revolution which per se abolished tenure, and re- 
 lieved our citizens from the obligations of fealty, and 
 whatever feudal services had been reserved: nor could the 
 abolition of the Quit-Rents due to the heirs of the lord pro- 
 prietor, necessarily have that effect.! I am not aware of 
 any legislative act of this state which has abolished tenure, 
 and converted our holdings into pure allodium. The le- 
 gal obligation of fealty, therefore, may possibly remain, 
 though it is certainly dormant, and not probable to be re- 
 vived. In the state of Connecticut, however, these doubts, 
 as well as many others in regard to feudal doctrines, were 
 intended to be effectually removed by express legislation, 
 but, in regard to tenures, perhaps not with entire suc- 
 cess. The charter of that colony created a tenure of the 
 crown, and the General Assembly, in 1692, ordained that 
 their grants of lands should be held in soccage. By the 
 act of 1793, it was enacted that every proprietor of lands 
 in fee simple should hold the same absolutely, and in pure 
 allodium. % But whether that act designed only to declare 
 that all lands holden of the king by soccage tenure, should 
 be vested in their respective proprietors in absolute domi- 
 nion, is not very clear. Such an enactment, indeed, 
 
 * Charter of Maryland, sec. v. xviii. xix. 
 
 t Act of Assembly 1780, chap, xxiv 
 
 t Laws of Connecticut, title xcvii. chap. i. u.
 
 Lect. X.) OP THE FEUDAL LAW. 595 
 
 would have been perhaps unnecessary. Nor does the act 
 seem to embrace estates tail, for life, or for years, even if 
 construed to extend to holdings from individuals. If, 
 therefore, tenures in tail, for life, or years ever existed there, 
 it does not appear from any statute of that state within my 
 knowledge, that such tenures are abolished. In the state 
 of New York, all lands granted since the Revolution are 
 holden in pure allodium only; but such as were granted 
 prior to that period, are held by the tenure of free and 
 common soccage. * And the act just cited expressly re- 
 pudiates the idea that these soccage lands are to be held 
 exempted from the rents, services and fealty reserved to 
 the grantors. The quit-rents due to the king were not 
 abolished, but transferred to the state; they have, how- 
 ever, been in various ways nearly extinguished. It would 
 also appear that fealty, though expressly reserved by the 
 statute of 1787, has been very recently held to be due in 
 theory only.t It would be a little difficult, perhaps, to re- 
 lieve such a decision from the imputation of judicial legisla- 
 tion, however absurd the reservation of the act of 1787 may 
 have been. In the state of Virginia, the common law, and 
 all general statutes of England prior to the fourth year of 
 James I. are declared the rule of decision in that state until 
 repealed or modified; and all quit-rents &c. due to the king, 
 are vested in the Common wealth. $ By the act of 1777, ch. 
 2 sec. 9, it is provided, that in order that lands may not be 
 o-ranted on, or be subjected to any feudal tenure, quit- 
 rents shall be abolished. Notwithstanding this act, and 
 that of 1785, ch. 60, which abolished the right of primo- 
 geniture, and all preference of males over females in the 
 inheritance of estates, Mr Tucker, the learned editor of 
 the 'Commentaries,' remarks that subsequent legislatures 
 
 * Act of New York, 1787. 
 
 f 2 Cowen's N York Reports, 652. Cornell v. Lamb. 
 
 t Act of Virginia, May 1776, chap. V. sec. 6, 7.
 
 596 OF THE FEUDAL LAW. [Lect. X. 
 
 have manifested a strong disposition to revive some of the 
 maxims of the feudal system. This, no doubt, has been 
 the case; but independently of the enactments which may 
 have resulted from the disposition just mentioned, there 
 can be as little doubt that perhaps many hundred feudal 
 principles might be enumerated as operative at all times in 
 that state; and the same remark applies to nearly all the 
 states of the Union, as will be abundantly shown in the 
 ensuing volumes. 
 
 We have now finished our inquiries into the origin and 
 progress of feudalism. It has not only left on the muni- 
 cipal jurisprudence of every country in which it existed, 
 some deep and visible impressions, but has imparted to 
 the great system of European international law some fea- 
 tures which no times nor circumstances will perhaps ever 
 eradicate. These will be adverted to under the Seventh 
 title of these Outlines, which treats oi the 'Law of Nations.' 
 

 
 APPENDIX I. 
 
 SYLLABUS 
 
 OF THE CONTENTS OF THE FOREGOING LECTURES, 
 COMPREHENDING TITLE THE FIRST. 
 
 LECTURE I. 
 
 OF THE ORIGIN AND NATURE OF MAN, HIS PHY- 
 SICAL AND MORAL CONSTITUTION. 
 
 (1) Of the propriety of treating of Man's na- 
 ture, prior to the consideration of the science which 
 unfolds his rights and duties. (2) Idea of some 
 philosophers as to the triple nature of the soul, &,c. 
 (3) Man not merely a gregarious, but a social ani- 
 mal; and herein of the universality of Natural Ju- 
 risprudence. (4) Man endued with reason, and 
 progressive in knowledge. (5) Man a religious 
 animal. (6) Man a free agent. (7) Man's actions 
 imputable or not. (8) Society, Government, Reli- 
 gion and Knowledge congenial to man, and essential 
 to his happiness. (9) What is meant by the natu- 
 ral equality of man; and of the nature of moral ob- 
 ligation.
 
 598 APPENDIX I. 
 
 LECTURE II. 
 
 OF MAN IN A STATE OF NATURE. 
 
 (1) Why the state of nature is treated of. (2) 
 Its various meanings. (3) The state of nature 
 merely theoretical and metaphysical. (4) Its me- 
 taphysical sense is its only useful one. ( 5 ) Whether 
 the state of nature be one of war or of peace. (6) 
 Of the inconveniencies and mischiefs of the state of 
 nature. 
 
 LECTURE III. 
 OF THE RIGHTS OF NATURE. 
 
 (1) Various meanings of the word Right. (2) 
 Division of rights. (3) In what the rights of na- 
 ture consist. (4) Liberty is subject by natural law 
 to three species of restriction. 
 
 LECTURE IV. 
 
 OF THE ORIGIN OF PRIMARY SOCIETY, AND OF 
 CIVIL GOVERNMENT. 
 
 (1) Of Primary society, as distinguished from 
 political or civil society. (2) Of the motives which 
 induced men to establish civil society and govern- 
 ment; and herein, First, of the theory which as- 
 cribes the origin of government to a Divine com- 
 mand; Secondly, of the theory which supposes man 
 originally a solitary animal, and that society and go- 
 vernment sprung from various causes, such as 
 
 1. The social principle. 
 
 2. Sense of impotency. 
 
 3. Natural hostility.
 
 SYLLABUS. ,599 
 
 4. The urgency of our wants. 
 
 5. Sexual passion. 
 
 6. The love of knowledge. 
 
 7. Patriarchal government. 
 
 (3) History, and a knowledge of man's moral 
 and physical nature, are more to be relied on than 
 political systems. 
 
