Part I: Of Justice
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[§ 1. Of Works on Natural Jurisprudence.]
Jurisprudence is that science which inquires into the general principles which ought to be the foundation of the laws of all nations. Grotius seems to have been the first who attempted to give the world anything like a regular system of natural jurisprudence, and his treatise On the Laws of War and Peace, with all its imperfections, is perhaps at this day the most complete work on this subject1. It is a sort of casuistical book for sovereigns and states, determining in what cases war may justly be made and how far it may be carried on. As states have no common sovereign and are with respect to one another in a state of nature, war is their only method of redressing injuries. He determines war to be lawful in every case where the state receives an injury which would be redressed by an equitable civil magistrate2. This naturally led him to inquire into the constitution of states and the principles of civil laws; into the rights of sovereigns and subjects; into the nature of crimes, contracts, property, and whatever else was the object of law, so that the two first books of [2] his treatise, which are upon this subject, are a complete system of jurisprudence.
The next writer of note after Grotius was Mr. Hobbes. He had conceived an utter abhorrence of the ecclesiastics, and the bigotry of his times gave him occasion to think that the subjection of the consciences of men to ecclesiastic authority was the cause of the dissensions and civil wars that happened in England during the times of Charles I and of Cromwell. In opposition to them he endeavoured to establish a system of morals by which the consciences of men might be subjected to the civil power, and which represented the will of the magistrate as the only proper rule of conduct. Before the establishment of civil society, mankind, according to him, were in a state of war; and in order to avoid the ills of a natural state, men entered into contract to obey one common sovereign who should determine all disputes. Obedience to his will, according to him, constituted civil government, without which there could be no virtue, and consequently it too was the foundation and essence of virtue.
The divines thought themselves obliged to oppose this pernicious doctrine concerning virtue, and attacked it by endeavouring to show that a state of nature was not a state of war, but that society might subsist, though not in so harmonious a manner, without civil institutions. They endeavoured to show that man in this state has certain rights belonging to him, such as a right to his body, to the fruits of his labour, and the fulfilling of contracts. With this design Puffendorf wrote his large treatise. The sole intention of the first part of it is to confute Hobbes, though it in reality serves no purpose to treat of the laws which would take place in a state of nature, or by what means succession to property was carried on, as there is no such state existing.
The next who wrote on this subject was the Baron de Cocceii, a Prussian. There are five volumes in folio of his [3] works published, many of which are very ingenious and distinct, especially those which treat of laws. In the last volume he gives an account of some German systems1.
Besides these there are no systems of note upon this subject.
[§ 2. Of the Division of the Subject.]
Jurisprudence is the theory of the general principles of law and government.
The four great objects of law are justice, police, revenue, and arms.
The object of justice is the security from injury, and it is the foundation of civil government.
The objects of police are the cheapness of commodities, public security and cleanliness, if the two last were not too minute for a lecture of this kind. Under this head we will consider the opulence of a state.
It is likewise necessary that the magistrate who bestows his time and labour in the business of the state should be compensated for it. For this purpose, and for defraying the expenses of government, some fund must be raised. Hence the origin of revenue. The subject of consideration under this head will be the proper means of levying revenue, [4] which must come from the people by taxes, duties, &c. In general, whatever revenue can be raised most insensibly from the people ought to be preferred; and in the sequel it is proposed to be shown, how far the laws of Britain and of other European nations are calculated for this purpose.
As the best police cannot give security unless the government can defend themselves from foreign injuries and attacks, the fourth thing appointed by law is for this purpose; and under this head will be shown the different species of arms with their advantages and disadvantages, the constitution of standing armies, militias, &c.
After these will be considered the laws of nations, under which are comprehended the demands which one independent society may have upon another, the privileges of aliens, and proper grounds for making war.
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The end of justice is to secure from injury. A man may be injured in several respects:
First, as a man.
Secondly, as a member of a family.
Thirdly, as a member of a state.
As a man he may be injured in his body, reputation, or estate.
As a member of a family he may be injured as a father, as a son, as a husband or wife, as a master or servant, as a guardian or pupil. For the two last are to be considered in a family relation, till such time as the pupil can take care of himself.
As a member of a state, a magistrate may be injured by disobedience, or a subject by oppression, &c.
A man may be injured:
First, in his body by wounding, maiming, murdering, or by infringing his liberty.
Secondly, in his reputation, either by falsely representing him as a proper object of resentment or punishment, as by calling him a thief or robber, or by depreciating his real worth, and endeavouring to degrade him below the level of his profession. A physician’s character is injured when [6] we endeavour to persuade the world he kills his patients instead of curing them, for by such a report he loses his business. We do not however injure a man when we do not give him all the praise that is due to his merit. We do not injure Sir Isaac Newton or Mr. Pope when we say that Sir Isaac was no better philosopher than Descartes, or that Mr. Pope was no better poet than the ordinary ones of his own time. By these expressions we do not bestow on them all the praise that they deserve, yet we do them no injury, for we do not throw them below the ordinary rank of men in their own professions. These rights which a man has to the preservation of his body and reputation from injury are called natural, or as the civilians express them iura hominum naturalia.
Thirdly, a man may be injured in his estate. His rights to his estate are called acquired or iura adventitia, and are of two kinds, real and personal.
A real right is that whose object is a real thing and which can be claimed a quocumque possessore. Such are all possessions, houses, furniture.
Personal rights are such as can be claimed by a law-suit from a particular person, but not a quocumque possessore. Such are all debts and contracts, the payment or performance of which can be demanded only from one person. If I buy a horse and have him delivered to me, though the former owner sell him to another, I can claim him a quocumque possessore; but if he was not delivered to me I can only pursue the seller.
Real rights are of four kinds, property, servitudes, pledges, and exclusive privileges.
Property is our possessions of every kind, which if any way lost, or taken from us by stealth or violence, may be redemanded a quocumque possessore.
Servitudes are burdens upon the property of another. Thus I may have a liberty of passing through a field belonging to another which lies between me and the highway, [7] or if my neighbour have plenty of water in his fields and I have none in mine for my cattle, I may have a right to drive them to his. Such burdens on the property of another are called servitudes. These rights were originally personal, but the trouble and expense of numerous lawsuits in order to get possession of them, when the adjacent property which was burdened with them passed through a number of hands, induced legislators to make them real and claimable a quocumque possessore. Afterwards the property was transferred with these servitudes upon it.
Pledges, which include all pawns and mortgages, are securities for something else to which we have a right. The laws of most civilized nations have considered them as real rights, and give a liberty to claim them as such.
Exclusive privileges are such as that of a bookseller to vend a book for a certain number of years, and to hinder any other person from doing it during that period. These rights are for the most part creatures of the civil law, though some few of them are natural, as in a state of hunters even before the origin of civil government, if a man has started a hare and pursued her for some time, he has an exclusive privilege to hunt her, by which he can hinder any other to come in upon her with a fresh pack of hounds.
An heir has also an exclusive privilege of hindering any person to take possession of the inheritance left him while he is deliberating whether or not it will be for his interest to take possession of it and pay off the debts with which it is burdened1.
Personal rights are of three kinds, as they arise from contract, quasi contract, or delinquency.
The foundation of contract is the reasonable expectation, which the person who promises raises in the person to whom he binds himself; of which the satisfaction may be extorted by force.
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Quasi contract is the right which one has to a compensation for necessary trouble and expense about another man’s affairs. If a person finds a watch in the highway he has a claim to a reward, and to the defraying of his expenses in finding out the owner. If a man lend1 me a sum of money, he has a right not only to the sum, but to interest also.
Delinquency is founded upon damage done to any person, whether through malice or culpable negligence. A person has a right to claim these only from a certain person.
The objects of these seven rights make up the whole of a man’s estate.
The origin of natural rights is quite evident. That a person has a right to have his body free from injury and his liberty free from infringement unless there be a proper cause, nobody doubts. But acquired rights such as property require more explanation. Property and civil government very much depend on one another. The preservation of property and the inequality of possession first formed it, and the state of property must always vary with the form of government. The civilians begin with considering government and then treat of property and other rights. Others2 who have written on this subject begin with the latter and then consider family and civil government. There are several advantages peculiar to each of these methods, though that of the civil law seems upon the whole preferable.
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[§ 1. Of the Original Principles of Government.]
There are two principles which induce men to enter into a civil society, which we shall call the principles of authority and utility. At the head of every small society or association of men, we find a person of superior abilities. In a warlike society he is a man of superior strength, and in a polished one of superior mental capacity. Age and a long possession of power have also a tendency to strengthen authority. Age is naturally in our imagination connected with wisdom and experience, and a continuance in power bestows a kind of right to the exercise of it. But superior wealth still more than any of these qualities contributes to confer authority. This proceeds not from any dependence that the poor have upon the rich, for in general the poor are independent, and support themselves by their labour, yet, though they expect no benefit from them, they have a strong propensity to pay them respect. This principle is fully explained in the Theory of Moral Sentiments1, where it is shown that it arises from our sympathy with our superiors being greater than that with our equals or inferiors: we admire their [10] happy situation, enter into it with pleasure, and endeavour to promote it1.
Among the great, as superior abilities of body and mind are not so easily judged of by others, it is more convenient, as it is more common, to give the preference to riches. It is evident that an old family, that is, one which has been long distinguished by its wealth, has more authority than any other. An upstart is always disagreeable, we envy his superiority over us and think ourselves [as] well entitled to wealth as he2. If I am told that a man’s grandfather was very poor and dependent on my family, I will grudge very much to see his grandson in a station above me, and will not be much disposed to submit to his authority. Superior age, superior abilities of body and of mind, ancient family and superior wealth seem to be the four things that give one man authority over another3.
The second principle which induces men to obey the civil magistrate is utility. Every one is sensible of the necessity of this principle to preserve justice and peace in the society. By civil institutions the poorest may get redress of injuries from the wealthiest and most powerful; and though there may be some irregularities in particular cases, as undoubtedly there are, yet we submit to them to avoid greater evils. It is the sense of public utility, more than of private, which influences men to obedience. It may sometimes be for my interest to disobey, and to wish government overturned, but I am sensible that other men are of a different opinion from me, and would not assist me [11] in the enterprise. I therefore submit to its decision for the good of the whole.
If government has been of a long standing in a country, and if it be supported by proper revenues, and be at the same time in the hands of a man of great abilities, authority is then in perfection.
In all governments both these principles take place in some degree, but in a monarchy the principle of authority prevails, and in a democracy that of utility. In Britain, which is a mixed government, the factions formed some time ago, under the names of Whig and Tory, were influenced by these principles, the former submitted to government on account of its utility and the advantages which they derived from it, while the latter pretended that it was of divine institution, and to offend against it was equally criminal as for a child to rebel against its parent. Men in general follow these principles according to their natural dispositions. In a man of a bold, daring and bustling turn the principle of utility is predominant, and a peaceable easy turn of mind usually is pleased with a tame submission to superiority1.
It has been a common doctrine in this country that contract is the foundation of allegiance to the civil magistrate2. But that this is not the case will appear from the following reasons.
In the first place the doctrine of an original contract is peculiar to Great Britain, yet government takes place where it was never thought of, which is even the case with the greater part of people in this country3. Ask a common [12] porter or day-labourer why he obeys the civil magistrate, he will tell you that it is right to do so, that he sees others do it, that he would be punished if he refused to do it, or perhaps that it is a sin against God not to do it. But you will never hear him mention a contract as the foundation of his obedience.
