conclude that the one is any ways repugnant to the other In like manner if in Moral Divinity some things are delivered as from Divine Revelation which by our Reason we are not able to comprehend and which upon that score are above the reach of the Law of Nature it would be very absurd from hence to set the one against the other or to imagine that there is any real Inconsistency between these Sciences On the other hand in the Doctrin of the Law of Nature if any things are to be presupposed because so much may be inferr'd from Reason they are not to be put in Opposition to those things which the holy Scripture on that Subject delivers with greater Clearness but they are only to be taken in an abstracted Sense Thus for Example from the Law of Nature abstracted from the Account we receive thereof in holy Writ there may be formed an Idea of the Condition and State of the first Man as he came into the World only so far as is within the Comprehension of Humane Reason Now to set those things in opposition to what is deliver'd in Sacred Writ concerning the same State would be the greatest Folly and Madness in the World But as it is an easie matter to reconcile the Civil Law with the Law of Nature so it seems a little more difficult to set certain Bounds between the same Law of Nature and Moral Divinity and to define in what Particulars chiefly they differ one from the other And upon this Subject I shall deliver my Opinion briefly not with any Papal Authority as if I was exempted from all Error by any Peculiar Right or Priviledge neither as one who pretends to any Enthusiastick Revelation but only as being desirous to discharge that Province which I have undertaken according to the best of my Ability And as I am willing to hear all Candid and Ingenuous Persons who can inform me better and am very ready to retract what I have said amiss so I do not value those Pragmatical and Positive Censurers and Busie-bodies who boldly concern themselves with things which no ways belong to them of these Persons we have a very Ingenious Character given by Phaedrus They run about says he as mightily concern'd they are very busie even when they have nothing to do they puff and blow without any occasion they are uneasie to themselves and troublesome to every body else Now the Chief Distinction whereby these Sciences are separated from one another proceeds from the different Source or Spring whence each derives its Principles and of which I have already discours'd From whence it follows if there be some things which we are enjoyn'd in Holy Writ either to do or forbear the Necessity whereof cannot be discover'd by Reason alone they are to be look'd upon as out of the Cognizance of the Law of Nature and properly to appertain to Moral Divinity Moreover in Divinity the Law is consider'd as it has the Divine Promise annex'd to it and with relation to the Covenant between God and Man from which consideration the Law of Nature abstracts because the other derives it self from a particular Revelation of God Almighty and which Reason alone could not have found out Besides too there is this Great Difference in that the main End and Design of the Law of Nature is included within the Compass of this Life only and so thereby a Man is inform'd how he is to live in Society with the rest of Mankind But Moral Divinity instructs a Man how to live as a Christian who is not oblig'd to live honesty and vertuously in this World but is besides in earnest expectation of the Reward of his Piety after this Life and therefore he has his Conversation in Heaven but is here only as a Stranger and a Pilgrim For altho the Mind of Man does with very great ardency pursue after Immortality and is extremely averse to its own Destruction and thence it was that most of the Heathens had a strong perswasion of the separate State of the Soul from the Body and that then Good Men should be rewarded and Evil Men punish'd yet notwithstanding such a strong Assurance of the certainty hereof upon which the Mind of Man can firmly and entirely depend is to be deriv'd only from the Word of God Hence it is that the Dictates of the Law of Nature are adapted only to Humane Judicature which does not extend it self beyond this Life and it would be absurd in many respects to apply them to the Divine Forum which concerns itself only about Theology From whence this also follows that because Humane Judicature regards only the external Actions of Man but can no ways reach the Inward Thoughts of the Mind which do not discover themselves by any outward Sign or Effect therefore the Law of Nature is for the most part exercised in forming the outward Actions of Men. But Moral Divinity does not content itself in regulating only the Exterior Actions but is more peculiarly intent in forming the Mind and its internal Motions agreeable to the good Pleasure of the Divine Being disallowing those very Actions which outwardly look well enough but proceed from an impure and corrupted Mind And this seems to be the Reason why the sacred Scripture doth not so frequently treat of those Actions that are enjoyned under certain Penalties by Humane Laws as it doth of those which as Seneca expresses it are out of the reach of any such Constitutions And this will manifestly appear to those who shall carefully consider the Precepts and Virtues that are therein inculcated although even those Christian Virtues do very much dispose the Minds of Men towards the maintaining of Mutual Society so likewise Moral Divinity does mightily promote the Practice of all the main Duties that are enjoyned us in our Civil Deportment So that if you should observe any one behave himself like a restless and troublesome Member in the Common-wealth you may fairly conclude that the Christian Religion has made but a very slight impression on that Person and that it has taken no Root in his Heart And from these Particulars I suppose may be easily discovered not only the certain Bounds and Limits which distinguish the Law of Nature as we have defin d it from Moral Divinity but it may likewise be concluded that the Law of Nature is no ways repugnant to the Maxims of sound Divinity but is only to be abstracted from some particular Doctrines thereof which cannot be fathom'd by the help of Reason alone From whence also it necessarily follows that in the Science of the Law of Nature a Man should be now considered as being depraved in his very Nature and upon that Account as a Creature subject to many vile Inclinations For although none can be so stupid as not to discover in himself many Evil and Inordinate Affections nevertheless unless we were inform'd so much by Sacred Writ it would not appear that this Rebellion of the Will was