 LECTURE V. 
 
 OF THE RIGHT OF CIVIL GOVERNMENT. 
 
 (1) The right of civil government is either ori- 
 ginal or subsequent. (2) The original right sup- 
 posed to arise 1st, from Divine command; 2dly, from 
 the Consent of the governed. (3) Of the subse- 
 quent right of civil government; and 1st, that this, 
 as well as the original right, is founded on consent, 
 2dly, of the opinions that this subsequent right rests 
 either on 
 
 1. Possession. 
 
 2. Inheritance. 
 
 3. Prescription. 
 
 4. Ancient consent of the governed. 
 
 5. Virtues of political rulers. 
 
 6. Expediency. 
 
 LECTURE VI. 
 
 OF THE EFFECTS OF SOCIETY AND GOVERNMENT 
 ON THE NATURAL RIGHTS OF MAN. 
 
 ( 1 ) Jurisdiction and Law the necessary result of 
 the change from a state of nature to that of civil 
 Union. (2) Men are not reduced to a state of na-
 
 GOO APPENDIX I. 
 
 ture by a dissolution of the government. (3) Of 
 the effects of civil union on the right of personal 
 security. (4) Of the effects of civil union on the 
 right to the fruits of mental and bodily exertion. 
 
 (5) Effects of civil union on the right to reputation. 
 
 (6) Effects of civil union on the right to personal 
 liberty; and herein, 
 
 1. Of Natural liberty. 
 
 2. Social liberty. 
 
 3. Civil liberty. 
 
 4. Political liberty. 
 
 LECTURE VII. 
 OF LAW, AND ITS GENERAL PROPERTIES. 
 
 (1) Introductory remarks. (2) Of Law in the 
 abstract, and in the concrete. (3) Various defini- 
 tions of law as a genus and species, by Demos- 
 thenes, Aristotle, Cicero, Justinian, Bracton, Finch, 
 Grotius, Puffendorf, Saundersoh, Daws, Hooker, 
 Hobbes, Montesquieu, Burlamaqui, Barbeyrac, 
 Dagge and Blackstone. (4) Observations on the 
 foregoing definitions. (5) Proposed definitions. 
 (6) Properties of law, how divided. (7) Of the 
 internal properties of law; and herein, 
 
 1. Why law is a rule of action. 
 
 2. Of promulgation. 
 
 3. Of retrospective and ex post facto 
 
 laws. 
 
 4. Of sanctions. 
 
 5. Of obligation. 
 
 6. Of permissions.
 
 SYLLABUS. 601 
 
 (8) Of the external properties of law. 
 
 1 . These embrace the philosophy of le- 
 
 gislation. 
 
 2. Proposed outline of a code. 
 
 3. Rules of legislation. 
 
 LECTURE VIII. 
 
 OF THE LAWS OF NATURE APPLIED TO MAN IN- 
 DIVIDUALLY, WHETHER IN A STATE OF NA- 
 TURE, OR OF PRIMARY SOCIETY AND CIVIL 
 GOVERNMENT. 
 
 (1) Introductory remarks. (2) Definitions of 
 the Law of Nature. (3) Whether the Law of 
 Nature be common to man and brute, and how far 
 it is common to God and man. (4) Difference be- 
 tween the Law of Nature and Divine Positive Law, 
 and herein of the various theories advanced as to 
 the mode in which man became acquainted with the 
 laws of nature. 
 
 1 . From the Praecepta Noachidarum. 
 
 2. From Inspiration, either of superin- 
 
 tendency or of suggestion. 
 
 3. From Human Reason alone. 
 
 4. From Sentiment alone. 
 
 5. From Reason and Sentiment united. 
 
 6. From the Laws of Man alone. 
 
 (5) Whether the laws of nature may be derived 
 from the consent of mankind. (6) A further ex- 
 amination of this doctrine; and whether the law of 
 nature and of nations can extend to actions morally 
 indifferent. (7) Whether Hobbes's doctrine, that 
 
 1G
 
 602 APPENDIX I. 
 
 nature did not institute society but discord among 
 men, justifies the conclusion of his critics, that so- 
 ciety is against the design of nature. (8) Opinion 
 of Hobbes, that the dictates of reason can be re- 
 spected as laws only as far as God or man has en- 
 acted them as such. (9) Of the Primary and Se- 
 condary laws of nature. (10) The laws of nature 
 relate, 1. to man's duty to himself, and 2. to his 
 duty to his fellow creatures; and all these duties 
 are referred either to th°; Absolute or Hypothetical 
 laws of nature; and herein, 
 
 First. Of man's duty to himself ) which consists 
 principally in 
 
 1. The cultivation of his moral and re- 
 
 ligious nature. 
 
 2. The improvement of his intellectual 
 
 faculties, by the acquisition of all 
 useful knowledge. 
 
 3. The preservation of the health of his 
 
 body and mind. 
 
 4. The honest acquisition of property. 
 
 5. The pursuit of salutary pleasures. 
 Secondly. Man's duties to his fellow creatures are 
 
 1. Such as are Absolute, and oblige all 
 
 men, in all countries, and inde- 
 pendently of all human laws and 
 institutions. 
 
 2. Such as are Hypothetical, and 
 
 arise after the establishment of so- 
 ciety and laws; but which are ne- 
 vertheless founded on the condition
 
 SYLLABUS. 603 
 
 of mankind considered in general, 
 and do not flow from the mere po- 
 sitive law. 
 
 LECTURE IX. 
 
 OF POLITICAL, AS DISTINGUISHED FROM CIVIL 
 LAW; AND OF THE VARIOUS FORMS OF CIVIL 
 GOVERNMENT. 
 
 ( 1 ) Of political law, what it is, and how distin- 
 guished from civil law. Political state, how differ- 
 ent from civil state. (2) Of the exercise of go- 
 vernmental power, relative or not to the constitu- 
 tional and fundamental laws of a state. Of the na- 
 ture and objects of a constitution, and how affected 
 by the physical condition of the governed: And of 
 the necessity of laws varying with the great and ra- 
 dical changes in the genius of a people. (3) Of 
 the various Forms of government, and 
 
 First. Form of government defined, and how it 
 
 differs from a Constitution. 
 Secondly. Of the influence of government on in- 
 dividual and national character. 
 Thirdly. Various divisions of the Forms of govern- 
 ment, and herein of the divisions of 
 
 1. Plato. 
 
 2. Socrates. 
 
 3. Aristotle. 
 
 4. Polybius. 
 
 5. Charondas. 
 
 6. Zaleucus.
 
 604 APPENDIX I. 
 
 7. Cicero; and the opinions of 
 some of them as to ideal 
 forms of government. 
 Fourthly. Of distinguished moderns who have 
 contributed largely to the improve- 
 ment of political science, viz. 
 