Secondly, when certain powers of government were at first entrusted to certain persons upon certain conditions, it is true that the obedience of those who entrusted it might be founded on a contract, but their posterity have nothing to do with it, they are not conscious of it, and therefore cannot be bound by it. It may indeed be said that by remaining in the country you tacitly consent to the contract and are bound by it. But how can you avoid staying in it? You were not consulted whether you should be born in it or not. And how can you get out of it? Most people know no other language nor country, are poor, and obliged to stay not far from the place where they were born, to labour for a subsistence. They cannot, therefore, be said to give any consent to a contract, though they may have the strongest sense of obedience. To say that by staying in a country a man agrees to a contract of obedience to government is just the same with carrying a man into a ship and after he is at a distance from land to tell him that by being in the ship1 he has contracted to obey the master2. The foundation of a duty cannot be a principle with which mankind is entirely unacquainted. They must have some idea, however confused, of the principle upon which they act.
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But again, upon the supposition of an original contract, by leaving the state you expressly declare that you will no longer continue a subject of it and are freed from the obligation which you owed it. Yet every state claims its own subjects and punishes them for such practices1, which would be the highest injustice if their living in the country implies a consent to a former agreement. Again, if there be such a thing as an original contract, aliens who come into a country, preferring it to others, give the most express consent to it. Yet a state always suspects aliens as retaining a prejudice in favour of their mother country, and they are never so much depended upon as free-born subjects2. So much is the English law influenced by this principle that no alien can hold a place under the government, even though he should be naturalized by act of parliament3. Besides, if such a contract were supposed, why should the state require an oath of allegiance, whenever a man enters on any office? For if they supposed a previous contract, what occasion is there for renewing it? Breach of allegiance or high treason is a much greater crime, and more severely punished, in all nations, than breach of contract, in which no more but fulfilment is required. They must, therefore, be on a different footing, the less can by no means involve in it the greater contract. Contract is not therefore the principle of obedience to civil government, but the principles of authority and utility formerly explained.
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[§ 2. Of the Nature of Government and its Progress in the first Ages of Society.]
We shall now endeavour to explain the nature of government, its different forms, what circumstances gave occasion for it, and by what it is maintained.
The forms of government, however various, may not improperly be reduced to these three, monarchical, aristocratical, and democratical. These may be blended in a great number of ways, and we usually denominate the government from that one which prevails.
Monarchical government is where the supreme power and authority is vested in one who can do what he pleases, make peace and war, impose taxes, and the like.
Aristocratical government is where a certain order of people in the state, either of the richest or of certain families, have it in their power to choose magistrates who are to have the management of the state.
Democratical government is where the management of affairs belongs to the whole body of the people together.
These two last forms may be called republican, and then the division of government is into monarchical and republican.
To acquire proper notions of government it is necessary to consider the first form of it, and observe how the other forms arose out of it.
In a nation of hunters there is properly no government at all1. The society consists of a few independent families [15] who live in the same village and speak the same language, and have agreed among themselves to keep together for their mutual safety, but they have no authority one over another. The whole society interests itself in any offence; if possible they make it up between the parties, if not they banish from their society, kill or deliver up to the resentment of the injured him who has committed the crime1. But this is no regular government, for though there may be some among them who are much respected, and have great influence in their determinations, yet he never can do anything without the consent of the whole.
Thus among hunters there is no regular government, they live according to the laws of nature.
The appropriation of herds and flocks which introduced an inequality of fortune, was that which first gave rise to regular government2. Till there be property there can be no government, the very end of which is to secure wealth, and to defend the rich from the poor3. In this age of shepherds, if one man possessed 500 oxen, and another had none at all, unless there were some government to secure them to him, he would not be allowed to possess them. This inequality of fortune, making a distinction between the rich and the poor, gave the former much influence over the latter, for they who had no flocks or herds must have depended on those who had them, because they could not now gain a subsistence from hunting, as the rich had made the game, now become tame, their own property. They therefore who had appropriated a number of flocks and herds, necessarily [16] came to have great influence over the rest; and accordingly we find in the Old Testament that Abraham, Lot, and the other patriarchs were like little petty princes. It is to [be] observed that this inequality of fortune in a nation of shepherds occasioned greater influence than in any period after that. Even at present, a man may spend a great estate, and yet acquire no dependents. Arts and manufactures are increased by it, but it may make very few persons dependent. In a nation of shepherds it is quite otherways. They have no possible means of spending their property, having no domestic luxury, but by giving it in presents to the poor, and by this means they attain such influence over them as to make them, in a manner, their slaves1.
We come now to explain how one man came to have more authority than the rest, and how chieftains were introduced. A nation consists of many families who have met together, and agreed to live with one another. At their public meetings there will always be one of superior influence to the rest, who will in a great measure direct and govern their resolutions, which is all the authority of a chieftain in a barbarous country. As the chieftain is the leader of the nation, his son naturally becomes the chief of the young people, and on the death of his father succeeds to his authority. Thus chieftainship becomes hereditary. This power of chieftainship comes in the progress of society to be increased by a variety of circumstances. The number of presents which he receives, increase his fortune, and consequently his authority; for amongst barbarous nations nobody goes to the chieftain, or makes any application for his interest, without something in his hand. In a civilized nation the man who gives the present is superior to the person who receives it, but in a barbarous nation the case is directly opposite.
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We shall now consider the different powers which naturally belong to government, how they are distributed, and what is their progress in the first periods of society.
The powers of government are three, to wit, the legislative, which makes laws for the public good: the judicial, or that which obliges private persons to obey these laws, and punishes those who disobey: the executive, or as some call it, the federal power, to which belongs the making war and peace1.
All these powers in the original form of government belonged to the whole body of the people. It was indeed long before the legislative power was introduced, as it is the highest exertion of government to make laws and lay down rules to bind not only ourselves, but also our posterity, and those who never gave any consent to the making them. As for the judicial power, when two persons quarrelled between themselves, the whole society naturally interposed, and when they could not make up matters, turned them out of the society. During this early age crimes were few2, and it was long before the punishment was made equal to the crime.
Cowardice and treason were the first crimes punished, for cowardice among hunters is considered as treason, because when they went out in small numbers, if their enemy attacked them, and some of their party deserted them, the rest might suffer by it, and therefore they who deserted were punished for treason.
The priest generally inflicted the punishment, as it were by command of the gods, so weak at that time was government. The power of making peace and war in like manner belonged to the people, and all the heads of families were consulted about it.
Though the judicial power which concerns individuals [18] was long precarious, the society first interposing as friends and then as arbitrators, the executive power came very soon to be exerted absolutely. When any private quarrel happens concerning the property of this cow, or of that ox, society is not immediately concerned, but it is deeply interested in making peace and war. In the age of shepherds this power is absolutely exerted. In Great Britain we can observe vestiges of the precariousness of the judicial power, but none of the executive. When a criminal was brought to trial, he was asked how he would choose that his cause should be decided, whether by combat, the ordeal trial, or the laws of his country. The society only obliged him not to disturb them in the decision. In England the question still remains, though the answer is not now arbitrary1. It was very common in the ruder ages to demand a trial by dipping their hands in boiling water, by means of which almost every one was found innocent, though now scarce any one would escape by this means. When people were constantly exposed to the weather, boiling water could have little effect upon them, though now, when we are quite covered, it must have a contrary effect2. This choice of trial shows the weakness of the judicial laws. We find that the judicial combat continued in England as late as the days of Queen Elizabeth3. It has now worn out gradually and insensibly without so much as a law or a rule of court made against it.
In the periods of hunters and fishers, and in that of shepherds, as was before observed, crimes are few; small crimes passed without any notice. In those ages no controversies arose from interpretations of testaments, settlements, contracts, which render our law-suits so numerous, [19] for these were unknown among them. When these took place and difficult trades began to be practised, controversies became more frequent, but as men were generally employed in some branch of trade or another, without great detriment to themselves they could not spare time to wait upon them. All causes must be left undecided, which would be productive of every inconvenience, or they must fall upon some other method more suitable to the several members of society. The natural means they would fall upon would be to choose some of their number to whom all causes should be referred. The chieftain who was before this distinguished by his superior influence, when this comes to be the case, would preserve his wonted precedence, and would naturally be one of those who were chosen for this purpose. A certain number would be chosen to sit along with him, and in the first ages of society this number was always considerable1. They would be afraid to trust matters of importance to a few, and accordingly we find that at Athens there were 500 judges at the same time2. By this means the chieftain would still further increase his authority, and the government would appear in some degree monarchical. But this is only in appearance, for the final decision is still in the whole body of the people, and the government is really democratical.
The power of making peace and war, as was before observed, was at first lodged in the whole body of the people. But when society advanced [and] towns were fortified, magazines prepared, stocks of money got together, generals and officers appointed, the whole body of the people could not attend to deliberations of this kind. This province would either fall to the court of justice, or [20] there would be another set of people appointed for this purpose, though it would naturally at first fall to the court of justice. This is properly called the senatorial power, which at Rome took care of the public revenue, public buildings, and the like. But afterwards at Rome, the court of justice and the senatorial one became quite distinct. The same may be said of the Areopagite court at Athens.
We shall now make some observations on nations in the two first periods of society. Those, viz. of hunters and shepherds.
In a nation of hunters and fishers few people can live together, for in a short time any considerable number would destroy all the game in the country, and consequently would want a means of subsistence. Twenty or thirty families are the most that can live together, and these make up a village. But as they live together for their mutual defence, and to assist one another, their villages are not far distant from each other. When any controversy happens between persons of different villages, it is decided by a general assembly of both villages. As each particular village has its own leader, so there is one who is the leader of the whole nation. The nation consists of an alliance of the different villages, and the chieftains have great influence on their resolutions, especially among shepherds. In no age is antiquity of family more respected than in this. The principle of authority operates very strongly, and they have the liveliest sense of utility in the maintenance of law and government.
The difference of the conduct of these nations in peace and war is worth our observation.
The exploits of hunters, though brave and gallant, are never very considerable. As few of them can march together, so their number seldom exceeds 200 men, and even these cannot be supported above fourteen days. There is therefore very little danger from a nation of hunters. Our colonies are much afraid of them without any just grounds. [21] They may indeed give them some trouble by their inroads and excursions, but can never be very formidable1. On the other hand a much greater number of shepherds can live together. There may be a thousand families in the same village. The Arabs and Tartars, who have always been shepherds, have on many occasions made the most dreadful havoc. A Tartar chief is extremely formidable, and when one of them gets the better of another, there always happens the most dreadful and violent revolutions. They take their whole flocks and herds into the field along with them, and whoever is overcome loses both his people and wealth. The victorious nation follows its flocks, and pursues its conquest, and if it comes into a cultivated country with such numbers of men, it is quite irresistible. It was in this manner that Mahomet ravaged all Asia2.
There is a very great difference betwixt barbarous nations and those that are a little civilized. Where the land is not divided, and the people live in huts which they carry about with them, they can have no attachment to the soil, as all their property consists in living goods which they can easily carry about with them. On this account barbarous nations are always disposed to quit their country. Thus we find such migrations among the Helvetii, Teutones, and Cimbrians. The Huns, who dwelt for a long time on the north side of the Chinese wall, drove out the Astrogoths on the other side of the Palus Maeotis, they again the Wisigoths, &c.
[§ 3. How Republican Governments were introduced.]
Having considered the original principles of government, and its progress in the first ages of society, having found [22] it in general to be democratical, we come now to consider how republic[an] governments were introduced.