Fathers side or the Mothers are those two deduced from the several families of the Father and the Mother the Relation whereof is distinguish'd in the Civil Law by the names of Cognation and Agnation The First does not exclude the Women but only postpones them to Males in the same Line for it recurrs to them in the case of the others default But by the second both the Women and all their Issue even Males are excluded for ever WHEN in a Patrimonial Kingdom XII Differences about Succession how to be there arises a Dispute concerning the Succession the most adviseable way to determine it is to put it to the Arbitration of some of the Royal Family And where the Succession originally depended upon the Consent of the People there their Declaration upon the matter will take away the doubt CHAP. XI The Duty of Supreme Governours IF we consider what is the End and I. Nature of Communities and what the parts of Government it will be easie from thence to pass a judgment upon the Rules and Precepts wherein consists the Office of a Prince BEFORE all things it is requisite II. Their proper Studies and Conversation that he apply himself with the utmost Diligence to the study of whatever may conduce to give him a perfect comprehension of the Affairs belonging to a person in his Station because no man can manage a place to his Honour which he does not rightly understand He is therefore to be sequestred from those remote and forein Studies which make nothing to this purpose He must abridg himself in the Use of Pleasures and vain Pastimes that would divert his Attention from this Mark and End And for his more familiar Friends instead of Parasites and Triflers or such as are accomplish'd in nothing but Vanities whose Company ought utterly to be rejected Let him make choice of men of Probity and Sense experienced in Business and skilful in the ways of the World being assured that until he throughly understands as well the Condition of his own State as the disposition of the People under him he will never be able to apply the general Maxims of State-Prudence to the Cases that will occur in Government in such a manner as they ought More especially let him study to be excellent in Virtues that are of the greatest use and lustre in the exercise of his vast Charge and so compose the manners of his Life that they may be answerable to the height of his Glory THE most general Rule to be observed III. The Publick Good the Supreme Law by Governours is this The Good of the Publick is the Supreme Law of all Because in conferring the Government upon them what is there else intended but to secure the common End for which Societies were instituted in the beginning From whence they ought to conclude that whatsoever is not expedient for the Publick to be done neither is it expedient for themselves AND it being necessary in order to IV. Laws Discipline and Religion preserve a people at peace with one another that the Wills and Affections of them should be disposed and regulated according as it is most proper for the Publick Good There ought to be some suitable Laws for the purpose prescribed by Princes and also a publick Discipline established with so much strictness that Custom as well as fear of Punishment may be able to confine men to the practice of their their Duty To which end it is convenient to take care that the Christian Religion after the most pure and most uncorrupt way be profess'd by the Subjects of every Realm or Community and that no Tenets be publickly taught in the Schools that are contrariant to the designs of Government IT will conduce to the advancement of V. The Laws plain and few the same end if in the Affairs which are wont to be most frequently negotiated betwixt the Subjects the Laws which are prescribed are clear and plain and no more in Number than will promote the good of the Kingdom and its Members For considering that men use to deliberate upon the things they ought or ought not to do more by the strength of their natural Reason than their understanding in the Laws whenever the Laws do so abound in Number as not easily to be retain'd in Memory and are so particular in their Matter as to prohibit things which are unprohibited by the light of Reason it must certainly come to pass that innocent Persons who have not had the least ill intention to transgress the Laws will be many times unknowingly hamper'd by them as by Snares to their unreasonable prejudice against the very end of Societies and Government YET it is in vain for Princes to make VI. And duly executed Laws and at the same time suffer the violation of them to pass with impunity They must therefore cause them to be put in Execution both for every honest Person to enjoy his Rights without Vexation Evasions or Delays and also for every Malefactor to receive the punishment due to the quality of his Crime according to the intention and malice in the committing it They are not to extend their Pardons to any without sufficient reason For it is an unjust practice which tends greatly to irritate the minds of people against the Government not to use Equality all Circumstances considered towards persons that are Equal in their deservings AND as nothing ought to be Enacted VII Penalties under a Penalty without the consideration of some profit to the Common-wealth So in the fixing of Penalties proportionably to that end it is fitting to observe a Moderation with care that the damage thence arising to the Subject on the one hand exceed not the advantage that redounds to the Common-wealth on the other In sine to render Penalties effectual in obtaining the end intended by them it is clear they should still be magnified to such a degree as by their severity to out-weigh the contrary gain and pleasure that is possible to proceed from choosing the Crime MOREOVER inasmuch as the design VIII Injuries of people in incorporating together in a Common-wealth is their security from harms and Violence it is the Duty of the Supreme Magistrate to prohibit any injury of one Subject to another so much the more severely because by their constant Cohabitation in the same place they have the fairer opportunities to do them or to resent them Remembring that no distinctions of Quality or Honour derive the least pretence to the greater to insult over the less at their pleasure Neither has any Subject whatsoever the liberty to seek his satisfaction for the Injuries he presumes are done him in the way of a private Revenge For the design of Government is destroy'd by such a Proceeding as this AND although there is no one Prince IX Ministers of State and Judges how ingenious soever in Business that is able in his own person to manage all the Affairs of a