 1. Machiavel. 
 
 2. Harrington. 
 
 3. Sidney. 
 
 4. Montesquieu. 
 
 5. Milton. 
 
 6. .Locke. 
 
 7. Hume. 
 
 8. Frederick II. of Prussia. 
 
 9. Confucius. 
 
 10. Bolingbroke. 
 
 1 1 . The authors of the Federalist. 
 
 12. Bentham. 
 
 13. The Emperor Napoleon: 
 With some account of the lives, and political wri- 
 tings of each. (4) A further division of civil go- 
 vernments, and a proposed classification of all con- 
 ceivable forms, viz. 
 
 I. Pure and Simple, viz. 
 
 1. Theocracy. 
 
 2. Patriarchy. 
 
 3. Simple Monarchy. 
 
 4. Simple Aristocracy. 
 
 5. Simple Democracy. 
 
 II. Pure and Mixed, viz. 
 
 1. Monarchy combined with aristocracv. 

 
 SYLLABUS. 605 
 
 2. Monarchy combined with democracy. 
 
 3. Aristocracy combined with demo- 
 
 cracy. 
 
 4. Monarchy, aristocracy and democra- 
 
 cy combined. 
 
 5. Quasi mixed republic, or quasi mix- 
 
 ed democracy, in which the various 
 Principles rather than the govern- 
 ments are combined. 
 
 III. Corrupt and Simple, viz. 
 
 1. Despotism or tyranny. 
 
 2. Oligarchy. 
 
 3. Ochlocracy. 
 
 IV. Corrupt and Mixed. 
 
 $3?* Either of the foregoing governments may be 
 
 1. Single. 
 
 2. Confederate. 
 
 These divisions and combinations explained and 
 exemplified. 
 
 LECTURE X. 
 
 OF THE FEUDAL LAW. 
 
 Part the First. 
 
 #&> Feudalism on the Continent. 
 Division I. Occupation of the conquered lands 
 by the Barbarians, and their allot- 
 ment among the Victors. 
 
 ( 1 ) Of Allodial property. 
 
 (2) Of Beneficia and Feuda. 
 Division II. Whether Beneficia were ever grant- 
 able during pleasure only; and how 
 they became hereditary.
 
 606 
 
 APPENDIX I. 
 
 Munera, Beneficia, Feuda, how they 
 differ. 
 
 Benefieia and Feuda divided into 
 Proper and Improper. 
 Nine species of improper benefices 
 or feuds explained. 
 Division III. How Counts and Dukes made their 
 
 offices hereditary. 
 
 Division IV. Causes of the prevalence of feudal 
 
 ovei allodial property, and of the 
 
 rise of Tenures. 
 
 Theories as to the origin of feuds. 
 
 Principal writers who have treated 
 
 of feuds. 
 Seven different species of feuds ex- 
 plained. 
 Division V. Qualities and incidents of feuds. 
 First, their general qualities, viz. 
 Homage. 
 Fealty. 
 Investiture. 
 Secondly, Their particular incidents or fruits, 
 viz. 
 Reliefs. 
 Primer Seisin. 
 Fine for alienation. 
 Attornment. 
 Escheat. 
 Aids. 
 Wardship. 
 Marriage.
 
 SYLLABUS. 607 
 
 Division VI. Causes of the rise of the Landed 
 Aristocracy, and of the orders 
 and ranks of subjects. Privileges 
 exercised by lords within their 
 fiefs, viz: 
 
 Coinage of Money. 
 Private War. 
 Taxation. 
 Legislation. 
 Judicial Jurisdiction. 
 Origin of Surnames and Armorial 
 
 Bearings. 
 The great variety of baronial cus- 
 toms and laws gave rise to serious 
 conflicts between the judicial deci- 
 sions of these various baronies, &.c. 
 $|f» Note on the doctrine de conflictu le- 
 gum. 
 Division VII. Progression of the feudal system 
 towards its modern form and as- 
 pect. 
 
 (1) Of the original extent and pro- 
 
 gressive enlargement of the royal 
 authority. 
 
 (2) Of the constitution of the national 
 
 councils^ and the mutations of the 
 legislative power. 
 
 (3) Of the gradual abolishment of ter- 
 
 ritorial jurisdiction; and of the 
 substitution of royal judicial ju- 
 risdiction.
 
 608 APPENDIX I. 
 
 Under the three foregoing heads are briefly 
 considered the growth of the Commons; the pro- 
 gress of Taxation; and the preservation of the Ro- 
 man Law, as it appears in France, Germany &c. 
 
 Part the Second. 
 
 $& Feudalism in England. 
 Division VIII. Of the feudal system in England, 
 and its influence on the juris- 
 prudence of that country, and of 
 the American states. 
 
 ( 1 ) Of the true aera of the introduction 
 
 of feuds into England. 
 
 ( 2 ) Of the changes effected by the Nor- 
 
 man invasion. 
 
 (3) Brief examination into the nature 
 
 of English feuds. 
 
 (4) Of the custom of gavelkind. 
 
 (5) Of the different ranks of subjects. 
 
 Various other tenures introduced 
 after the Conquest. 
 
 (6) Of the royal revenues, and their 
 
 various mutations from the time of 
 the Saxons to the present day. 
 
 (7) Of the origin and progress of the 
 
 English Commons. 
 
 (8) Of the modern English tenures. 
 
 (9) Of the influence of feudalism on 
 
 the jurisprudence of England 
 and the United States. 

 
 
 APPENDIX II. 
 
 AUTHORITIES. 
 
 ICP The citation of numerous authorities in the progress of 
 the work, has been avoided under the belief that students 
 would rather be confused than aided by them. They are now 
 referred to the following leading works and authorities, in ad- 
 dition to those already cited. These should be carefully read, 
 and, if practicable, in the order in which they are enumerated. 
 
 LECTURE I. 
 
 Man's moral and intellectual character. 
 
 Reid's Essays on the Powers of the Human Mind. 
 Smith's Theory of Moral Sentiments. Aristo- 
 tle's Ethicks, Gillies' Translation. Stewart's 
 First Dissertation, part 1. & 2. Good's Book of 
 Nature, vol. 2. Series III. 
 