It is to be observed in general that the situation of a country, and the degree of improvement of which it is susceptible, not only in the cultivation of the land, but in other branches of trade, is favourable to the introduction of a republican government. There is little probability that any such government will ever be introduced into Tartary or Arabia, because the situation of their country is such that it cannot be improved. The most part of these is hills and deserts which cannot be cultivated, and is only fit for pasturage. Besides, they are generally dry, and have not any considerable rivers1. The contrary of this is the case in those countries where republican governments have been established, and particularly in Greece. Two-thirds of Attica are surrounded by sea, and the other side by a ridge of high mountains. By this means they have a communication with their neighbouring countries by sea, and at the same [time] are secured from the inroads of their neighbours. Most of the European countries have most part of the same advantages. They are divided by rivers and branches of the sea, and are naturally fit for the cultivation of the soil and other arts. We shall now see how favourable this is to the reception of a republican government. We may suppose the progress of government in Attica in the infancy of the society to have been much the same with that in Tartary and the other countries we have mentioned, and we find in reality that at the time of the Trojan war it was much in the same situation, for then there was little or no cultivation of the ground, and cattle was the principal part of their property. All the contests about property in Homer regard cattle2. Here, as in every other country in the same period, the [23] influence of the chieftain over his own vassals was very considerable. A people inhabiting such a country, when the division of land came to take place and the cultivation of it to be generally practised, would naturally dispose of the surplus of their product among their neighbours, and this would be a spur to their industry. But at the same time it would be a temptation to their neighbours to make inroads upon them. They must therefore fall upon some method to secure themselves from danger, and to preserve what it formerly cost them so much trouble to procure. It would be more easy to fortify a town in a convenient place than to fortify the frontiers of the whole country, and accordingly this was the method they fell upon. They built fortified towns in the most convenient places, and whenever they were invaded took shelter in them with their flocks and moveable goods, and here they cultivated the arts and sciences. Agreeable to this, we find that Theseus fortified Athens and made the people of Attica carry into it all their goods1, which not only increased his power over them, but also the authority of that state above others. When people agreed in this manner to live in towns, the chieftains of the several clans would soon lose their authority, and the government would turn republican, because their revenue was small, and could not make them so conspicuous and distinguished above others as to retain them in dependence. The citizens gradually increase in riches, and coming nearer the level of the chieftain, become2 jealous of his authority. Accordingly we find that Theseus himself was turned out. After this nine regents were set up who were at first to have authority for life, but were afterwards continued only for ten years3. Thus Athens, and in [24] like manner all the Greek states, came from a chieftainship to something like monarchy, and from thence to aristocracy. In general, as was before observed, the revenue becomes insufficient to support the authority of a number of chieftains, but a few, getting into their hands superior wealth, form an aristocracy.
It is to be observed that there is a considerable difference between the ancient and modern aristocracies. In the modern republics of Venice, Milan, &c., the government of the state is entirely in the hands of the hereditary nobility, who are possessed of all the three powers of government. Both in modern and ancient aristocracies the people had the choice of those in authority, but the difference is this, that only the nobility could be elected in modern times. The institution of slavery is the cause of this difference. When the free men had all their work done by slaves, they had it in their power to attend on public deliberations, but when the ground came to be cultivated by free men, the lower sort could not have it in their power to attend, but, consulting their interest, they would endeavour to avoid it. Agreeable to this we find that at Venice the populace desired to be free of it. In the same manner the towns in Holland voluntarily gave it up to the town council, which was, in consequence of this, vested with the whole power.
Nothing like this happened in the republics of Greece and Rome. In the early ages of these states, though the populace had the whole power, they were called aristocracies, because they always chose their magistrate from among the nobility. They were not indeed hindered by any express law to do otherwise, but it was customary [25] to do so, because the lower classes were maintained by the fortunes of the rich, and thereby became dependent on them, and gave their vote for him whose bounty they shared. The nobility might differ among themselves about elections, but would never propose the election of plebeians. Thus the influence of the nobility was the law, and not any express prohibition.
At Athens Solon enacted that none of the lower of the four classes into which the people were divided should be elected; but afterwards magistrates were elected out of all classes, and the government became democratical1.
At Rome it was long before the power of being elected extended to the whole body of the people. After decemvirs were appointed, the power of the people began to encroach more and more upon the nobles, and still more when they got military tribunes elected. The cause of this was the improvement of arts and manufactures. When a man becomes capable of spending on domestic luxury what formerly supported an hundred retainers, his power and influence naturally decrease. Besides, the great usually had every trade exercised by their own slaves, and therefore the tailors and shoemakers, being no longer dependent on them, would not give them their votes. The popular leaders then endeavoured to get laws passed by which they might be allowed to be elected magistrates. It was long before the generality even of the plebeians would consent to this, because they thought it disagreeable to have their equals so far above them2. In process of time, however, they got it enacted that there should be in authority an equal number of patricians and plebeians, viz., a consul chosen out of each.
[26]
[§ 4. How Liberty was lost.]
We have shown how republics arose, and how they again became democratical; we are next to show how this liberty was lost, and monarchy or something like it was introduced.
Considering these states in the situation above described, as possessed of their towns and a small territory in the adjacent country, they must either confine themselves within their ancient boundaries, or enlarge their territory by conquest. They must either be what may not improperly be called a defensive republic or a conquering one. The Grecian states are a good example of the former, and Rome and Carthage of the latter. We are to show how each of these lost their liberty: and first how the defensive states lost theirs.
When a country arrives at a certain degree of refinement it becomes less fit for war. When the arts arrive at a certain degree of improvement, the number of the people increases, yet that of fighting men becomes less. In a state of shepherds the whole nation can go out to war; and even when it becomes more refined, and the division of labour takes place, and everyone is possessed of a small farm, they can send out a great number. In such an age their campaigns are always in summer, and from seed time till harvest their young men have nothing ado but to serve in them. The whole business at home can be performed by the old men and women, and even these have sometimes beat the enemy in the absence of their soldiers. In a state where arts are carried on, and which consists chiefly of manufacturers1, there cannot be sent out such numbers, [27] because if a weaver or tailor be called away, nothing is done in his absence. Scarce one in an hundred can be spared from Britain and Holland1. Of an hundred inhabitants fifty are women, and of fifty men twenty-five are unfit for war. In the last war Britain could not spare so many, as any one almost may be convinced, if he reflect whether among his acquaintances he missed one out of twenty-five. According to this principle Athens, though a small state, could once send out 30,000 fighting men, which made a very considerable figure; but after the improvement of arts, they could not send out more than 10,000, which was quite inconsiderable. Britain, notwithstanding the politeness and refinement at which it has arrived, on account of the largeness of its territories2, can still send out a very formidable army, but a small state necessarily declines. However, there is one advantage attending slavery in a small republic, which seems to be its only advantage, that it retards their declension. At Rome and Athens the arts were carried on by slaves, and the Lacedaemonians went so far as not to allow any freeman to be brought up to mechanic employments, because they imagined that they hurt the body. Accordingly we find that at the battle of Chaeronea, when the Athenians were come to a considerable degree of politeness, they were able to send out great numbers of men purely on this account, that all trades were carried on by slaves. We may observe that in the Italian republics, where slavery did not take place, they soon lost their liberty. When, in consequence of the improvement of arts, a state has become opulent, it must be reckoned a great hardship to go out to war, whereas among our ancestors it was thought no inconvenience to take the field. A knight (eques) was no more than a horseman, and a foot-soldier was a gentleman. They were inured to hardships at home, and therefore a campaign [28] appeared no way dreadful. But when opulence and luxury increased, the rich would not take the field but on the most urgent account, and therefore it became necessary to employ mercenaries and the dregs of the people to serve in war. Such persons could never be trusted in war unless reduced to the form of a standing army, and subjected to rigid discipline, because their private interest was but little concerned, and therefore without such treatment they could not be expected to be very resolute in their undertakings. Gentlemen may carry on a war without much discipline, but this a mob can never do. As the citizens in Greece thought it below them to bear arms, and entrusted the republic to mercenaries, their military force was diminished, and consequently a means was provided for the fall of the government. Another cause of their declension was the improvement of the art of war, which rendered everything precarious. In early ages it was very difficult to take a city, as it could only be done by a long blockade. The siege of Troy lasted ten years, and Athens once could withstand for two years1 a siege both by land and sea. In modern times the besiegers have an advantage over the besieged, and a good engineer can force almost any town to surrender in six weeks. But it was not so once. Philip of Macedon made great improvements in this art, which at last occasioned the dissolution of all the Greek governments and their subjection to foreign powers. Rome stood out much longer than Greece because the number of its citizens was daily increasing. At Rome any person might be made a citizen, as this was of little advantage. But at Athens the right of citizenship was given to very few, as it was itself a little estate. However, Rome itself after opulence and luxury increased, shared the fate of other republics, though the event was brought about in a different manner. Till the time of Marius, the better sort of free men went out [29] to the field. Marius was the first that recruited [slaves]. He gathered the freed slaves into his army, and established a rigid military discipline. That army which before had consisted of gentlemen was now made up of runaway slaves and the lowest of the people. With such an army Marius conquered and kept in awe the provinces. He had the disposal of all offices and posts in this army. Every one among them owed his rise to him, and was consequently dependent upon him.
Whenever such a general was affronted he would naturally apply to his army for relief, who would easily be induced to side with their general against their own nation. This was the very expedient that Marius fell upon. By the influence of Sylla he was, in his absence, banished from Rome, and a price set upon him. Marius applied to his army, who were determined at all events to follow him, marched to Rome when Sylla was abroad on an expedition against Mithridates, took possession of the government and vanquished Sylla’s party. Marius died soon after, and Sylla, having conquered Mithridates, returned to Rome, and in his turn beat the Marian party, changed the government into a monarchy, and made himself perpetual Dictator, though he afterwards had the generosity and magnanimity to resign it. About thirty or forty years afterwards the same thing happened between Caesar and Pompey. Caesar as well as Sylla got himself made perpetual Dictator, but had not enough of public spirit to resign it. His veteran troops which were settled in Italy, mindful of the favours which he conferred upon them, after his death gathered about Octavius, his adopted son, and invested him with the supreme authority. Much the same thing happened in our own country with respect to Oliver Cromwell. When the Parliament became jealous of this man, and disbanded the army, he applied to them in a manner indeed more canting than that of the Roman generals, and got the Parliament turned out and a new [30]one appointed more suitable to his mind, with the whole authority vested in himself1.
Thus we have seen how small republics, whether conquering or defensive, came at length to a dissolution from the improvements in mechanic arts, commerce, and the arts of war.
[§ 5. Of Military Monarchy.]
We are next to consider what form of government succeeded the republican.
When small republics were conquered by another state, monarchy, or whatever other government pleased the conquerors, was established, though they generally followed the model of their own country. The Athenians always established democracy, and the Spartans aristocracy. The Romans indeed more prudently divided their conquests into provinces which were governed pretty absolutely by persons appointed by [the] Senate for that purpose. The case is somewhat different when a state is conquered by its own subjects. Both the nature of the action and the instruments by which it is performed require a military monarchy, or a monarchy supported by military force, because it is as necessary to keep them in awe as to conquer them. This was the form of government that was established in Rome during the time of the emperors. These emperors took the whole executive power into their own hands, they made peace and war as they thought proper, and even named the magistrates either immediately themselves, or by means of a Senate of their own appointment. They did not, however, alter any institutions of the civil law; right and wrong were decided as formerly. Cromwell did the same in our own country, he kept the State in awe by an insignificant army, but he allowed the [31] judge to determine right and wrong as formerly. Nay, he made such improvement in the civil law by taking away wardships, &c., that the first thing the Parliament of Charles II did was to confirm many of Cromwell’s laws.
The Roman authors tell us that justice was never better administered than under the worst of the emperors, Domitian and Nero1. It is the interest of all new administrators to make few alterations in what the generality of people are much concerned and have been long accustomed to. They will more easily go into anything else, when they are indulged in this. It was particularly the interest of the emperors to keep up the ancient system of laws, and accordingly we find that all consuls who misbehaved in their respective provinces were severely punished. It was not so under the republic; the most scandalous crimes were committed by governors, as we learn from Cicero’s Orations. A military government allows the strictest administration of justice. Nobody indeed can have a fair trial where the Emperor is immediately concerned: then he will do as he pleases; but where he is in no way interested it is his interest to adhere to the ancient laws.