over his own Life as that he may put an end to it when he pleases but he ought to tarry till he is call'd off by Him who plac'd him in this Station Indeed since Men both can and ought to be serviceable to one another and since there are some sorts of Labour or an over-straining in any which may so waste the strength of a man that Old Age and Death may come on much sooner than if he had led an easie and painless Life there is no doubt but that a man may without any contravention to this Law choose that way of living which may with some probability make his Life the shorter that so be may become more useful to Mankind And whereas oftentimes the Lives of many will be lost except some number of men expose themselves to a Probability of losing their own on their behalf in this case the lawful Governour has power to lay an Injunction on any private man under the most grievous penalties not to decline by Flight such danger of losing his Life Nay farther he may of his own accord provoke such danger provided there are not Reasons more forcible for the contrary and by thus adventuring he hath hopes to save the Lives of others and those others are such as are worthy so dear a Purchase For it would be silly for any man to engage his Life together with another to no purpose or for a person of Value to die for the preservation of a paltry Rascal But for any other cases there seems nothing to be requir'd by the Law of Nature by which he should be persuaded to prefer another mans Life before his own but that all things rightly compar'd every man is allow'd to be most dear to himself And indeed all those who voluntarily put an end to their own Lives either as tir'd with the many Troubles which usually accompany this Mortal State or from an Abhorrence of Indignities and Evils which yet would not render them scandalous to Humane Society or through Fear of Pains or Torments by enduring which with fortitude they might become useful Examples to others or out of a vain Ostentation of their Fidelity and Bravery all these I say are to be certainly reputed Sinners against the Law of Nature BUT whereas it often happens that V. Self-Defence this Self-Preservation which the tenderest Passion and exactest Reason thus recommends to Mankind does seem to interfere with our Precepts concerning Society then when our own Safety is brought into jeopardy by another so far that either we must perish or submit to some very grievous mischief or else we must repel the Aggressor by force and by doing him harm Therefore we are now to deliver With what Moderation the Defence of our selves is to be temper'd This Defence of our selves then will be such as is either without any harm to him from whom we apprehended the mischief by rendring any Invasion of us formidable to him and full of danger or else by hurting or destroying him Of the former way there can be no doubt but that 't is lawful and altogether blameless BUT the latter may admit of scruple VI. Self Defence by hurting another because Mankind may seem to have an equal Loss if the Aggressor be kill'd or if I lose my Life and because one in the same Station with my self will be destroy'd with whom it was my Duty to have liv'd in Civil Society Beside that a forcible Defence may be the occasion of greater outrages than if I should be take my self to slight or patiently yield my Body to the Invader But all these are by no means of such weight as to render this sort of Defence unlawful For when I am dealing fairly and friendly with another it is requisite that he shew himself ready to do the like or else he is not a fit Subject of such good Offices from me And because the End of the Law of Society is the Good of Mankind therefore the Sense thereof is so to be taken as effectually to preserve the Welfare of every Individual or particular man So thaâ—â—f another man make an atteâ—pt upon my Life there is no Law that commands me to forgo my own Safety that so he may practise his Malice with Impunity And he that in such case is hurt or slain must impute his Mischief to his own Wickedness which set me under a Necessity of doing what I did Indeed otherwise whatsoever Good we enjoy either from the bounty of Nature or the help of our own Industry had been granted to us in vain if we were not at liberty to oppose the Violences of Russians who would wrongfully ravish all from us and honest men would be but a ready Prey for Villains if they were not allow'd to make use of Force in defence of themselves against the others Insults Upon the whole then it would tend to the Destruction of Mankind if Self-Defence even with Force were prohibited to us NOT however that hence it follows VII Extremities last to be used that as soon as any Injury is threatned us we may presently have recourse to Extremities but we must first try the more harmless Remedies for instance we must indeavour to keep out the Invader by cutting off his Access to us to withdraw into strong places and to admonish him to desist from his outragious Fury And it is also the Duty of a prudent man to put up a slight Wrong if it may conveniently be done and to remit somewhat of his Right rather than by an unseasonable opposition of the Violence to expose himself to a greater danger especially if that upon which the Attempt is made be such as may easily be made amends for or repair'd But in cases where by these or the like means I cannot secure my self in order to it I am at liberty to have recourse even to Extremities BUT that we may clearly judg whether VIII Two sorts of persons in this Case The first a man contains himself within the bounds of an unblamable Defence of himself it is first to be examin'd whether the person be one who is in a state of Natural Liberty or subject to no man or one who is obnoxious to some Civil Power In the first Case if another shall offer violence to me and cannot be brought to change his malicious mind and live quietly I may repel him even by killing him And this not only when he shall attempt upon my Life but if he endeavour only to wound or hurt me or but to take away from me what is mine without medling with my Body For I have no assurance but that from these lesser Injuries he may proceed to greater and he that has once profess'd himself my Enemy can no longer pretend any Right in his own defence but that I may resist him after what manner I please And indeed the Sociality necessary to Human Life would become unpracticable if a man may not make use even of Extremities