 Man's physical character. 
 
 Lord Kaimes' Sketches of the History of Man. 
 Smith's Essay on the variety in the human form 
 and complexion. Blumenbach de generis huma- 
 ni varietate. White on the regular gradation in 
 man and animals. Lawrence's Lectures on the 
 Physiology of Man. Good's Book of Nature, vol. 
 1. vol. 2. Series II. lectures 7. 8. 9. 10. 
 
 77
 
 610 APPENDIX II. 
 
 LECTURE II. 
 
 The State of Nature. 
 
 Eunomus, Dialogue 1. sec. 17. Plowden's 
 Jura Anglorum, chap. i. Puffendorf, book 2. 
 chap. ii. 
 
 Hobbes de corpore politico, chap. i. Paine's 
 Rights of Man. 
 
 LECTURE III. 
 
 Rights of Nature. 
 
 Paley's Philosophy, 55 to 69. Burlamaqui's 
 Natural Law, vol. 1. part 1. chap. vii. Ruther- 
 forth's Institutes of Natural Law, vol. l.chap. i. 
 Puffendorf, book 2. chap. v. Campbell's Gro- 
 tius, vol. 1. 168 to 268. 
 
 LECTURE IV. 
 
 Origin of Primary Society, and of Civil Govern- 
 ment. 
 
 Goguet's Origin of Laws, vol. 1. Introduction, 
 
 book 1. articles 1. 2. Plowden's Jura Anglorum, 
 
 chap. ii. Rutherforth's Institutes, vol. 2. chap. ii. 
 
 Puffendorf, book 7. chap. i. 
 
 LECTURE V. 
 
 Right of Government. 
 
 Paley's Philosophy, book 4. chap. ii. Bur- 
 lamaqui's Institutes, vol. 1. part 1. chap. ix. Ma- 
 cauley's Rudiments of Political Science, 125 to 
 165. Puffendorf, book 1. chap. iv. book 7. 
 chap. viii. Locke on Government. Harring- 
 ton's Works, 364. Sidney on Government.
 
 AUTHORITIES. 611 
 
 LECTURE VI. 
 
 Natural Rights, how affected by Society and Law. 
 Rutherforth's Institutes, vol. 2. chap. v. viii. 
 Campbell's Grotius, book 2. chap. ix. 
 
 LECTURE VII. 
 
 Definitions and General Properties of Laios. 
 
 Burlamaqui's Institutes, vol. 1. part 1. chap, 
 vii. Rutherforth's Institutes, vol. l.chap. xviii. 
 Puffendorf, book l.chap. vi. Bentham's Prin- 
 ciples of Morals and Legislation. Bentham's 
 Fragment on Government, Preface. Ellis's Sum- 
 mary of Roman Law, 15. 61. 1 Dagge's Crimi- 
 nal Law, 2. 46. 3 Dagg. 91. Montesquieu's Spi- 
 rit of Laws, books 1. 6. and 29. 
 
 LECTURE VIII. 
 
 Laws of JYature. 
 
 Hooker's Ecclesiastical Polity, book 1. Burla- 
 maqui's Institutes, vol. 1. part 2. chapters i. ii. iii. 
 iv. v. Amos's Fortescue, chapters xv. xvi. Puf- 
 fendorf, book 2. chap, iii. Bentham on Go- 
 vernment, 109. St. Germain's Doctor and 
 Student, dialogue 1. chap. v. Ward's Laws of 
 Nations, chap. ii. Goguet's Origin of Laws, 
 book 6. 
 
 LECTURE IX. 
 
 Political Law, and Forms of Government. 
 
 Paley's Philosophy, book vi. Rutherforth's 
 Institutes, vol. 2. chapters iii. iv. x. Aristoti.i:*s 
 Politicks, vol. 2. Gillies' translation. Macauley's
 
 612 APPENDIX II. 
 
 Rudiments of Political Science. Puffendorf, 
 book 7. chap. v. Harrington's Political Apho- 
 risms. Harrington's Oceana. Machiavel's 
 Prince, and his Discourse on the first Decade of 
 Livy. Hume's Essays, vol. 1. part 2. Essays xii. 
 xiii. xvi. Amos's Fortescue, chap. xiv. Hallam's 
 Middle Ages, chap. viii. 
 
 LECTURE X. 
 
 Feudal Law. 
 
 Robertson's Charles V. vol. 1. Introduction. 
 Butler's Horae Juridical Subsecivae, 73 to 96. 
 Priestley's Lectures on History, chap. xlv. Gib- 
 bon's Roman. Empire, vol. 3. 323. Gilbert Steu- 
 art's Historical Dissertation, 62 to 120. Ward's 
 Law of Nations, vol. 1. chaps, xi. xii. Millar on 
 Ranks. York's Law of Forfeiture, 54 to 62. Mil- 
 lar on the English Government, vol. 1. 103 &c. 
 Montesquieu's Spirit of Laws, books 28. 30. 31. 
 Harrington's Works, 59 to 62. Blackstone's 
 Commentaries, vol. 2. chapters iv. v. Sullivan's 
 Lectures on Feudal Law. Turner's History of the 
 Saxon Government. Dalrymple on Feudal Pro- 
 perty. Wright's Tenures. Cruise's Digest of 
 the Real Law, vol. 1. chapter i.
 
 INDEX, 
 
 Page. 
 Absolute rights and duties 14, 15 
 
 iEsymetic government 400 
 
 Adams, John, his opinion of Sidney's Discourses .... 442 
 
 Adam and Eve, remarks on their situation 84 
 
 Aggregate fund 583 
 
 Aids 510, 553, 568 
 
 Alien's duty 580 
 
 Alienation, how different from subinfeudation . . . 509, 556 
 
 Alieuation, fine for 508 
 
 Allodial property 486, 499, 594 
 
 Alderman, its etymology 201 
 
 Ammonia, no criterion of animality 23 
 
 American jurisprudence, how affected by feudal law . . . 691 
 
 Animals, grow, live, and feel 14, 15 
 
 Anthropophagi, their practice commented on .... 344 
 
 Anglo-Saxons, their character 545 
 
 the Conqueror introduced feuds among the . 551 
 
 Ancient demesne, tenants in 560, 563 
 
 Annual revenues of the crown .... ... 576 
 
 Aristotle, his views of government 399 
 
 his definitions of law 257 
 
 Aristocracy, landed, its rise ........ 521 
 
 Armorial bearings, origin of 523 
 
 Asbestos, its nature 22 
 
 Atrabiliary temperament 64 
 
 Attornment 50S 
 
 Authority, how far to be respected ,.•... 1<> 
 
 Aulic council 
 
 Authority, royal, in France, its history 532 
 
 12 
 Bacon, Lord, quoted 
 
 Barbaric government, Aristotle's views of 400 
 
 357 
 Barbauld, Mrs, quoted
 
 his idea of useful knowledge 
 his life and writings 
 
 109 
 
 259 
 
 21 
 
 39 
 
 185 
 
 614 INDEX. 
 
 Barbeyrac's criterion of perfect rights .... 
 
 his definition of law ..... 
 