It is to be observed that there was a very great difference between the military government established at Rome and those that were established in Asia. At Rome the conquerors and conquered were the same people. The conquerors themselves were sensible of the good effects of these laws, and were so far from being willing to abrogate them, that they made improvements upon them. It is not so with the Asiatic governments, though they are purely military. Turkey, Persia, and the other countries were conquered by Tartars, Arabians, and other barbarous nations who had no regular system of laws, and were entirely ignorant of their good effects. They established in all public offices their own people, who were entirely ignorant [32] of all the duties of them. A Turkish bashaw or other inferior officer is decisive judge of everything, and is as absolute in his own jurisdiction as the Signior. Life and fortune are altogether precarious, when they thus depend on the caprice of the lowest magistrate. A more miserable and oppressive government cannot be imagined.
[§ 6. How Military Monarchy was dissolved.]
We have considered how the dissolution of small states was brought about, and what form of government succeeded them, by what means an imperial government was introduced into conquering republics, and what kind of administration this was. We come now to show how this military monarchy came to share that fated dissolution that awaits every state and constitution whatever.
In the time of the imperial governments at Rome they had arrived at a considerable degree of improvement both in arts and commerce. In proportion as people become acquainted with these and their consequence, domestic luxury, they become less fond of going out to war; and besides, the government finds that it would hurt its revenue [to call out] those employed in manufactures. If barbarous nations be in the neighbourhood, they can employ them as soldiers at an easier rate, and at the same time not hurt their own industry. Sensible of these things, the Romans recruited their armies in Germany, Britain, and the northern barbarous countries which bordered on the Roman Empire. They had the liberty of recruiting in these countries in the same manner that the Dutch did in Scotland before the beginning of the last war1. After they had gone [33] on for some time in this practice, they would find for several reasons that it would be much easier to make a bargain with the chieftains of these barbarous nations whom they employed, and give him so much money to lead out a number of men to this or that expedition.
Supposing then an institution of this kind, the barbarous chieftain, at the head of his own men, possessed the whole military authority of the people for whom he fought, and whenever the government in the least offended him, he could turn his arms against those who employed him, and make himself master of their country. We find that all the western provinces were taken possession of much in this manner. After they had by their practice given such invitations to the inroad of barbarians, we find that most of the Roman provinces were infested by them. In this country the Romans built a wall and kept garrisons to secure their province from the pillagers of the north. The garrisons which secured this station were called away to the defence of Gaul, which at that time was also infested. The historians tell us that the Britons then got leave to shake off the Roman yoke, but it could be no advantage to the Romans to give any country in Britain its liberty, and it was no favour done it to have no protection from Rome, which the province in reality wanted to have continued. The Romans undoubtedly meant that they should take the trouble of defending themselves, as they were, for some time, to be otherwise employed. The Britons, however, did not like the proposal, but resolved to invite over a body of Saxons to their relief. Accordingly Hengist and Hursa came over with a considerable army which was frequently recruited, entirely drove out the Romans1, and [34] finding themselves masters of the whole country, took possession of it and founded the Saxon Heptarchy. In this manner fell the Western Empire of Europe, and military monarchy came to ruin. We find in the last hundred and fifty years of the Roman Empire this custom of recruiting in barbarous nations carried on, and many of their chieftains had greatly raised themselves. Patricius Ælias1 under Honorius, and many others, acquired great power. In the same manner all the Asiatic governments were dissolved. Their soldiers were hired from Tartary, arts and manufactures were carried on, the people made more by their trades than by going to war. The East India trade which Italy and some other nations carried on by the Red Sea had rendered them very opulent. Every nation as well as Rome was willing to make a bargain with the neighbouring barbarous princes to defend them, and this proved the ruin of the government.
[§ 7. Of the Allodial Government.]
Having now considered all the ancient forms of government of which we have any distinct accounts, we show next what form succeeded the fall of the Roman Empire, and give an account of the origin of the modern governments of Europe.
The government which succeeded this period was [35] not altogether unlike the Tartar constitution formerly mentioned, though the Germans and others who, upon the fall of the Roman Empire, took possession of the western countries, had better notions of property, and were a little more accustomed to the division of lands. The king and the other chieftains, after they had become conquerors of the country, would naturally for their own purposes take possession of a great part of it. They would distribute it among their vassals and dependents, as they thought proper, and would leave but a very inconsiderable share to the ancient inhabitants. They did not, however, extirpate them entirely, but still paid them some little regard. Among the Franks who took possession of Gaul, the person who killed a Frank paid only five times the fine which was payable for killing one of the old inhabitants1. As these nations were almost lawless, and under no authority, depredations were continually committed up and down the country, and all kinds of commerce stopped.
In consequence of this arose the allodial government, which introduced an inequality of fortune. All these chieftains held their lands allodially without any burden of cess, wardship, &c. One of these great lords was possessed of almost a county, but as he was unable himself to reap any advantage from so much of it, he found it necessary to parcel it out among vassals, who either paid a certain annuity, attended him in war, or performed some service of this nature. By this means his incomes became so great that, as there was then no domestic luxury, he could not consume them in any way but by maintaining a great number of retainers about his house. These were another species of dependents, who increased his authority and secured domestic peace, for they kept the tenants in awe and were kept in awe by the tenants. So great was the authority of these lords, that if any one claimed a debt from [36]any of their vassals the king had no power to send a messenger into the lord’s dominions to force payment1. He could only apply to the lord, and desire him to do justice. To them also lay the last resort2in judging of all manner of property under their own jurisdiction, the power of life and death, of coining money, and of making bye-laws and regulations in their own territories. But besides this power of government, which in a great measure was betwixt the king and the great lords, if there had been no other the balance would not have been properly kept. But besides the allodial lords there was a great number of free people who were allowed to consult about justice in their own spheres. Every county was divided into hundreds and subdivided into tens. Each of these had their respective court, viz:—the decennary court, the hundred court. Over those was placed the Wittenagemot or assembly of the whole people3. Appeals were brought from the ten to the hundred, and from it to [the] county court. An appeal could be brought to the king’s court in case the inferior court denied justice by refusing to hear a cause, or if it was protracted by unreasonable delays4. Appeals were also sometimes carried to the Wittenagemot, which was made up of the king, allodial lords, aldermen or earls, bishops, abbots, &c. This was the first form of government in the West of Europe, after the downfall of the Roman Empire.
[§ 8. Of the Feudal System.]
We are next to show how the allodial government was overturned and the feudal system introduced.
As these great lords were continually making war upon [37] one another, in order to secure the attendance of their tenants, they gave them leases of the lands which they possessed from year to year, which afterwards, for the same reasons, came to be held for life1.
When they were about to engage in any very hazardous enterprise, that, in case of the worst consequences, the families of their vassals who went along with them might not be left destitute, and that they might still be more encouraged to follow them, they extended this right to the life of the son and grandson: as it was thought cruel to turn out an old possessor, the right became at last hereditary, and was called feuda2. The feudal tenant was bound to certain offices, but service in war was the chief thing required, and if the heir was not able to perform it, he was obliged to appoint one in his place. It was in this manner that wardships were introduced3. When the heir female succeeded, the feudal baron had a right to marry her to whomever he pleased, because it was thought reasonable that he should have a vassal of his own choosing4. The prima seizin was another emolument of the master. When the father died the son had no right to the estate till he publicly declared his willingness to accept of it; and on this account the lord sometimes had the estate in his own [38] hand, and enjoyed the profits of it for some time. The heir paid a sum to get it back, which was called relief1. There was still another emolument belonging to the lord, called escheat; that is, after the estate became hereditary, if there was no heir of the family to succeed, it returned to the lord. The same thing happened if the heir failed of performing the services for which he had the tenure2. There were besides these some small sums due to the superior on redeeming his son when taken prisoner, or on knighting him3, and on the marriage of his daughter, and some such occasions4.
The same causes that made allodial lords give away their lands to their vassals on leases which afterwards became hereditary, made the king give away the greater part of his lands to be held feudally: and what a tenant possessed in feu was much the same with real property. They were indeed subject to the above-mentioned emoluments, but they possessed their lands for themselves and posterity. Feudal property may in some respects be inferior to allodial, but the difference is so inconsiderable that allodial lordships soon become to be held feudally. About the tenth century all estates came to be held feudally, and the allodial lords, that they might enjoy the king’s protection, exchanged their rights for a feudal tenure5.
It is to be observed that those historians who give an account of the origin of feudal laws from the usurpation of the nobility are quite mistaken6. They say that the nobility wanted to have those lands which they held at pleasure of the king to be hereditary, that it might not be in his power to turn them out, and that the feudal law was introduced [39] on account of the diminution of the king’s power. But it was actually the contrary; it was on account of the increase of his power, and it required great influence in the king to make the lords hold their lands feudally. The best proof of this is that William the Conqueror changed all the allodial lordships in England into feudal tenures and Malcolm Kenmure1 did the same in Scotland2.
The introduction of the feudal system into all Europe took away everything like popular government. The popular courts were all removed. Neither decennary, hundred, nor county courts were allowed. All public affairs were managed by the king and the great feudal lords. No commoners, none but hereditary lords had a right to sit in parliament. Those great lords who held immediately of the king were considered as his companions, pares convivii comites. They advised concerning public affairs, and nothing of importance could be done without them. The consent of the majority was to be obtained before any law could be passed, and it was necessary to have them called together. The barons or inferior lords observed the same method in their jurisdictions, and they who held3 of them were called pares curiae baronis. It was likewise necessary that they should be consulted, as they too were in arms. The baron could neither go to war, nor make a law, without the consent of the majority. Nothing could be done in the kingdom without almost universal consent, and thus they fell into a kind of aristocracy with the king at the head of it.
Besides these orders of men of which we have taken notice, there were two others which in that period were held in the utmost contempt4. The first was that of the villains (villani) who ploughed the ground and were [40] adscripti glebae. The second order was the inhabitants of boroughs, who were much in the same state of villainage with the former, or but a little beyond it. As the boroughs were much under the influence of the lord who gave them protection, it was the king’s interest to weaken as much as possible this interest and to favour their liberty. Henry II carried this so far that if a slave escaped to a borough and lived there peaceably a year and day, he became free1. He gave them many other privileges, but what secured them most was the power of forming themselves into corporations upon paying a certain sum to the king. They held of him in capite2, and at first every man paid his proportion to the king3; but afterwards the borough paid the sum and levied it as it seemed proper to itself. By this means, as the number of inhabitants increased, the burden became lighter, and the boroughs became opulent and very considerable. In the reign of King John a law was made that if a lord married his ward to a burgher he only forfeited his wardship4.
[§ 9. Of the English Parliament.]
Thus we have considered the several orders of men of which the whole kingdom then consisted. We shall next show how each of them got a share in the government, and what share of it was allotted to each of them. Every person who had an estate great or small, had a right to sit [41] in the king’s court, and to consult and advise with him about public matters. In the reign of William Rufus 700 sat in parliament1. In Henry III’s time it was enacted that the smaller barons, who could not afford to attend in parliament, should send a representative. These representatives were considered as lords, and sat in the same house with them2. In the same manner boroughs came to have representatives in parliament, because they themselves were become opulent and powerful, and the king found it his interest to give them some weight so as to lessen the authority of the peers3. It became necessary to have their consent as well as that of the barons before any law was passed. These representatives of the boroughs sat in a house by themselves, and the smaller barons, being far from the level of the great lords with whom they sat, and not much superior to the commons, soon joined them4. The king’s revenues were then on many occasions insufficient for his demands. They consisted chiefly, first, of the royal demesnes; secondly, knights’ services; thirdly, feudal emoluments such as wardships; fourthly, fines, amercements, compositions for crimes, &c.; fifthly, all waff5 goods, res nullius, &c. These were the principal sources of the king’s revenue. But these were by no means sufficient to supply the increasing expenses of government. The two bodies of the commoners when joined made a very considerable figure, and the greater part of the subsidies came from them. The king excused the smaller barons from a constant attendance, and called [42] them or not as he pleased1. When he did call them he issued a writ summoning them, and from this was the origin of creating peers by writ or patent, which is the only way of doing it at present.