an Instrument of Human Society Discourse is there is no man can be ignorant since many have made that only an Argument to prove Man to be by Nature design'd for a Social Life Now that a lawful and beneficial use may be made hereof for the good of the same Human Society the Law of Nature has given men this for a Duty That no man deceive another either by Discourse or any other Signs which customarily are accepted to express our inward meaning BUT that the Nature of Discourse may II. Vniform Signification of Words be more throughly understood it must first be known that there is a twofold Obligation respecting Discourse whether express'd with the Voice or written in Characters The first is that those who make use of the same Language are oblig'd to apply such certain Words to such certain Things according as Custom has made them to signifie in each Language For since neither any Words nor any particular strokes form'd into Letters can naturally denote any certain Thing otherwise all Languages and Characters for writing would be the same and hence the use of the Tongue would be to no purpose if every man might call every Thing by what Name he pleased it is absolutely necessary among those who speak the same Language that there be a tacit Agreement between 'em that this certain Thing shall be so or so called and not otherwise So that unless an uniform Application of Words be agreed upon 't will be impossible for one man to gather the Meaning of another from his Talk By virtue then of this tacit Compact every man is bound in his common Discourse to apply his Words to that Sense which agrees with the receiv'd Signification thereof in that Language from whence also it follows that albeit a mans Sentiments may differ from what he expresses in Words yet in the Affairs of Human Life he must be look'd upon as intending what he says though as was said perhaps his inward Meaning be the clean contrary For since we cannot be inform'd of anothers Mind otherwise than by outward Signs all use of Discourse would be to no purpose if by mental Reservation which any man may form as he lists it might be in his power to elude what he had declared by Signs usually accepted to that end THE other Obligation which concerns III. Discourse to be plain Discourse consists in this that every man ought by his Words so to express to another his Meaning that he may be plainly understood Not but that it is in a Mans power to be silent as well as to speak and whereas no man is bound to tell every one what he bears in his mind it is necessary that there be some peculiar Obligation that shall engage him first to speak and then so to speak as that another shall fully understand his Meaning Such Obligation may arise from a particular Compact or some common Precept of the Law Natural or from the Nature of the present Affair in which Speech is made use of For oftentimes a Bargain is made expresly with a man that he shall disclose to me all that he knows in some matter as suppose I desired to be instructed in any Science frequently also I may be commanded by some Precept of the Law of Nature to communicate my Skill to another that by this means I may be helpful to him or that I may save him from Mischief or that I may not give him some cause or occasion of receiving a Harm and lastly the present Case may require me to declare my Opinion in a Matter wherein another is concern'd as it happens often in Contracts of the greatest Importance BUT because it cannot always happen that IV. Silence upon any of these heads I am oblig'd to signifie my thoughts upon any matter it is plain that I am not bound to disclose in Words any more than another has a Right either perfect or imperfect to require So that I may by holding my tongue lawfully conceal what he has no just Claim to the knowledge of or to the discovery whereof I lie under no Obligation however earnestly it be desired NAY Since Speech was not only ordain'd V. Counterfeit Discourse for the use of others but our own benefit also therefore whensoever my private Interest is concern'd and it occasions Damage to no body else I may so order my Words that they may communicate a Sense different from that which I bear in my mind Lastly BECAUSE oftentimes those to VI. Figurative Speech whom we talk upon some matters may be so disposed that from a downright and plain Discourse they would perceive the true State of the Case which ought rather to be concealed because a full knowledge would not procure the good end we drive at but be a detriment to 'em we may in such Cases use a figurative or shadow'd way of Speech which shall not directly represent our Meaning and plain Sense to the Hearers For he who would and ought to benefit another cannot be bound to attempt it after such a manner as shall incapacitate him from obtaining his End FROM what has been said may be gather'd VII Verity wherein that Verity consists for their regard to which good men are so much celebrated to wit that our Words do fitly represent our Meaning to any other person who ought to understand them and which it is our Duty to express plainly to him either by a perfect or imperfect Obligation and this to the end either that he upon knowing our minds may make to himself some Benefit thereby or that he may avoid some undeserv'd Evil which he would incur upon a wrong understanding of the case Hence by the by it is manifest that it is not always to be accounted Lying when even for the nonce a Tale is told concerning any thing in such a manner as does not exactly quadrate with the Thing it self nor with our own Opinion of it and consequently that the Congruity of Words with Things which constitutes the Logical Verity is not in all points the same with Moral Truth ON the contrary that is rightly called a Lye when our Words bear a different VIII A Lye Signification from that which we think in our minds whereas the person to whom we direct our Discourse has a Right to understand the thing as it really is and we are under an Obligation of making our Meaning plain to him FROM what is said it appears that IX Vntruth those are by no means chargeable with Lying who entertain Children or the like with Fables and fictitious Discourses for their better Information they being supposed uncapable of the naked Truth As neither are those who make use of a feign'd Story to some good end which could not be attain'd by speaking the plain Truth suppose to protect an Innocent to appease an angry man to comfort one who is in sorrow to encourage the fearful to persuade a nauseating Patient to take his