 Beaumont considers corals and sponges as minerals 
 
 Bellum omnia in omnia, its object 
 
 Bellarmine, his opinion of government jure divino 
 
 Bentham, his life and writings ...... 464 &c 
 
 Benevolences, a source of revenue 568 
 
 Beneficia ••••....... 487 
 
 whether ever granted at pleasure only .... 488 
 
 proper and improper 490 
 
 Biliary temperament 64 
 
 Bockland 548 
 
 Bolingbrokc, his opinion of pre-established harmony ... 60 
 
 his errour in supposing the Jews made beasts accountable 304 
 
 358 
 460 
 258 
 21 
 561 
 
 Brarton, his definition of law 
 
 Byssus, its singular nature 
 
 Burgage tenure 
 
 Butlerage on wines . 5§q 
 
 Cato, his repudiation of Marcia explained 343 
 
 Carneades, his philosophy 336 343 
 
 Children, whether they have a natural right of succession . . 139 
 
 Charondas, his laws and institutions 406 
 
 Citizen defined 243 
 
 Civil union, its effects » .- 
 
 ■ on personal security 226 
 
 on the right of property .... 235 
 
 on the right to reputation .... 239 
 
 on the right to personal liberty . . . 241 
 
 Civil liberty, how different from political .... 243 247 
 
 Cicero quoted 1 0; 45> 338) 405 
 
 his definition of law 257 
 
 his views as to forms of government . . . 409 
 
 the fate of his treatise De Republica 409 
 
 portions of his treatise lately discovered .... 410 
 
 Civil jurisprudence, variable 10 11 
 
 Citizens, ranks of ... KO , , ,, 
 
 • • • • O- J , o«.o 
 
 Civil or Roman law, conformed to on the Continent . . .541 
 
 Classification, its utilities ,- 
 
 of all entities . . . . . , 17 18 
 
 — of all forms of government 473 
 
 Climate, its effect on laws &c. .... 369
 
 INDEX. 615 
 
 Corals, their animality o\ 
 
 ColJins, his views of free-agency . . 47 
 
 Cousent the only legitimate source of government . . . 181 
 
 ancient, not a source of political rule . . . .199 
 
 Constitution denned 355 
 
 how different from form of government . . 365. 3 
 
 Codification j64 
 
 Code, a proposed outline of one 292 
 
 Codes of the French Empire 469 
 
 Confucius, his life and maxims 459 
 
 Coinage of money 521 
 
 Cortes of Spain 544 
 
 Conflict of laws, remarks on 5J9 
 
 Commendation 497 
 
 Commons, English, their rise 584 
 
 Courts of justice, profits from, a source of revenue . . . 576 
 
 Corodies, formerly a source of revenue 514 
 
 Corruption of blood . 554 
 
 Copyholds, their origin 568 
 
 Cudworth, his doctrine of immutable and eternal morality . . 309 
 
 Customs of nations explained 332 
 
 Customs, a source of revenue 556,568,570,519 
 
 Cyning, a Saxon title for king -00 
 
 Dagge, remarks on his idea of natural hostility of man . . 89 &c. 
 Descartes considers animals as machines . . . 37 
 
 his opinion of the soul SS 
 
 Deodands, the law of, imputed no guilt to the things forfeited . 304 
 
 Democracy 390, 392,395, 399, 403, 474, 4S1 
 
 De conflictu legum, remarks on 
 Demesne lands, alienation of 
 
 a source of revenue. 
 
 Definitions, remarks on ... 
 
 of law 
 
 , remarks on various . 
 
 Disease cannot be predicated of mind 
 Diversions of Purley .... 
 Divorce under the Mosaic law 
 ■ various kinds of 
 
 . 529 
 564,571 
 
 578 
 
 255 
 257 &c. 
 
 266 
 . 63 
 
 105 
 . 149 
 
 150 
 . 151 
 
 , among the Romans, Athenians &c. 
 
 Divine command, supposed to have originated government . 167, 1S1 
 
 Divine positive law, how different from natural . . . .311 
 
 Disparagement, its various kinds b ~ l 
 
 Diets of Germany 5ii 

 
 61ft 
 
 INDEX. 
 
 Divine service, tenure by ... 
 Dolman, his views as to goverment jure divino 
 Domesday Book ...... 
 
 Droit d' Aubaine explained . 
 
 Dukes, how they made their offices hereditary 
 
 Elder, its meaning 
 
 Emancipation of villains .... 
 
 Estrays 
 
 Escuagre 
 
 . 201 
 
 562 
 
 . 577 
 
 505, 554, -65 
 
 Escheat ■ . . . 510,579 
 
 Establishments of St. Louis 538 
 
 Extraordinary revenues 579 
 
 Extreme necessity, right of, explained 81 
 
 Expediency, doctrine of, explained 202 
 
 a supposed source of political rule .... 203 
 
 . Pale) 's views of 205 
 
 Excambium 504 
 
 Excise 568 575,581 
 
 502, 557, 590, 594 
 
 490, 499 
 
 493 
 
 . 545 
 
 501 
 
 55S, 5SS 
 
 485 &.C. 
 
 545 &c. 
 
 591 
 
 . 462 
 
 75, 76, 77 
 
 . 690 
 
 378 
 
 508, 555 
 
 457 
 
 . 575 
 
 567 
 
 . 54S 
 
 598 
 
 365,380 
 
 . 383,391,433 
 
 . 184 
 
 21 
 
 . 575 
 
 45 
 
 Fealty 
 
 Feuds, proper and improper 
 
 controversy as to their origin 
 
 whether known to the Anglo-Saxons 
 
 . their qualities and incidents 
 
 in England 
 
 Feudal law, history of, on the Continent . . . 
 
 history of, in England 
 
 , its influence on American jurisprudence 
 
 Federalist, its character and authors . 
 
 Ferguson quoted ........ 
 
 Feudal principles remain, though their causes have ceased 
 Filmer, Sir Robert, his views of jure divino government 
 Fine for alienation ... ... 
 