[§ 10. How the Government of England became Absolute.]
Having shown how the House of Commons became considerable, we shall next show how the nobility’s power decreased and the government turned arbitrary.
In all the courts of Europe the power of the nobility declined from the common causes, the improvements in arts and commerce. When a man could spend his fortune in domestic luxury he was obliged to dismiss his retainers. By their ancient rustic hospitality they could more easily maintain 1000 retainers than at present lodge one lord for a night. Richard, Earl of Warwick, who was styled Make-King, maintained every day forty thousand people besides tenants2. But when luxury took place he was unable to do this3. Thus the power of the nobility was diminished, and that too before the House of Commons had established its authority, and thus the king became arbitrary. Under the House of Tudor the government was quite arbitrary, the nobility were ruined, and the boroughs lost their power.
It might be expected that the sovereign also should have lost his authority by the improvement of arts and commerce, but a little attention will convince us that the case must have been quite opposite. A man possessed of forty thousand pounds a year, while no other body [43] can spend above a hundred, cannot be affected by the increase of luxury. This is precisely the case of the king. He is possessed of a million, while none of his subjects can spend above thirty or forty thousand pounds, and therefore he can spend it in no other way, but by maintaining a great number of people1. Luxury must therefore sink the authority of the nobility, whose estates are small in proportion to that of the king; and as his continues unaffected, his power must become absolute. Though this was the case in most nations of Europe, yet in Germany it was quite otherways. The monarchy there was elective, and consequently never could have so much authority. The country is much larger than any other in Europe, and at the dissolution of the feudal government the nobility, who were possessed of considerable fortunes already, got more in proportion than the rest; thus their estates rose so high above those that were immediately below them, that it was impossible for them to spend them in luxury, and therefore they were able to keep a considerable number of retainers. Thus in Germany the power of the nobility was preserved, while in England it was utterly destroyed, and the king rendered absolute.
[§ 11. How Liberty was restored.]
We have now shown how the government of England turned absolute: we shall next consider how liberty was restored, and what security the British have for the possession of it.
The act of Henry VII allowing the nobility to dispose of their estates2 had already placed them entirely on a level with the commons. Elizabeth, who always affected [44] popularity, was continually unwilling to impose taxes on her subjects. In order to supply her exigencies she sold the royal demesnes, as she knew that none of her offspring was to succeed her1. Her successors therefore, standing in need of frequent supplies, were obliged to make application to parliaments. The Commons were now become very considerable, as they represented the whole body of the people; and as they knew the king could not want, they never granted him anything without in some degree infringing his privileges. At one time they obtained freedom of speech, at another they got it enacted that their concurrence should be necessary to every law. The king, on account of his urgent necessities, was forced to grant whatever they asked, and thus the authority of the parliament established itself. A peculiar advantage which Britain enjoyed after the accession of James I was that as the dominions of Britain were every way bounded by the sea, there was no need for a standing army, and consequently the king had no power by which he could overawe either people or parliament. The 1,200,0002 pounds a year which was settled upon the king at that time3 might have secured his independency, had not the bad economy of Charles II rendered him as indigent as any of his predecessors. His successor was still more dependent, and was forced to quit the throne and the kingdom altogether. This brought in a new family, which, as the royal demesnes were entirely alienated, depended wholly upon taxes, and were obliged to court the people for them. Ever since, the king’s revenue, though much greater than it was then, depends so much on the concurrence of the parliament that it never can endanger the liberty of the nation. [45] The revenues at present consist chiefly of three branches, to wit, first, the civil list, which is entirely consumed in the maintenance of the royal family, and can give the king no influence, nor hurt the liberty of the subject; secondly, the annual land and malt taxes, which depend entirely on the parliament; thirdly, the funds mortgaged for paying off the public debts, such as the taxes on salt, beer, malt1, &c., levied by the officers of custom and excise. These the king can by no means touch: they are paid to the court of exchequer, which is generally managed by people of interest and integrity, who possess their offices for life and are quite independent of the king. Even they can pay nothing but to those appointed by parliament, and must have the discharge of the public creditor. The surplus of the mortgages2 goes into what is called the sinking fund for paying the public debt, [which] secures the government in the present family, because if a revolution were to happen, the public creditors, who are men of interest, would lose both principal and interest. Thus the nation is quite secure in the management of the public revenue, and in this manner a rational system of liberty has been introduced into Britain. The parliament consists of about 200 peers and 500 commoners. The Commons in a great measure manage all public affairs, as no money bill can take its rise except in that House. Here is a happy mixture of all the different forms of government properly restrained, and a perfect security to liberty and property.
There are still some other securities to liberty. The judges appointed for the administration of justice are fixed for life, and quite independent of the king. Again, [46] the king’s ministers are liable to impeachment by the House of Commons for maladministration, and the king cannot pardon them1. The Habeas Corpus Act, by which the arbitrary measures of the king to detain a person in prison as long as he pleased is restrained, and by which the judge who refuses to bring a prisoner to his trial if desired within forty2 days is rendered incapable of any office, is another security to the liberty of the subject. The method of election, and placing the power of judging concerning all elections into the hands of the Commons, are also securities to liberty. All these established customs render it impossible for the king to attempt anything absolute.
Besides all these, the establishment of the courts of justice is another security to liberty. We shall therefore consider the origin of these courts, the history of them, and their present state.
[§ 12. Of the English Courts of Justice.]
In England, and indeed in all Europe, after the feudal law was introduced, the kingdom was governed and justice administered in the same manner as by a baron in his jurisdiction; as a steward managed all affairs in the county belonging to the lord, so the grand justiciary had the management of all in the kingdom. He appointed sheriffs and other inferior officers. He was himself a great lord, and, by the authority of his office, in every country but England he became as powerful as the king. But Edward I saw the danger and got it prevented. All kinds of law, criminal or civil, were determined by the justiciary or king’s court which always attended the king: those delays and adjournments in civil suits to which this court [47] always attending the king must have been liable, gave occasion for separating common causes from the king’s court, and fixing for them at Westminster a court of common pleas. Criminal causes have always a more speedy determination1. One would indeed think that when a person’s life is at stake, the debate should be longer than in any other case: but resentment is roused in these cases and precipitates to punish. It is a matter of no moment to the spectator how a trifling matter of cash be determined, but it is by no means so in criminal cases. When common pleas were taken away the criminal and fiscal powers were connected, and the power and authority of the great justiciary little diminished. Afterwards Edward I divided the business of the justiciary into three different courts, viz:—
- The court of king’s bench.
- The court of exchequer.
- The court of common pleas.
In the last all civil suits were tried. In the first all criminal ones, and to it lay the appeal from the court of common pleas. It was called king’s bench, because the king then frequently sat upon it, though this cannot now be done, as it is improper that the king should judge of breaches of the king’s peace. The court of exchequer judged in all affairs between the king and his subjects, the debts due by either of them to the other, and whatever regarded the revenue. The court of chancery was originally no court at all. The chancellor was no more than a keeper of briefs or writs according to which justice was done. What gave occasion to the keeping of these briefs shall now be considered.
Edward I abolished the power of the grand justiciary2. He employed mean persons to be judges, generally clergymen. [48] As the decision depended on such persons, their jurisdictions would be exercised very precariously, and accordingly we find that both in criminal and civil cases they interposed with hesitation, in the former as mediators, and in the latter as arbitrators, and accordingly they would be unwilling to give justice in those cases where they had no precedent from the court of justiciary. On this account all the briefs by which the court of justiciary determined were kept. To keep these seems to have been originally the office of chancellor. If a person had a law-suit he went to the clerk of the court of chancery, who examined the briefs, and if he found one that comprehended your case, justice was done accordingly; but if one could not be found, you could not have justice. Thus we find that the chancellor was not a judge originally. In Scotland the office of the English chancellor is lodged in the court of session. In England a brief was sent from the chancellor to the sheriff by which he was obliged to appear before the king’s judges. Judges then, from the irregularity and inaccuracy of their proceedings, gave great jealousy to the king, and on this account many severe sentences went out against them; £10,000 has at one time been levied from the judges on account of corruption1. They were therefore tied down strictly to the chancery briefs, and always bound by their records in such a manner that they could not be in the least amended, not so much as a word wrong spelled rectified. This precision still remains in some cases where not taken away by the statutes of amendment; a mere orthographical blunder, though evidently so, has in many cases made the whole of no effect. The judges were therefore tied down to the precise words of the brief, or if there was a statute, to the words of it. This was the origin and jurisdiction of the court of chancery.
[49]
During the improvement of the law of England there arose rivalships among the several courts. We shall therefore show how each of them began to extend its power and encroach [on] the privileges of another, and how the court of chancery increased its influence. The court of king’s bench, which judged criminal causes and every breach of the king’s peace, was the first that assumed immediately, and previously to an appeal, to judge in civil causes, and to encroach on the jurisdiction of the court of common pleas, by what is called a writ of error, that is, they supposed the person to be guilty of a trespass. For example, when a man owed £10, and did not come to pay it at the time appointed, an order went out from the king’s bench to examine and find him out, supposing that he intended to conceal himself, and they punished him for this trespass1. At present an action on contract can come immediately before the king’s bench. In this manner it was that this court extended its power, and, being supreme over all, none could encroach upon it.
The court of exchequer brought in civil causes to be tried immediately by them in the following manner: suppose a man owed a sum of money to the king, which it is the business of the court to take care of, and the man cannot pay unless his debtors first pay him, the court took upon them to sue this other man by what is called the quo minus, that is, by what he is rendered less able to pay the king. As the debts of the king were many, and as the profits of the judges arose from sentence money, which was more or less according to the business of the court, they eagerly grasped at this extension of their power. All the courts endeavoured, by the speediness of their determinations and accuracy of their proceedings, to encourage prosecutors to come before them2.
[50]
In what manner the chancellor came to attain his equitable jurisdiction shall be taken notice of in the next place. After the improvement of arts and commerce, which gave occasion to many law-suits unheard of before, people suffered a great deal by the imperfections of law. Edward III1 found that there were a great many injuries to which no brief nor court statute extended; and therefore the parliament allowed that if a person applied to the clerk of chancery and found there was no brief that could give him any remedy, the clerk should look for some briefs of a similar nature and out of them compose a new one by which the complainer might have redress2. In this manner the chancery prescribed rules to the other courts; but as they appointed the briefs and manner of proceeding, this was putting an end to the affair, for there was no occasion to go to any other court, and the chancery got these affairs into its own hands. There could be no appeal brought from the courts of king’s bench or of common pleas to that of chancery, but they applied to it for what the common law could not redress. The chancellor in this manner obtained the power of judging in all cases of equity, and is applied to in the greater part of civil cases, the chief of which are, first, the specific performance of contracts. By the common law if a person was bound by contract to deliver a piece of ground, and afterwards refused to do it, he was only obliged to pay damages, but not to perform it specifically. The chancery, which was now considered as a court of conscience, enjoined the specific performance of it. Secondly, the chancery gave redress for all incests3 and frauds in trust when the common law could not. As the leaving lands to the church deprived the king of the emoluments arising from [51] them, an act was passed against it. The clergy ordered that they should be left to certain persons who would dispose of them for the benefit of the church, and if they did not perform it, then, as it was a fraud in trust, the chancellor allowed the bishop to see it done. In like manner, when persons in the state of affairs at that time were obliged to alienate their estates to persons that had no concern in them, the chancellor caused them to be restored. Wills, legacies, and things of this sort also fell under the equitable decision of the chancellor.