the Debt together with the Use for the intermediate Time and provided the Overplus be restored to the Owner But as the Creditor is oblig'd to restore the Pledge upon payment of the Debt so in the mean time he ought to be as careful in the preserving thereof as if it were really his own And when there is no Pactum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and the thing be of that nature as to receive any damage by Use or if it be any ways for the Debtor's Advantage he ought not to make use of it without his Consent Now a Mortgage differs from a Pledge in this that a Pledge consists in the Delivery of the Thing but a Mortgage tho the Thing be not deliver'd holds good by the bare Assignation of a Thing altogether Immoveable from which Payment not being made the Creditor may receive satisfaction for his Debt AND thus what the Duties of Persons XVI contracting are will plainly appear from the End and Nature of these Contracts CHAP. XVI The several Methods by which the Obligations arising from Contracts are dissolv'd AMONG the several ways of discharging I. Fulfilling or Payment Obligations arising from Contracts and by which likewise the Duties and Offices which proceed from thence do utterly expire the chiefest and most Natural of all is the Fulfilling or Payment of what was agreed upon Where altho generally he that is the Debtor is oblig'd to make the Payment yet if it be perform'd by any other in his name who contracted the Obligation the same is dissolv'd since 't is no ways material by what Person the Thing is perform'd Yet with this Proviso that he who pays for another without any Intention of bestowing it upon him he may demand from the same again what he laid out upon his Account Moreover Payment must be made to that Person to whom it is due or else to one whom he has appointed to receive the Debt in his Name And lastly that very Thing must be perform'd or paid which was agreed upon not any Thing else instead thereof intire and not imperfect not only in parcels or by piece-meal and likewise at the Place and Time appointed Altho frequently the Courtesie of the Creditor or the Inability of the Debtor may be the occasion of prolonging the time of Payment or of receiving a Debt by little Sums at once or else of accepting of one Thing for another OBLIGATIONS are likewise taken II. Compensation away by Compensation which is an Adjusting or Ballancing the Credit and the Debt one against the other or when the Debtor is therefore discharg'd because 't is manifest that the Creditor himself stands indebted to him for something that is of the same kind and of the same Value Especially since in those Things call'd res fungibiles that is which admit of being repaid in kind tho not in specie an Equivalent is look'd upon to be the same Thing and where the Debt is Mutual since I must presently return back as much as I have receiv'd for the declining of unnecessary Payments it seems to be the most convenient way so to order the matter that each Party may keep what he has Now it is evident that those Things aforemention'd may very properly be brought to a Balance of which the time for Payment is either present or past But it is not so in other Things or Performances which are of a Different Nature unless they are estimated on both sides and reduc'd to Mony AN Obligation also ceases when the III. Release Thing is released and forgiven by him to whom it was due and whose Interest it was that the Obligation should have been perform'd And this is done either expresly by some Certain Tokens declaring his Consent as by giving a Discharge by giving up or cancelling the Bonds and Writings or else tacitly if he himself hinders or is any ways the Occasion that what is owing to him cannot be paid THOSE Obligations are likewise some IV. Breaking off mutually times dissolv'd which imply some Performance on both sides by a mutual breaking off before any thing on either side be done in the Contract unless this be expresly forbidden by the Laws But if any thing is perform'd by one of the Parties the same must either be by him releas'd to the other or else be made up some other way BESIDES an Obligation is not indeed V. Falseness on one side properly dissolv'd but rather broken off by the Falseness of either Party for wheâ— the one does not perform what was agreed upon neither is the other oblig'd to make good what he undertook in contemplation of the Others performing For as to the main Things which are to be performed in Contracts the Former are alwayâ— included in the Latter by way of Condition as if it should be said I will perform this if you perform that first OBLIGATIONS likewise cease when VI. Case alter'd that State of things upon which they chiefly depended is either alter'd by the Party who was oblig'd to perform somewhat or by him to whom and for whose sake it was to be done SOMETIMES also Time it self puts VII Time an end to some Obligations whose Duration depends upon a certain precise Day unless it be prolong'd by the Express or tacit Consent of each Party Yet there is a Necessity that the Power of exacting the Obligation within the time Limited should stand good Lastly OBLIGATIONS which exist VIII Death only with regard to some particular Person are dissolv'd by Death for when the Subject is taken away the Accidents also must of necessity be extinguish'd Yet oftentimes the Obligations of the Deceased are continued in the Persons surviving And that either because the Survivor out of Duty or for other Reasons takes upon himself to fulfil the Obligations of the Person Deceased or because the Obligation must be satisfied out of the Goods of the Deceased with which the Heir is charg'd when he receives the Possession ANY one may make over by Assignment IX Assignment his Debtor to his Creditor provided he approves him that he instead of the other may discharge the Debt Where indeed there is required the Consent of the Creditor but not of that third Person who is the Debtor whom I may turn over without his knowledg or consent to the other Person that is to accept him For it is no great matter to whom any Person makes payment but from whom the Debt is to be required is very material CHAP. XVII Of Meaning or Interpretation SO indeed it is that neither in those I. Rules for Interpretation necessary Things which are commanded by the Supreme Magistrate no man is accounteâ— to be bound any further than the samâ— Magistrate requires and whosoever of hiâ— own free Will sets himself under any Obligations binds himself but according tâ— his own Intention Yet because one Maâ— cannot make a judgment of another manâ— Intention but by such Signs and Actioâ—