 Frederick II. his life and writings 
 First fruits, a source of revenue 
 Fifteenths, a source of revenue 
 
 Folkland 
 
 Forfeiture of lands for crimes 
 
 Forms of government ..... 
 
 some imaginary 
 
 Fortescue, his views of government jure divino 
 Fortinella Antipyretica, its singular nature . 
 Forests, royal, a source of revenue 
 Free agency 

 
 INDEX. 617 
 
 Frankalmoignc 503,689,590 
 
 Frigidity, effect of on the marriage contract .... 150 
 Fumage • 682 
 
 Gavelkind, custom of 558 
 
 General fund , . 5gg 
 
 Gemara, purified by Maimonides . . . . . .314 
 
 Giants, never existed in modern times :ii6 
 
 Gleaning referred to the right of harmless profit .... 63 
 
 the legal right to, denied in England .... 83 
 
 Government, civil, motives for its establishment . . .165 
 
 theories as to its origin . . . 167,181 
 
 de facto, how different from government de jure 173 
 
 right of, original or subsequent . . 178,190 
 
 dissolution of, does not reduce men to the state 
 
 of nature 823 
 
 Growth, how different from increase 14,15 
 
 Grotius, his idea of perfect rights . . . . • . Ill 
 
 Gravina, his errour as to political and civil states .... 363 
 
 Guardianship in chivalry 512 
 
 — ■ in soccage 516 
 
 Harrington, his life and writings 427 
 
 brief analysis of his works . . •. 429 &c. 
 
 his 'Commonwealth of Oceana' analysed . 133 &c. 
 
 Hamilton, his character 463 
 
 Hackney coaches, tax on 582 
 
 Harmless profit, right of, explained 81,82 
 
 Hesiod quoted 1 1 
 
 Helvetius, his opinion of brute animals 37 
 
 Heber's remarks on infanticide in India 15S 
 
 Herodotus, remarks on 337 
 
 Health, duty to preserve it 339 
 
 Heroic government, Aristotle's views of -100 
 
 Hidage, a source of revenue 566 
 
 Hide of land, its extent ......... 547 
 
 History corrects the speculations of men 1">7 
 
 Hobbes, the character and chief maxims of his philosophy, 87 &c 
 
 318,348,350 
 Hostility of the species supposed to have originated government . I6S 
 
 Hortensius' marriage with Marcia explained 3J3 
 
 Homilies of the church supported the divine right of kings . 378 
 
 Homage 501,502,557 
 
 House-tax 68 ~ 
 
 Husband and wife, the first relation of primary society . 147 
 
 78
 
 61S INDEX. 
 
 Hume, his opinion as to the ascertainment of morals . . sn 
 
 his life and writings . . . . . . 456 
 
 doubts the existence of the intellectual world . . .328 
 
 Hypothetical law of nature 353 355 35 j 
 
 Idiots, custody of 57 o 
 
 llluminati, their mistaken notions 86 
 
 Increase, how different from growth 15 
 
 Instinct belongs not to unorganized matter . 17 
 
 Infanticide 159,338 
 
 Inheritance not a source of political rule 195 
 
 International law 298 
 
 Inspiration, whether natural law is derived from .... 314 
 
 of suggestion explained 315 
 
 of superintendency explained 315 
 
 a supposed source of obligation 286 
 
 Incest, whether malum in se 339 
 
 natural, how different from civil 339 340 
 
 Ingratitude, emancipated slaves reclaimed for ... . 562 
 
 Investiture 503 
 
 Imputability of actions • 61 
 
 Imbecility corporeal, effect of on marriage contract . .150 
 
 Imaginary forms of government 383,391,433 
 
 Improper benefices and feuds 490 
 
 Imperial Chamber 5 43 
 
 Jennings' Jewish Antiquities 83 
 
 Jurisdiction defined • 211 
 
 in locum . 213 
 
 in personam 214 
 
 ■ in rem . 215 
 
 in subjectam materiam . . . . . . 216 
 
 when it ceases in fact ....... 229 
 
 when it ceases of right 230 
 
 high, low and middle .531 
 
 territorial explained 529 
 
 judicial 52s 
 
 Jus gentium explained 83 
 
 primarium 352 
 
 secondarium 350 
 
 Kant, his idea of free-agency 47 
 
 Knights' service 491,505,508,512,521,556 
 
 Knowledge, love of, supposed to have originated government 17T 
 
 > duty to cultivate 357 
 
 how divklcd 35g
 
 INDEX 619 
 
 Laws of Nature. (See Nature, laws of.) 
 
 Laws of Nations ......... 36 33? 
 
 (See Nations, laws of.) 
 
 Land-tax 572, 573 
 
 Language, its nature 40 
 
 peculiar to man 40 
 
 Laws bind morally, as well as civilly 70, 281 
 
 Law, its general nature and properties 253 
 
 in the abstract and concrete 252 
 
 various definitions of 255 
 
 how it differs from statute .... . . .261 
 
 how adapted to the genius of a people 365 
 
 internal properties of 272 
 
 external properties of 290 
 
 sanction essential to 279 
 
 obligation essential to 284 
 
 permission not a 288 
 
 Legislation, exercised by lords within their fiefs .... 527 
 
 principles of 290, 292, 293 
 
 Leibnitz, his. opinion of a speaking dog 40 
 
 his mechanical theories 54 
 
 Lex, how different from jus 254 
 
 fori, loci contractus, loci rei acta?, et rei sitae &c. explained 216 
 
 Levitical degrees 342 
 
 Linnaeus, an aphorism of his explained 14, 15 
 
 Liberty defined • 13° 
 
 it3 various kinds 132,241 
 
 political, whether alienable 120,135 
 
 subject by natural law to three restrictions ... 133 
 
 how far alienable 120,135 
 
 Life, possessed by animals and vegetables 18 
 
 right to, when it commences 125 
 
 the most important of all natural rights . . . . 121 
 
 Literary property 128,135 
 
 Livery of seisin 504 
 
 License on sale of wines i76 
 
 Livermore's Essays on the doctrine de conflictu legum . . 529 
 
 Locomotion said to belong to some plants 23 
 
 Locke, his opinion as to the process of reasoning 
 
 his definition of will 48 > 57 
 
 his views of the state of nature 
 
 his opinion of government jure divino 378 
 
 . his life and writings
 
 620 
 
 INDEX. 
 
 Man, origin, nature kc. of 
 
 , animal and moral nature of, to be studied 
 
 his moral sympathies • 
 
 i improperly classed by Linnaeus .... 
 
 not merely gregarious, but social 
 
 unity of his species . . . 
 
 endued with reason, and progressive in knowledge 
 
 language peculiar to 
 
 a religious animal 
 
 a free agent 
 
 his actions, when imputable .... 
 
 his social nature 
 
 natural equality of, explained .... 
 
 a political animal 
 
 his duty to himself and others 
 
 Matter, how distinguished 
 
 Mammalia 
 
 Malebranche's definition of Will . . . . . 
 Maupertuis, his opinion of the law of continuity 
 Marriage contract, perpetuity of the . 
 
 for what causes annulled .... 
 