It will be proper when we are treating of courts to inquire into the origin of juries. In the beginning of the allodial government when the several courts had arrived at a very small degree of improvement, and before they had experience to examine thoroughly into matters, when any person was brought before them on an action depending on his oath, he was obliged to bring twelve compurgators to swear that the oath was just. There are remains of this at present in actions of debt, where, if the person can bring in a certain number of persons to swear that his oath is just, he gains the suit. It is to be observed that the imperfection of this way of trying was one of the great causes that gave origin to the judicial combat. A nobleman, or indeed any man of spirit, who was eluded of his right by a set of perjured fellows, would rather choose to combat it in the field and appeal to the judgement of God than leave his cause to them. Henry II first instituted that the sheriff and a certain number of persons who had opportunity to be best acquainted with the crime should have the whole affair laid before them, and that the person should be judged by their sentence. The law of England, always the friend of liberty, deserves praise in no instance more than in the careful provision of impartial juries. They who are chosen must be near the place where the crime was committed that they may have an opportunity of being acquainted with it. A great part of the jury may [52] be laid aside by the panel1. He can lay aside thirty of their number, and he can challenge them either per capita, that is, any single juryman, or any number of them, if he suspect the sheriff of partiality. There may be many small causes for suspicion of partiality, and of the relevancy of these the court is judge. Nothing can be a greater security for life, liberty, and property than this institution; the judges are men of integrity, quite independent, holding their offices for life but are tied down by the law. The jurymen are your neighbours who are to judge of a fact upon which your life depends. They too can be laid aside for several reasons.
The laws of England with regard to juries are only defective in one point, in which they differ from the laws of Scotland. In England the whole jury must be unanimous, which renders the office of a juryman a very disagreeable service. A case may appear to you more clear than it does to me, and may really be different from what it appears to either of us, and yet there is a necessity for our agreement, and of consequence a necessity that one of us should swear contrary to our conscience. In criminal causes there is little danger, people are generally disposed to favour innocence and to preserve life. But in civil cases people are not so much troubled, they are not so much disposed to favour, and many of them are exceedingly doubtful. People of fashion are not fond of meddling in a jury attended with such inconveniences, and therefore only the meaner sort of people attend the judge. A great man would not choose to be so often called and returned, and perhaps treated in such a manner as no gentleman would choose to be. In this case the law providing for security has done too much. In this country, where unanimity is not required, the service is not so disagreeable. Though a person differ from the majority he may stand by his opinion and is not forced to comply, and the [53] people of the highest rank are willing to be jurors. In the actions which come before the court of chancery no jury is required, and the court of session in Scotland has taken them away in civil causes.
Besides the courts that have been mentioned there were several others erected by the king’s patent. Henry VIII erected three. The court of high commission which sat upon ecclesiastics, the court of star chamber which takes in anything less than death, and the court of wardship which took care of the king’s interest in these emoluments. This last was taken away by Charles II, who accepted a sum for the whole. It is now understood that the king cannot erect a court without consent of parliament. In no other country of Europe is the law so accurate as in England, because it has not been of so long standing. The parliament of Paris was only erected about the time of Henry VIII of England. The British parliament consists of a great number of men, and these of great dignity1. All new courts disdain to follow the rules that were formerly established. All new courts are a great evil, because their power at first is not precisely determined, and therefore their decisions must be loose and inaccurate.
Thus we have considered the origin of government
- 1. Among a nation of savages;
- 2. Among a nation of shepherds;
- 3. The government of small clans with chieftains; the manner in which aristocracies arose; the fall of little republics, conquering or defensive, and, lastly, the different forms of government that arose in Europe after the dissolution of arbitrary government.
[§ 13. Of the little Republics in Europe.]
We shall next consider the origin of the little republics in Europe, and consider the rights of sovereign and subject.
[54]
First, of the origin of these republics. In some countries the provinces which were far from the seat of government sometimes became independent, as was the case in a good part of Germany and France during the time of Charlemagne. Hugh Capet, who was chief justiciary1, got the government into his hands, but took only the title of the King of France. The Pope, by raising disturbances in Germany, for a long time hindered the Emperor Otho from taking possession of Italy. But when he got possession of it, on account of its distance, he could not retain it. Every little town formed itself into a republic, with a council of its own choosing at its head. Some towns in Germany being well fortified, such as Hamburgh, assumed the same privileges, and still in some measure retain2 them. The Italian towns are governed by a hereditary nobility, though the ancient republics were perfectly democratical. In Venice the people freely gave up the government, as they also did in Holland, because they could not support the trouble which it gave them. The Dutch and Swiss republics are formed into a respublica foederata, and on this depends their strength.
We shall make some remarks on the manner of voting in these republics. When there are 100 votes and three candidates, it is possible that the person who is most odious may be elected. If A, B and C be candidates, there may be 34 votes for A, and 33 for B, and as many for C. Thus though there are 66 votes against A, he carries it. This must be still more the case when a criminal is brought before this assembly, for 34 may think him guilty of murder, 33 of manslaughter, and 33 of chance medley, yet he must suffer for murder3. To prevent this, in some of these republics they always bring the question [55]to a simple state. Is he guilty of murder or not? If there be three candidates, they put a previous vote, by which they exclude one of the candidates. In their senates the president never has a deliberative vote, but only a decisive one, because they will allow no member to have two votes. When there is an equality on both sides, nothing can be done, and therefore the business is not rejected, but referred to another meeting.
[§ 14. Of the Rights of Sovereigns.]
We shall now consider what duty is owing to the sovereign, and what is the proper punishment of disobedience. Every attempt to overturn this power is in every nation considered as the greatest crime, and is called high treason. It is to be observed that there is a great difference between treason in monarchies and treason in republics. In the one it is an attempt on the king’s person, and in the other on the liberties of the people, from whence we may see how the maxim of assassination came to be established in republics, and not in monarchies. It is the interest of monarchies that the person in authority be defended, whatever his title or conduct be, and that no person be allowed to enquire into them. The laws of monarchy are therefore unfavourable to the assassination of tyrants. In a republic the definition of a tyrant is quite clear. He is one who deprives the people of their liberty, levies armies and taxes, and puts the citizens to death as he pleases. This man cannot be brought to a court of justice, and therefore assassination is reckoned just and equitable. The present republican governments in Europe, indeed, do not encourage this maxim, because monarchies now set the fashion, and [other] government[s] copy their pattern. According to our present notions Oliver Cromwell’s assassination is most opprobrious, but it would have [56] appeared otherwise when the republics of Greece and Rome set the fashion.
Having thus taken notice of this difference between monarchical and republican governments, we shall next consider the crimes reckoned treason. There are three kinds of treason or attacks upon the essence of government. First, perduellio, or an attempt to subvert the established government by force or rebellion. Secondly, proditio, or the joining of the enemy, delivering up to him forts, hostages, &c., or the refusing to deliver up garrisons, &c., to the government when they demand them. This is called high treason. Thirdly, laesa maiestas, or an insult on the authority of the magistrate, which is not so heinous a crime as the two former. These were the kinds of treason among the Romans. Under the emperors these were blended, and a breach of the smallest, even in so trifling a manner as throwing a stone at the emperor’s statue, was punished with death1. Under Honorius, a conspiracy against any of the emperor’s ministers was high treason2.
The crimes accounted treason by the English law3 are the following. First, killing the king, wishing his death4, or providing arms against him, with every attempt of this kind are punished capitally. The gunpowder plot was never executed, yet the conspirators were put to death. Had they intended only the death of some other person, they would not have been executed. Secondly, corrupting the king’s wife or oldest daughter5, because these are [57] affronts to the king, and may introduce a spurious offspring to the crown. If it be a younger daughter, the crime is not so great. Thirdly, levying a force against the king, aiding his enemies, &c. Fourthly, attempting the life of the chancellor or [judge of] assize when sitting in court; at another time it is only felony. Edward I, however, made the mere wounding of them not treason1. Fifthly, counterfeiting the king’s great or privy seal, which is accounted an usurpation of the government, because by them the acts of government are carried on. Sixthly, counterfeiting of the king’s coin, though this should not properly be treason, because it is no attempt on the essence of government. This crime is no more than forgery, and is usually punished as such2. These were the branches of treason before the reformation. At this period Henry VIII declared himself head of the Church, assumed the sovereignty in ecclesiastical affairs as a part of his prerogative, and established for this purpose the court of high commission to judge of ecclesiastics, which was abolished by Mary and restored by Elizabeth. As there was some danger then from the Popish party, the Catholic religion was considered as influencing the being of government, and therefore it was declared high treason to bring in any bull of the Pope, agnus dei, or whatever might support his authority3, to support popish seminaries4, or conceal [58] popish priests1. This law, however proper then, should now be repealed, as there is no more occasion for it; no notice would now be taken of entertaining a popish priest.
During the civil war and usurpation of Cromwell it became a question how far it is lawful to resist the power of government. The court party believed the king to be absolute, and the popular doctrine was that the king is only a steward, and may be turned out at the pleasure of the people. After the restoration the court party got the better, and the other party became odious. At the Revolution the Stewart family were set aside for excellent reasons, and the succession established in the present family. By this the court party was turned out, and began to influence the dispositions of the people. It was therefore enacted that whoever should speak against the present succession should be guilty of treason2. This is now altogether unnecessary, because the government is now so well established that there is no reason to take notice of those who write or speak against it.
In Scotland the laws were very confused with regard to treason. Prejudicing the people against the king, or the king against the people, were made high treason. But by the Union they are made the same with those of England3. These are the laws of Britain with respect to treason, and they subject the person who breaks them to the highest penalties. He is half hanged, and then his entrails are taken out, he forfeits his estate, his wife’s dowry4, &c., [59] and corrupts his blood, so that his children cannot succeed.
Besides these there are other offences against the crown which do not subject to the pains of high treason, but to those of felony1. First, the making of coin below the standard2 and the exportation of coin3. From the notion that opulence consists in money, the parliament resolved that every one might have bullion coined without any expense of mintage4. Thus coined money was never below the value of bullion, and therefore there was a temptation to melt it down. This occasioned the act declaring this practice felony5. Secondly, any attempt to increase the coin, as by the philosopher’s stone, was made felony6. Thirdly, destroying the king’s armour is also felony7. Fourthly, any attempt against the king’s officers is also felony8, and in general whatever is felony against another person is felony against the king. If his pocket were picked it would be felony against him, as it is against any private gentleman, but the former offences are committed against him as king. There are some other small offences which may be done to the king which do not amount to felony, but incur what is called a praemunire. This is necessary to explain. In the reigns of King John and Henry III, [60] England was entirely under the dominion of the Pope. His legate brought over bulls, and raised contributions as he pleased, and long before the Reformation it was necessary to defend the king’s liberty against the Pope. The king sometimes appointed one to a benefice, and the Pope another, and the Pope’s candidate was often preferred. A law was therefore made forbidding any bull to be brought from Rome, or any appeal to be carried thither, and subjecting every person who refused to ordain the king’s presentee, to the penalties of praemunire regem, i.e. to fortify the king against the Pope1; the penalty was forfeiture of goods and outlawry. After Henry VIII was declared head of the Church by the Pope, it was made a praemunire to attack the king’s prerogative with regard to ecclesiastical matters2.
Beside these there are other offences called misprisions of treason, and are either positive or negative. Positive3 misprision of treason is the not revealing an attempt against the king’s person, his oldest daughter, or the [61] heir of the kingdom. In like manner it is felony if you do not reveal any notice you receive of conspiracies and rebellions. Negative1 misprision is the counterfeiting of foreign coin current in the kingdom, such as Portuguese gold, but it is not felony to counterfeit French or Dutch money, because they are not current here2.