of Death by way of Punishment As likewise the Goods and Chattels of Criminals are subject to the Censure of the Law So that here some General things concerning the nature of Punishments come to be discoursed PUNISHMENT is an Evil that is suffered IV. Of Punishments in Retaliation for another that is done Or a certain grievous pain or pressure imposed upon a person by Authority in the manner of a Force with regard to an Offence that has been committed by him For although the doing of some things may oftentimes be commanded in the place of a Punishment yet it is upon this consideration that the things to be done are troublesome and laborious to the doer who will therefore find his sufferings in the performance of such Action A Punishment also signifies its being inflicted against the wills of people For it would not otherwise obtain its end which is to deter them from Crimes by the sense of its Severity An effect it never will produce if it were only such as an Offender is willing and pleased to undergo As for other Sufferings which happen to be undergone in Wars and Engagements or which one bears innocently through the means of an Injury done him the former not being inflicted by Authority and the other not referring to an antecedent Crime they do neither of them import the proper sense and meaning of a Punishment BY our Natural Liberty we enjoy the V. Inflicted by the Government Priviledge to have no other Superiour but God over us and only to be obnoxious to punishments Divine But since the introduction of Government it is allowed to be a branch of the Office of those in whose hands the Government is intrusted for the good of all Communities that upon the representation of the unlawful practices of Subjects before them they shall have power effectually to coerce the same that people may live together in Safety NEITHER does there seem to be any VI. The Benefit of them thing of Inequality in this that he who Evil does should Evil suffer Yet in the course of Humane Punishments we are not solely to regard the quality of the Crime but likewise to have an Eye upon the benefit of the Punishment By no means executing it on purpose to feed the fancy of the party injured or to give him pleasure in the pains and sufferings of his Adversary Because such kind of Pleasure is absolutely inhumane as well as contrary to the disposition of a good fellow-Subject THE Genuine end of Punishments in a VII The End of them State is the Prevention of wrongs and injuries which then has its effect when he who does the Injury is amended or for the future incapacitated to do more or others taking Example from his Sufferings are deter'd from like Practices Or to express it an other way That which is to be considered in the business of Punishments is the Good either of the Offender or the Party offended or generally of All. First WE consider the Good of the Offender VIII Vpon the Offender in whose mind the smart of the Punishment serves to work an alteration towards Amendment and extinguishes the lust of doing the same again Divers Communities leave such kind of Punishments as are qualified with this End to be exercised by Masters over the members of their own Families But it never was thought good they should proceed so far as to Death because he that is dead is past Amendment IN the next Place a Punishment intends IX Vpon the Party offended the good of the party Offended securing him that he suffer not the like mischief for the future either from the same or other persons It secures him from the same if the mans Life or pardoning that his Power to do hurt be taken from him or perhaps sad Experience unteaches him the Art he has learnt to Offend It secures him from others by being perform'd in the most open and publick manner accompanied with the circumstances of form and pomp that are apt to strike a dread into as many as behold it IN a word the good of all people is X. Vpon All. intended by the Execution of Punishments For by this means care is taken that he who has done a mischief to one shall do no such mischief again to another the terror of whose Example may also be an Antidote for the rest against the temptations to his Crime And this Good accrews after the same manner as the former BUT if together with the End of Punishments XI Internal Acts of the mind not subject to them we consider the condition of Humane Nature we shall see that all sins are not of that quality that they must necessarily fall under the Sentence of a Court of Justice The Acts of the mind within it self which are merely internal as thinking upon a Sin with delight coveting desiring resolving to do an ill thing but without effect though they should be afterwards made known by mans own Confession yet are all exempted from the stroke of humane Punishments For so long as those internal Motions have not occasion'd the prejudice of any whom does it concern or profit to cause the Author to suffer for the same IT would also be over-severe in Laws to XII Nor minute Lapses punish the most minute Lapses in the actions of men when in the condition of our Natures the greatest attention cannot prevent them THERE are many instances of Actions XIII And other Actions more of which the publick Laws dissemble the taking of any Notice for the peace of the Nation As sometimes because a good Act shines with greater glory by being wrought without sight of a Constraint or perhaps it is not altogether worth the troubling of Judges and Courts about it Or it is a matter extraordinarily difficult to be decided or some old inveterate Evil which cannot be removed without causing a Convulsion in the State ADD hereunto the Vices of the mind XIV Nor the Vices of the Mind flowing from the common corruption that reigns in the World as Ambition Avarice Rudeness Ingratitude Hypocrisie Envy Pride Anger private Grudges and the like All these of necessity must be exempted from the cognisance of humane Judicatures so long as they break not out into publick Enormities seeing they abound to that degree that if you should severely pursue them with Punishments there would be no people left to be commanded FURTHER When there have been XV. Of Pardons Crimes committed which are punishable by the Civil Judicature it is not always necessary to exert the execution of Justice upon them For in some cases a Pardon may possibly be extended to Criminals with a great deal of reason as it never ought to be granted without it and amongst other Reasons these especially may be some That the Ends which are intended by Punishments seem not so necessary to be attended in the case in question where a Pardon may produce more good than