 Master and servant, a relation of primary society 
 Magna Charta, a grant of privileges to the Aristocracy 
 
 Machiavel, his life and writings 
 
 controversy as to his 'Prince 1 
 
 his works enumerated .... 
 
 his forms of government 
 
 compared with Montesquieu 
 
 his maxims ...... 
 
 Mai, Sig. his discovery of fragments of Cicero de Republiea 
 Madison, his character and writings .... 
 
 Maritagium a feudal incident 
 
 Malt-tax 
 
 Minerals, growth of, remarks on . 
 
 Mind how distinguished .... 
 
 M. de Mirbal, his criterion of animalitv 
 
 Mind incapable of disease 
 
 Mishna, purified by Maiinonides 
 
 Milton, his views of government jure divino 
 
 his life and writings 
 
 Missi Regii ...... 
 
 Mixed government explained 
 
 Motion, voluntary, belongs to animals alone 
 
 10 
 
 13 
 
 13 
 
 29 
 
 . 30 
 
 32 
 
 37 
 
 40 
 
 44 
 
 45 
 
 61 
 
 65 
 
 66 
 
 177 
 
 . 355 
 
 . 17, 19 
 
 29 
 
 57 
 
 57 
 
 14S 
 
 . 149 
 
 159 
 
 372, 585 
 
 413 
 
 . 413 
 
 423 
 
 . 424 
 
 447 
 
 . 424 
 
 410 
 
 . 463 
 
 579, 556 
 
 579, 580 
 
 14 
 
 17, 19 
 
 24 
 
 63 
 
 314 
 
 . 184 
 
 451 
 
 . 528 
 
 473 
 
 27
 
 indt:x. 
 
 621 
 
 Monboddo, Lord, quoted 29, "6 
 
 Monads of Leibnitz 55 
 
 Moral obligation ''O? 284 
 
 Montesquieu quoted "^ 
 
 his doctrine of possible relations . . . • 79 
 
 his life and writings 44S 
 
 his forms of government 4o ' 
 
 his definition of law 2o8 
 
 how compared with Machiavel .... 447 
 
 Dr Priestley's remarks on 448 
 
 his errour as to the civil and political states . . 363 
 
 his theory as to the effect of climate Sfc. 369 
 
 Morality, its immutable nature a06 
 
 knowledge of, how ascertained 313 
 
 Motive, how different from sanction 284 
 
 definition of 
 
 Muscularity an infallible mark of animality 
 Munera 
 
 Nations, laws of . °" t 
 
 whence derived 332 > & c - 
 
 whether from consent 323 
 
 . whether universal 324 
 
 Natural jurisprudence, immutable 10, 343 
 
 should be a preliminary study . . .12 
 
 , its universality 30, S22 
 
 "97 
 Nature, laws of 
 
 definitions of 2 " 
 
 whether common to man and brute .... 303 
 
 how far common to God and man .... 306 
 
 how it differs from divine positive law . • .311 
 
 various theories as to its ascertainment . 313 &c. 319 
 
 ■ primary and secondary 
 
 26 
 489 
 
 352 
 102 
 211 
 
 Natural rights enumerated and explained . • • • 61 < 1C 
 
 how affected by society and government . 
 
 Nature, state of. (Vide State of nature.) 
 
 Napoleon, the Emperor, a lawgiver . . • • 
 
 Non-Entry, right of 
 
 Norman conquest, changes effected by the . 
 
 Nervous temperament 
 
 Obligation, perfect and imperfect 
 
 . — its nature and kinds 
 
 theories as to the source of ... - 
 
 . proposed definitions of 
 
 469 
 
 555 
 
 551 
 
 64 
 
 114 
 294 
 
 287 
 2SS
 
 622 INDEX 
 
 Oceana, Harrington's, analyzed , 435 
 
 Ochlocracy 403 
 
 Oath of fealty 503 
 
 Offices, tax on 583 
 
 Oligarchy 390, 392, 394 
 
 O'Kelly, his celebrated parrot 41 
 
 Original right of civil government 179 
 
 Ordinary revenues 581 
 
 Oxford decree 378 
 
 Parkinson considers corals and sponges as animals . . . 21 
 
 Passage, right of, whether it be perfect or imperfect . . .112 
 
 Paley's views as to alienable rights 120 
 
 Patrimony, whether it be a natural right 139 
 
 Parent and child, the second relation of primary society . . 155 
 
 Partus sequitur ventrem, remarks on 157 
 
 Passion, sexual, how supposed to originate civil government . 171 
 
 Patriarchal government, its nature and origin . . . .172 
 
 Parliament of England 534, 544, 586 
 
 Parliament of Paris 536,539,541 
 
 Pares curias 558 ) 587 
 
 Perception a fallible mark of animality 22 
 
 Perpetual revenues of the crown 580 
 
 Pensions, tax on 583 
 
 Permissions, whether to be considered laws 288 
 
 Polypus, its remarkable nature 22 
 
 Political society, how different from primary society . . . 143 
 
 Polygamy, whether it be ever lawful 152 
 
 Possession, not a valid source of political rule . . . . 19* 
 Political law, how distinguished from civil law .... 363 
 