In the last place there are offences against the king called contempts, which are fourfold3. First, contempt of the king’s court or palaces. A riot committed in any of these is a great indignity offered to the sovereign. Riots in courts of justice are also severely punished, because there persons are often provoked, and if the law were not strict they would disturb the court4. Secondly, contempt of the king’s prerogative, such as disobeying the king when lawfully called, going out of the kingdom, when in office, without his leave, refusing to come after a summons under the privy seal, accepting a pension from a foreign prince without the king’s permission5, even in a man of letters. Thirdly, contempt of the king’s person and government (of which many are guilty), as by saying he is indolent or cowardly, that he has broken the coronation oath, or to speak disrespectfully of his ministers6. These are never regarded at present, because the government is so well established that writing and speaking cannot affect it. Fourthly, contempt of the king’s title, by denying it, or preferring the Pretender’s to it, by drinking the Pretender’s health, or refusing the oath of allegiance and abjuration7; all these subject to imprisonment [62] or fining, but not to the penalties of treason, felony, praemunire, nor outlawry.
Having considered the offences of the subject against the sovereign, we shall next treat of the crimes which the sovereign may commit against the subject. But first it is proper to consider who are subjects of a state.
[§ 15. Of Citizenship.]
The laws of different countries vary much with regard to those to whom the right of citizenship belongs. In most of the Swiss republics nothing gives the right of citizenship, but to be born of a citizen. In Rome a family might be peregrina for four or five generations. At Athens no man was a citizen unless both father and mother were Athenians. It is to be observed that the Athenians were particularly sparing in giving the right of citizenship, because it entitled them to very great privileges. Even kings were denied that honour; all they did when they wanted to bestow a favour on a neighbouring king was to free him from taxes on imports. This they did to Amyntas, father of Philip, king of Macedon. As aliens paid higher duties than natives, it was no small privilege to have these removed. After the defeat of the Persians their forces amounted to 25,000 men: their country was well cultivated: many cities in Asia paid them tribute. In consequence of this the people were entitled to attendance on the court of justice, to have their children educated at the public expense, to have certain distributions of money among them, with many other emoluments. If the number of citizens increased, these privileges would not be so valuable, and therefore they were very jealous of it. As whoever comes into a parish in England must give a bond not to be burdensome to it1, so [in] all little [63] republics where the number of freemen are small and election in the hands of a few, citizenship is of great importance, but in a large city such as Rome it was a very small compliment, and accordingly they made whole provinces citizens at once. In Britain one born within the kingdom is under the protection of the laws, can purchase lands, and if of the established religion, can be elected to any office. In great states1 the place of birth makes a citizen, and in small ones the being born of parents who are citizens. In like manner the incapacity of being a citizen is different in different countries. By the old laws of Rome, and of every barbarous nation, the goods of every person who came within their territories were confiscated, and he himself became a slave to the first person who happened upon him. By a law of Pomponius, if he came from a nation at peace with Rome, he was treated as the law prescribed2. In barbarous countries they have but one word to signify a stranger and an enemy. At Rome every stranger was hostis3, as they considered all nations as their enemies, and the person who came from them as a spy. The Litchfield man of war was shipwrecked on the Emperor of Morocco’s dominions, and because we had no league with him, the whole crew were made slaves. Our sovereign so far complied with [64] the custom of the place as to ransom them1. When they2 found the advantage of exporting their own goods, and importing those of others, they would naturally allow those who trafficked with them to be in a state of safety, both with respect to his person and goods, and would allow him an action if injured in either. This is the state of aliens in most of the countries of Europe at present. In Britain an alien cannot purchase nor inherit land property, nor maintain a real action. He cannot make a will because it is the greatest extension of property, and is founded on piety and affection to the dead, which an alien can have but few opportunities of deserving. By a particular statute an alien merchant, but not a tradesman, may have a lease of a house. This arises from a whimsical principle that it would discourage our own tradesmen to allow foreigners to settle among them3. This is the state of aliens in most countries.
In Britain the manner of obtaining citizenship is twofold. First, by letters of denization, which is a part of the king’s prerogative. Secondly, by a bill of naturalization, which is an act of parliament. By the former an alien is capacitated to purchase lands and to transmit them to posterity if subjects of Great Britain, but he cannot inherit, because [65] as the king is heir of aliens he may transfer his own right, but cannot take away the right of the person who ought to succeed. A denizen alien may inherit an estate bequeathed to him, but to be capable of inheriting in all respects, an act of naturalization is necessary, by which he has a right to all the privileges of a freeborn subject. When king William came to the throne, naturalized aliens were made peers. As many Dutch families came over with him, it was natural to suppose that he would favour them with every privilege. The English, offended at this partiality, made an act declaring that there should be no act of parliament for the future by which they should be allowed such emoluments1. As in most countries they are [not] allowed the right of transmitting lands, it was [un]necessary that they should have an action for it. Neither in England nor in Germany are aliens allowed to make a will2. In Saxony there was made a very equitable law that aliens from countries where they were allowed no privileges, should be allowed [66] none among them1. In Rome it was the right of citizens only to make a will.
It is to be observed with respect to aliens, that they are aliens amis, or aliens ennemie2. If a number of the latter should make war upon the king, or injure him, they cannot be prosecuted for high treason, because he is not their lawful sovereign, and they owe no allegiance to him. If the laws of nations do not protect them, they must be dealt with by martial law. Aliens, however, who live in the country, are protected by the laws, and as they thus own allegiance to the king, they may be prosecuted for treason, and punished accordingly. Whatever makes a freeborn subject guilty of treason makes an alien ami guilty of it. An alien ennemie, that is one who comes from a country at war with us, if he give information to his natural sovereign, is also guilty of treason.
[§ 16. Of the Rights of Subjects.]
Having thus considered who are properly the subjects of a state, we come now to treat of the crimes of the sovereign against the subject, or the limitations of his power.
On this branch of public law it is impossible to speak with any degree of precision. The duties of one subject to another are sufficiently ascertained by the laws of every country and the courts of justice, but there are no judges to determine when sovereigns do wrong. To suppose a sovereign subject to judgement, supposes another sovereign. In England it can be exactly ascertained [67] when the king encroaches on the privileges of the people, or they on that of the king, but none can say how far the supreme power of king and parliament may go. In like manner where the absolute power of sovereignty is lodged in a single person, none can tell what he may not do, with accuracy. God is the only judge of sovereigns, and we cannot say how he will determine. All decisions on this subject have been made by the prevailing party, and never coolly by a court of justice, and can give us no light into the subject. Our best notions of it will arise from considering the several powers of government and their progress.
In the beginning of society all the powers of government are exercised precariously. The majority may make war, but cannot force the minority to it, though this power was the first that was exerted absolutely. The judicial power was much longer executed precariously than the federative. In every country the judges once only interposed as mediators, and sometimes the panel had his choice to refer his cause to the judge or to God, by combat, hot water, and, nay, if the sentence of the judge did not please the panel, he might challenge the judge to fight him in the court1. In time, however, it became absolute. The legislative power was absolute whenever it was introduced, but it did not exist in the beginnings of society, it arose from the growth of judicial power. When the judicial power became absolute, the very sight of a judge was terrible, as life, liberty, and property depended on him. Tacitus tells us that Quintilius Varus, having conquered a part of the Germans, wanted to civilize them by erecting courts of justice, but this so irritated them that they massacred him and his whole army2. To a rude [68] people a judge is the most terrible sight in the world. When property was extended, it therefore became necessary to restrain their arbitrary decisions by appointing strict rules which they must follow. Thus the legislative power was introduced as a restraint upon the judicial. In Britain the king has the absolute executive and judicial power. However, the Commons may impeach his ministers, and the judges, whom he appoints, are afterwards independent of him. The legislative power is absolute in the king and parliament. There are, however, certain abuses which no doubt make resistance in some cases lawful, on whatever principle government be founded.
Suppose that government is founded on contract, and that these powers are entrusted to persons who grossly abuse them, it is evident that resistance is lawful, because the original contract is now broken. But we showed before that government was founded on the principles of utility and authority. We also showed that the principle of authority is more prevalent in a monarchy, and that of utility in a democracy, from their frequent attendance on public meetings and courts of justice. In such a government as this last, as the principle of authority is, as it were, proscribed, popular leaders are prevented from acquiring too great power, because they are not allowed to continue in office till they acquire any great ascendency; but, still, there is a respect paid to certain offices, whoever be the person that exercises them. In Britain both principles take place. Whatever be the principle of allegiance, a right of resistance must undoubtedly be lawful, because no authority is altogether unlimited. Absurdity of conduct may deprive an assembly of its influence as well as a private person, an[d] imprudent conduct will take away all sense of authority. The folly and cruelty [69] of the Roman emperors make the impartial reader go along with the conspiracies formed against them.
It is to be observed that the right of resistance is more frequently exerted in absolute monarchies than in any other, because one man is more apt to fall into imprudent measures than a number. In Turkey eight or ten years seldom pass without a change of government. The same degree of ill usage will justify resistance to a senate or body of men. It must be allowed that resistance is in some cases lawful, but it’s excessively difficult to say what an absolute sovereign may do or may not do, and there are different opinions concerning it. Mr. Locke says that when a sovereign raises taxes against the will of the people resistance is lawful1, but there is no country besides England where the people have any vote in the matter. In France the king’s edict is all that is necessary, and even in Britain it is but a very figurative consent that we have, for the number of voters is nothing to that of the people. Exorbitant taxes no doubt justify resistance, for no people will allow the half of their property to be taken from them; but though the highest propriety be not observed, if they have any degree of moderation, people will not complain. No government is quite perfect, but it is better to submit to some inconveniences than make attempts against it.
Some other writers allege that the king cannot alienate any part of his dominions2. This notion is founded on the principle of the original contract, by which indeed, though a people were willing to submit to one government, they will not have one of another’s choosing. This doctrine is, however, groundless. In France and Spain great part of [70] the dominions have been given to the king’s children as a portion without any complaint; when Florida was put into our hands, they never made any opposition. The King of Spain and Czar of Moscovy can even alter the succession as they please. This was in general the case in all feudal jurisdictions, they were divisible1 at the pleasure of the lord. It was but lately that the right of primogeniture took place in the principalities of Germany. It is alleged that the King of France cannot alter the Salic law, by which daughters cannot succeed to the crown. This law was owing to the power of the princes of the blood, who would not allow the succession to go past themselves. But if France had been as destitute of nobility as Britain was at the accession of the present family, the Salic law might have been altered as easily as any other law.
It is hard to determine what a monarch may or may not do. But when the summa potestas is divided as it is in Britain, if the king do anything which ought to be consented to by the parliament, without their permission, they have a right to oppose him. The nature of a parliamentary right supposes that it may be defended by force, else it is no right at all. If the king impose taxes or continue them after the time is expired, he is guilty of breach of privilege. James II attempted some impositions of this sort upon importation. In the petition of right2 it is expressly appointed that the taxes shall not continue a moment after the time determined by act of parliament.