Vnequal Conditions are agreed upon that are unequal and render one side worse than the other This Inequality may be either on the part of the Superior or else of the Inferior Confederate For if the Superior Confederate engages to send the other Succours unconditionally not accepting of any terms from him or engages to send a greater proportion of them than He the Inequality lies upon the Supeor But if the League requires of the inferior Confederate the performance of more things towards the Superior than the Superior performs towards him the inequality there no less evidently lies on the side of the Inferior AMONGST the Conditions required V. Conditions put upon Inferiors of an Inferior Ally some contain a diminution of his Sovereign Power restraining him from the Exercise thereof in certain Cases without the Superior's consent Others impose no such prejudice upon his Sovereignty but oblige him to the performance of those we call transitory Duties which once done are ended altogether As to discharge the pay of the others Army to restore the expences of the War to give a certain sum of Mony to demolish his Fortifications deliver Hostages surrender his Ships Arms c. And yet neither do some perpetual Duties diminish the Sovereignty of a Prince As to have the same Friends and Enemies with another though the other be not reciprocally engag'd to have the same with him To be obliged to erect no Fortifications here nor to sail there c. To be obliged to pay a certain friendly reverence to the other's Majesty and to conform with Modesty to his pleasure BOTH these sorts of Leagues as well VI. The Subject of Leagues Equal as the Vnequal are wont to be contracted upon various Reasons whereof such especially produce effects of the strongest and most binding Complexion as tend to the conjunction of many Nations in a League that is to last for ever But the Common Subject of the Leagues most in use is either the preservation of Commerce or the furnishing of Succours in a War Offensive or Defensive THERE is another famous Division of VII Real and personal Leagues Leagues into Real and Personal The Latter express such a near regard to the Person of the Prince they are contracted with that whenever he dies they expire also Real Leagues are those which not being entred into in consideration so much of any particular Prince or Governour as of the Kingdom or Common-wealth continue in full force even after the death of the first Contracters of them THE next in Nature to Leagues are VIII Sponsions the Agreements of a Publick Minister made upon the Subject of the Affairs of the Prince his Master without Orders for the same which are usually call'd Overtures The Conditions whereof impose no Obligation upon the Prince until he pleases afterwards to ratifie them by his own Authority And therefore if after the Minister has agreed upon the Compact absolutely he cannot obtain his Prince's confirmation of it it lies upon himself to consider what satisfaction he ought to render unto those who depending upon his Credit have been deceiv'd by him with insignificant Engagements CHAP. XVIII The Duty of Subjects THE Duty of Subjects is either General I. Twofold arising from the Common Obligation which they owe to the Government as Subjects or Special upon the account of some particular Office and Employment that the Government imposes upon them THEIR General Duty respects the demeaning II. General of themselves severally towards their Governors the Common-wealth and one another in particular To their Governors they owe Honor III. Towards their Governours Fidelity and Obedience Beside that they ought to entertain good and honourable thoughts of them and their Actions and speak accordingly to acquiesce with Patience and Content under the present State of things not suffering their desires to wander after Innovations nor adhering to any Persons or admiring and honouring them more than they do the Magistrates that are set over them IN reference to the Common-Wealth IV. The Commonwealth their Duty is to prefer the Happiness and Safety of it to the dearest things they have in the World to offer their Lives Estates and Fortunes with chearfulness towards its preservation and study to promote its Glory and Welfare by all the powers of their Industry and Wit TOWARDS one another their behaviour V. One another ought to be friendly and peaceable as serviceable and as affable as they can make it not to give occasion of trouble by Moroseness and Obstinacy nor envying the happiness of any or interrupting their Enjoyments AND as for their particular Duties VI. Their special Duties as Officers whether they influence the whole body of the Nation or are employed only about a certain part of it there is this one general Precept to be observ'd for all That no person affect or take upon him any Employment of which he knows himself by the sense of his disabilities to be unworthy and uncapable PARTICULARLY let those who assist VII The Duty of Privy Counsellours at the Publick Counsels turn their Eyes round into all parts of the Common-wealth and whatever things they discover to be of use thereupon ingenuously and faithfully without partiality or corrupt intentions lay open their observations Let them not take their own Wealth and Grandeur but always the Publick good for the end of their Counsels nor flatter their Princes in their Humours to please them only Let them abstain from Factions and unlawful Meetings or Associations Dissemble nothing that they ought to speak nor betray what they ought to conceal Let them approve themselves impenetrable to the corruptions of Foreigners and not postpone the Publick Business to their private Concerns and Pleasures LET the Clergy who are appointed VIII The Clergy publickly to administer in the sacred Offices of Religion perform their work with gravity and attention teaching the Worship of God in Doctrines that are most true and making themselves an eminent Example of what they preach to others that the dignity of their Function and the weight of their Doctrine may suffer no diminution by the Scandal of an ill led Life LET such who are publickly employ'd IX Publick Readers to instruct the minds of People in the knowledge of Arts and Sciences teach nothing that is false and pernicious delivering their Truths so that the Auditors may assent to them not out of a Custom of hearing but for the solid Reasons that attend them and avoiding all Questions which encline to embroil Civil Society let them assure themselves that whatever humane Science or Knowledge returns no good to us either as men or Subjects the same deserves their Censure as impertinent Vanity LET those Magistrates whose Office X. Lawyers it is to distribute Justice be easie of Access to all and ready to protect the Common people against the oppressions of the more mighty administring Justice both to Rich and Poor Inferior