 state, how distinguished from civil state . . 363 
 
 Polybius, his views of government 402 
 
 Postage, a duty on letters 581 
 
 Poundage-duty 580 
 
 Phlegmatic temperament 44 
 
 Plowden, his remarks on the state of nature .... 80, 84 
 
 Pleasures, innocent, duty to cultivate them 360 
 
 Plato, his views of government 334 
 
 analysis of some of his political works .... 384 
 
 enumeration of alJ of his works 386 
 
 remarks on his character and writings .... 336 
 
 Plutocracy • , 399 
 
 Pre-established harmony • . 54, 68 
 
 Principle, of the sufficient reason 54 

 
 INDEX. 623 
 
 Property, the second great natural right 125 
 
 literary, its foundation 128,135 
 
 its definition ... 296 
 
 Primary society 1 13 
 
 Prescription, its nature 196 
 
 not a valid source of political rule .... 197 
 
 Praecepta Noachidarum explained 313 
 
 Primary law of nature / 352 
 
 Principles of legislation 238 
 
 of government 416 
 
 Proper benefices and feuds ^_ 490 
 
 Privileges exercised by lords within their fiefs . . . .521 
 
 Private war 526 
 
 Prisage 580 
 
 Quia emptores terrarum, statute of 509, 550 
 
 Quasi mixed governments 473 
 
 Queen Anne's bounty 515 
 
 Rash, its import among the Hebrews 201 
 
 Raymond, his views as to the natural hostility of man . . 168 
 
 Ranks of citizens 521,560 
 
 Reix, its import among the Scythians 201 
 
 Revolutions, political, their legitimate effects 22S 
 
 Reason, whether a means of ascertaining natural law 315, S3 1, 345, 350 
 
 Regal government 401 
 
 Republic, how different from democracy .... 479 
 
 Reliefs 506,555 
 
 Reveland ^ 
 
 Revenues of the Norman king 571 
 
 modern of England 574 
 
 Reid, his opinion of the systems of necessity 53 
 
 Revenues, royal, history of the 564 
 
 Reputation an important natural right 129, 139 
 
 Richerand, his criterion of animality 24 
 
 Rights of nature ,03 
 
 of what they consist 1 - 1 
 
 division of .103 
 
 perfect and imperfect, objections to US 
 
 alienable and unalienable 119,125 
 
 Right government, Aristotle's views of 396 
 
 Roman Nights of Count Verri 392 
 
 Royal fish, a source of revenue ° 76 
 
 _ , . . • • 571 
 
 Royal mines 
 
 Rutherforth, remarks on his division of rights .
 
 624 
 
 iiXDEX. 
 
 Rutherforth, his views of perfect and imperfect obligation 
 
 Sanction, its nature and various kinds 
 
 Sanguineous temperament 
 
 Sabeans, a law of the, explained .... 
 
 Saxons, their character 
 
 Salt, duty on 
 
 Sensation belongs to all animals .... 
 
 Self-government 
 
 Servant, how he differs from a slave .... 
 
 Sense of impotency, how it originated government 
 
 Senator, its meaning 
 
 Selden, the variety and learning of his works 
 
 Sentiment, whether a means of ascertaining the natural 
 
 Sextus Empyricus, remarks on .... 
 
 Secondary law of nature 
 
 Sidney, his opinion as to government jure divino 
 
 his life and writings ..... 
 
 Servants, male, tax on 
 
 Soul, its triple nature 
 
 Society, primary or political 
 
 Social nature of man 
 
 Social principle, how it originated government 
 
 Solon, a law of his explained ..... 
 
 Sovereignty, where it resides 
 
 Socrates, his views of government .... 
 
 Soccage tenure ... ... 
 
 South-sea fund ........ 
 
 Surnames, adoption of 
 
 Subinfeudation, how different from alienation 
 
 Subsidy, a source of revenue 
 
 Suicide, remarks on 
 
 Suarez, Francisco, his idea of the jn? secondariuin 
 Subsequent right of civil government .... 
 Sybaris, some account of ..... 
 
 Schekinah, explanation of 
 
 Scutage a source of revenue .... 
 
 when certain, makes soccage tenure 
 
 when undefined, makes knight's service 
 
 supposed to be a mere incident of tenure 
 
 Sheikh, its meaning among the Arabians 
 
 Slavery, origin of 
 
 Slaves, reclaimed by the Roman law, for ingratitude 
 Smellic, his opinion thai reason results from instinct 
 
 567, 
 
 114 
 
 219 
 54 
 338 
 545 
 581 
 18, 25 
 68 
 159 
 167 
 201 
 305 
 316 
 346 
 352 
 185 
 440 
 582 
 14 
 144, 
 15 
 16 
 339 
 377 
 39S 
 560 
 583 
 . 622 
 509, 555 
 573, 580 
 359,360 
 . 354 
 190 
 
 406» ... 
 
 311 
 
 . 564 
 
 565 
 
 . 565 
 
 665 
 
 . 201 
 
 160 
 
 . 56J 
 
 37
 
 INDEX. 625 
 
 Smith, Sir Edward, his opinion as to animality . . . 24 
 
 Spartan government 401 
 
 Spartans, a law of theirs explained ■ 338 
 
 Stamp-duties 581 
 
 State of nature, why treated '- 
 
 its various meanings "3 
 
 merely theoretical . 78 
 
 its only useful meaning 78 
 
 whether it be a state of war 36 
 
 its inconveniences 100 
 
 does not result from a dissolution of government . 223 
 
 States General, brief history of the 531 
 
 Stomach no criterion of animality 22 
 
 Stewart, his opinion of liberty and will 50 
 
 Steuarts, misfortunes of England under the . . 367, 573, 584, 587 
 
 Tabula in naufragio, doctrine of the 124 
 
 Talmudists, their opinion of the origin of natural law . . 313 
 
 Tartars, their shocking practices remarked on .... 343 
 
 Tamarix, botanically and emblematically explained ... 343 
 
 Tax, its origin and history 570, 579 
 
 Taxation exercised by lords within their fiefs .... 527 
 
 Talliage a source of revenue 567 
 
 Temperaments, doctrine of, explained 64,65 
 
 Tenures, their rise and history 493 
 
 modern English 588 
 
 Tenure, its technical signification 551 
 
 Territorial jurisdiction 529 
 
 gradual abolishment of .... 538 
 
 Tenths, a source of revenue ....... 567 
 
 Temporalities, custody of 574 
 
 Timarchy 395 
 
 Thaneland 54S 
 
 Thasii, a remarkable law of the, explained .... 304 
 
 Tongue not essential to speech 41 
 
 Tonnage 580 
 
 Treasure-trove 577 
 
 Tithes, extra-parochial, a source of revenue .... 574 
 
 Tyranny 390,392,396,400,403 
 
 Vattel, his opinion as to the right of passage . . . "- 
 
 Vegetables grow and live, remarks on the doctrine that . . .14 
 
 Venice, its forms of government 37 J 
 
 Villenage 661 
 
 Villains regardant and in gross 561 
 
 79
 
 626 INDEX. 
 
 Virtues confer no right to political authority 200 
 
 Vis actuosa 15 
 
 Vis vitalis 16 
 
 Wants, urgency of, supposed to have originated government . 170 
 
 Ward, remarks on his theory of the origin of the laws of nations 319 
 
 Wardship in chivalry 512, 556 
 
 War, private 526 
 
 Wards and liveries, court of, abolished ...... 572 
 
 Will, its nature 47 
 
 Will, the right of making one, whether natural . . .141 
 
 Window-tax 5S2 
 
 Wittenagemote ... 570, 585 
 
 Woodward, considers sponges and corals to be minerals . 21 
 
 Wrecks a source of revenue 676 
 
 ■ — history of 576 
 
 Year and a day 554,577 
 
 Zoroaster, a law of his explained 338 
 
 Zalcucus, his laws and institution' 406, 40S 
 
 I ill I ND 


 
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