the Punishment and the said Ends be more conveniently obtain'd another way That the Prisoner can alledg those excellent Merits of his own or of his Family towards the Common-wealth which deserve a singular Reward That he is famous for some remarkable rare Art or other or it is hoped will wash away the stain of his Crime by performing of some Noble Exploit That Ignorance did intervene in the Case though not altogether such as render him blameless or that a particular reason of the Law ceases in a fact like his For these reasons and oftentimes for the number of the Offenders being very great Pardons must be granted rather than the Community shall be exhausted by Punishments To take an Estimate of the greatness XVI The greatness of a Crime of any Crime there is to be considered first the Object against which it is committed How Noble and Precious that is Then the Effects what Damage more or less it has done to the Common-wealth and next the pravity of the Author's Intention which is to be collected by several signs and circumstances As whether he might not easily have resisted the Occasions that did tempt him to it and besides the common reason whether there was not a peculiar one for his forbearance What circumstances aggravate the Fact or is he not of a Soul disposed to resist the allurements of a Temptation Enquiring yet further whether he was not the Principal in the Commission or was he seduced by the Example of others and once or oftner or after admonitions spent in vain upon him BUT for the precise Kind and Measure XVII Measure and kind of punishment of Punishment that is fit to be pronounc'd upon each Crime it belongs to the Authority of the Government to determine it with an intire regard to the profit of the Common-wealth Whence the same Punishment may and oftentimes is imposed upon two Vnequal Crimes understanding the Equality that is commanded to be regarded by Judges to mean the particular case of those Criminals who being guilty of the same kind of Fact the one shall not be acquitted and the other condemned without very sufficient reason And although men ought to shew to one another all the Mercy and Tenderness that may be yet the good of the Nation and the security of its Subjects require upon occasion when either a Fact appears most pernicious to the Publick or there is need of a sharp Medicine to obviate the growing Vices of the Age that the Government should aggravate its Punishments which deserve at all times to be carried high enough to be sufficient to controll the Propensity of men towards the Sins those Punishments are levell'd against And let the Government observe that no greater punishments be inflicted than the Law assigns unless the Fact be aggravated by very heinous Circumstances MOREOVER since the same Punishment XVIII The person of the Offender not affecting all persons alike meets with various returns to its endeavours to restrain in them the itch of evil-doing according to the disposition of every one that encounters it Therefore both in the Designation of Punishments in general and in the Application of them to particulars it is proper to consider the person of the Offender in conjunction with as many qualities as concur to augment or diminish the sense of Punishment as Age Sex Condition Riches Strength and the like AND as no man in a Court of Civil XIX Crimes done by Communities Judicature can properly be punish'd for another's Crime so in the Commission of a Crime by a Community whoever does not consent to it shall not be condemn'd for it nor suffer the loss of any thing he does not hold in the name and service of the Community further then it is usual on these occasions for the Innocent to feel the smart of the Common Misfortune When all those are dead who did consent or assist towards the said Crimes then the guilt thereof expires and the Community returns to its pristine Innocency YET it frequently happens that the XX Effect of one man Crime upon an ther. Crime of one shall occasion the inconvenience of many others even to the intercepting of a future blessing from them that they justly expected to receive So when an Estate is confiscated for a Crime done by the Parents the innocent Children fall into beggery And when a Prisoner upon Bail makes his escape the Bail is forced to answer the Condition of the Bond not as a Delinquent but because it was his voluntary act to oblige himself to stand to such an Event CHAP. XIV Of Reputation REPUTATION in General is that I. Defin'd Value set upon Persons in the World by which they are Compared and Equalized preferr'd or postponed to others IT is divided into Simple and Accumulative II. Divided And may be considered as to both either in a People living at their natural liberty or United together under a Government SIMPLE Reputation amongst a People III. Simple reputation in a State of Nature in their Natural Liberty consists chiefly in this that by their Behaviour they have the Honour to be esteemed and treated with as Good men ready to comport themselves in Society with others according to the prescription of the Law of Nature THE Praise whereof remains Entire IV. How preserved so long as no Evil and Enormous fact is knowingly and wilfully done by them with a wicked purpose to Violate the Laws of Nature towards their Neighbour Hence every one naturally is to pass for a Good Man until the contrary is proved upon him THE sam is diminish'd by transgressing V. Diminished and repair'd against the Law of Nature malitiously in any heinous matter which serves also as a Caution for the future to treat with him that does it with greater circumspection though this stain may be wash'd off either by a voluntary Reparation of damages or the testimonies of a serious Repentance BUT by a Course of life directly tending VI. Lost and recovered to do mischief and the seeking of advantages to themselves by open and promiscuous injuries towards others the Reputation described is totally destroy'd And until men of this sort repent they may lawfully be used as Common Enemies by every one that is in any manner liable to come within the reach of their Outrages Yet it is not impossible even for these men to retrieve their Credit if after they have repair'd all damages and obtain'd their Pardons they abjure their vitious to embrace for the time to come an honest course of living SIMPLE Reputation amongst those who VII Vnder Government live together in a Community is that by which a man is understood to be of some Account and has never been declared a vitious member by the Laws and Customs of the Place HERE therefore the same perishes either VIII Lost by an ill condition of life by reason of the course of a man's life or in Consequence of