When the parliament saw the crown going to James II, who was a Roman Catholic, they appointed two tests, to wit, an abjuration of the Pope and the oath of supremacy, and that every person within three months after his acceptance of any office should take the sacrament after the form prescribed by the Church of England. King James employed Roman Catholics both in the army and [71] privy council, and besides, appointed persons entirely unqualified to the treasury, and broke in upon the privileges of the Universities. He also assumed a power of dispensing with the law in cases where he himself was no way concerned. Some of the bishops, merely for doing what every British subject has a right to do, to wit, remonstrating against such proceedings, were sent to the Tower. Nothing could more alarm the nation than this attack upon the bishops. One Sharp preached against popery, the religion of the king, upon which the bishop of London was ordered to suspend him, but he only cautioned him against such practices. The king, not pleased with this, created a court of high commission, which had been long abrogated and discharged ever after to be erected, and summoned both the bishop and Sharp to appear before it. The king, perceiving the disgust of the people, and thinking it proceeded from the fear of those possessed of abbey lands, lest they should be taken from them, and from a fear of a change in the religion of the country, he declared that he would grant liberty of conscience to all, and retain every one in the possession of the Church lands. This plainly showed his intention to change the religion of the country, which is the most difficult thing in the world. It is necessary before a religion be changed that the opinions of the people be changed, as was done by Luther, Calvin, John Knox, and others before the Reformation. King James then applied to the army, but found they by no means sympathized with him. He, in return, told them that he would never any more bring down his sentiments to theirs, nor consult them on any occasion1. It was no wonder that by such practices [72] the Revolution was brought about, and the family set aside, for the whole nation was disposed to favour the Prince of Orange. They might justly have passed by the whole family, but they generously dispensed with the rigorous law which corrupts the blood with the forfeiture of the estate, and bestowed the crown on his two Protestant daughters. Their brother, on account of the suspicions of his being a Papist, as he had been educated in that religion, was rejected. The present family, being the nearest Protestant heirs, was by an act of parliament settled in the government, and it was enacted that no prince, unless a Protestant, shall sit on the throne of Britain. Thus King James, on account of his encroachments on the body politic, was with all justice and equity in the world opposed and rejected.
Thus we have considered man as a member of a state.
As ecclesiastics and laymen are two grand divisions of men in a state, under this head too might be considered ecclesiastic law and the respective rights of these two bodies of men. Here too we might consider military law, which arises from considering the state as divided into two bodies, civil and military. But these are foreign to our purpose.
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[§ 1. Husband and Wife.]
We come now to consider man as a member of a family, and in doing this we must consider the threefold relation which subsists in a family. These, to wit, between husband and wife, parent and child, master and servant1.
First of these we shall consider husband and wife. In every species of animals the connexion between the sexes is just as much as is necessary for the propagation and support of the species. Quadrupeds, whenever the female impregnates, have no farther desire for each other; the support of the young is no burden to the female, and there is no occasion for the assistance of the male. Among birds some such thing as marriage seems to take place, they continue the objects of desire to each other, their connexion remains for a considerable time, and they jointly support the young; but whenever the young can shift for themselves all further inclination ceases2. In the human species women by their milk are not capable of providing long for their children. The assistance of the husband is therefore necessary for their sustenance, and this ought to make marriage perpetual3. In countries, however, where Christianity is not established, the husband possesses an [74] unlimited power of divorce, and is not accountable for his conduct. In ancient Rome, though they had the power of doing it, yet it was thought contrary to good manners1. We may observe an utility in this constitution of our nature that children have so long a dependence upon their parents, to bring down their passions to theirs, and thus be trained up at length to become useful members of society. Every child gets this piece of education, even under the most worthless parent.
On this subject it is proposed to consider the duties of each of the two parties during their union, how this union should [be] begun and ended, and what are the particular rights and privileges of each.
The first duty is fidelity of the wife to the husband; breach of chastity is the greatest of offences. Spurious children may be introduced into the family, and come to the succession instead of lawful ones. This real utility, however, is not the proper foundation of the crime. The indignation of the public against the wife arises from their sympathy with the jealousy of the husband, and accordingly they are disposed to resent and punish it. The sentiment of jealousy is not chiefly founded, or rather not at all, upon the idea of a spurious offspring. It is not from the particular act that the jealousy arises, but he considers her infidelity as an entire alienation of that preference to all other persons which she owes him. This is the real idea he has of it, as may appear from the following consideration. The idea we have of a father does not arise from the voluptuous act which gave occasion to our existence, for this idea is partly loathsome, partly ridiculous. The real idea that a son has of a father is the director of his infancy, the supporter of his helplessness, his [75] guardian, pattern and protector. These are the proper filial sentiments. The father’s idea of a son is of one that depends upon him, and was bred up in his house or at his expense, by which connexion there should grow up an affection towards him; but a spurious offspring is disagreeable from the resentment that arises against the mother’s infidelity.
In those countries where the manners of the people are rude and uncultivated, there is no such thing as jealousy, every child that is born is considered as their own. The foundation of jealousy is that delicacy which attends the sentiment of love, and it is more or less in different countries, in proportion to the rudeness of their manners. In general, wherever there is little regard paid to the sex, infidelity is little regarded, and there will be the greatest looseness of manners. Agreeable to this we find that Menelaus expressed his resentment against Paris, not against Helen, and this not for debauching her, but for carrying her away. In the Odyssey she talks before her husband of that action without reserve. In Sparta it was common for them to borrow and lend their wives. When manners became more refined, jealousy began, and rose at length to such a height that wives were shut up, as they are among the Turks at this day. As mankind became more refined, the same fondness which made them shut up women made them allow them liberties. In the latter ages of Greece women were allowed to go anywhere. This same fondness, carried to a high degree, gives as great a licence as when infidelity was disregarded. In no barbarous country is there more licentiousness than in France. Thus we may observe the prejudice of manners, with respect to women, in the different periods of society.
Though there was little or no regard paid to women in the first state of society as objects of pleasure, yet there never was more regard paid them as rational creatures. In North America the women are consulted concerning the [76] carrying on of war, and in every important undertaking1. The respect paid to women in modern times is very small; they are only put to no trouble for spoiling of their beauty. A man will not exempt his friend from a laborious piece of business, but he will spare his mistress. When the infidelity of the wife is considered as an injury to the husband, it is necessary that unmarried women should be laid under restraints, that when married they may be accustomed to them. Hence the origin of punishment for fornication.
We come now to consider how this union is begun. As the duty after marriage is quite different from what it was before, it is necessary that there should be some ceremony at the commencement of it. This differs in different countries, but in general is connected with religion, as it is supposed to make the greatest impression. In the infancy of society, though marriage seemed intended to be perpetual, yet the husband had an unlimited power of divorce, though it was reckoned indecent to exercise it unless for an enormous crime. The reason was that the government durst intermeddle little with private affairs, and far less with matters in private families. For the security of government they endeavoured by all means to strengthen the power of the husband and make him as absolute as possible. In ancient Rome the husband was sovereign lord of life and death in all matters belonging to his own family.
First, by confarreation, a religious ceremony;
Thirdly, by use. If he had lived with her a year and day, she was his by prescription, and he could divorce her.
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The power of divorce extended to the wife after female succession took place. A woman possessed of a great fortune, who lived happily before marriage and had so much in her own power, would not incline to give it all to her husband. The lawyers therefore invented a new kind of marriage in favour of heiresses, which was called the deductio domi, or marriage by contract; certain terms were agreed on between the parties, and then the husband came and carried her home. To prevent prescription taking place, she went away three or four days every year, which, according to the form of the contract, secured her fortune1. Thus the wife became equally independent with the husband, and had equally the power of divorce. As the marriage was founded upon the consent of both parties, it was reasonable that the dissent of either party should dissolve it.
This form of marriage is pretty similar to the present, with this material difference however, that it did not legitimate the children nor preserve the honour of the women2. The Roman form caused great disorders. When the parties separated, which was often the case, they married others, and very often the women went through five or six husbands3. This so corrupted their morals that about the end of the monarchy there was scarce a great man that was not cuckolded. The disorder came to such a height [78]that, after the establishment of Christianity, the power of divorce was restrained unless for certain causes. Among the Scythian nations, which settled in the West of Europe, divorce was taken away altogether. In Burgundy, however, the power of the husband was very great. By a law there, if a man abused his wife he was liable to a fine, but if the wife misbehaved she was put to death.
As in general only flagrant crimes were taken notice of by the civil court, small ones went into the hands of the ecclesiastics, and that first gave occasion to their great power. When the civil court gave no redress for breach of contract, the ecclesiastics punished the offender for perjury, and when any difference happened betwixt man and wife, they made them suffer penance for it. Afterwards the power of divorce was taken away unless for adultery, and when the one was afraid of bodily harm from the other. Even this last was not a perfect divorce, for neither of the parties was allowed to marry again, but only a separation a mensa et toro.
The causes of a perfect divorce, after which they were allowed to marry again, were these three. First, if they were within the degrees of consanguinity, the marriage was made null unless they had a dispensation from the Pope. Secondly, precontract with any other woman. Thirdly, frigidity in a man, and incapacity in a woman. The ecclesiastics brought in other alterations besides these with regard to marriage. It is to be observed that the laws made by men are not altogether favourable to women. They considered the infidelity of the husband and wife were equally punished, he had no more power to divorce than she1. Adultery, saevitia, and metus were considered as causes of separation, but not of divorce.
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The canon law, when it took place, was dictated by ecclesiastics, who on most occasions copied the Roman law, as they were the only persons that understood Latin, and among whom the remains of literature were preserved. At first even the ecclesiastic law required no ceremonies at marriage. As the ceremonies of confarreation and coemption1 had gone into desuetude in the latter times of the Roman law, when the only thing that was required was the deductio domi2; so by the ecclesiastic law for a long time, a contract of any kind made a marriage, whether a contract in praesenti or in futuro. Contract in praesenti is when I say, I take you for a wife, or, I take you for a husband. Contract in futuro is when they say, I will do it. Either of these contracts might be proved either by evidence or by oath, if they declared themselves married persons, or that they were to be so. Pope Innocent III enacted that all marriages should be performed in facie ecclesiae, but though this was considered as the only decent marriage, yet others were often in use and in some cases were valid. If a person was married in futuro,and afterwards in facie ecclesiae, and the first wife made no opposition till after the banns were out, the first marriage was null. If it was contract in praesenti the second was null3. This was the case in England till the late Marriage Act4. If a contract in futuro can be proved, or if the man refuse his oath, the marriage is in some countries considered as valid. The contract in praesenti is everywhere valid, especially if they cohabit afterwards. All these institutions are derived from the canon law, which made the breach of them liable to church censures as ours does.
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An act of parliament only makes a divorce in England, the infidelity of the wife will not do it. In Scotland it is much more easily done. Protestants never carried matters so far as the canon law, for the clergy married themselves. Besides, love, which was formerly a ridiculous passion, became more grave and respectable. As a proof of this, it is worth our observation that no ancient tragedy turned on love, whereas now it is more respectable and influences all the public entertainments. This can be accounted for only by the changes of mankind.
The species of marriage of which we have been treating took place only in Rome and in the Christian countries with a few others, for in many countries they took as many wives as they were able to maintain. This naturally leads us to consider the origin of polygamy. It is to [be] observed that though voluntary divorce be attended with inconveniences, yet it is not altogether contrary to the principle of justice that a man should put away his wife and take another for less reasons than adultery, because they make them quite unhappy together, though either of them might live very well elsewhere. The same is the case with polygamy. If a woman consents to be one of five, or twenty, or more wives, and the law1 allows it, there is no injury done her, she meets with the treatment which she might naturally expect. The ancient Jewish and oriental laws tolerated polygamy, but though it and voluntary divorce be not altogether contrary to justice, it must always be a very bad policy where they are established or allowed.
Polygamy excites the most violent jealousy, by which domestic peace is destroyed. The wives are all rivals and enemies, besides, the children are ill taken care of, and the wife complains that her children are not used as they ought; because she measures the affection of the father by her own, between which there is no proportion, as his2 is divided among forty or fifty children, and hers [81] only among four or five. Where polygamy takes place there must both be a jealousy of love and a jealousy of interest, and consequently a want of tranquillity. It may be said that in the seraglios of the Eastern monarchs there is the greatest peace, but this is owing to the most imperious discipline: when rebels are subdued their humility is remarkable. In Africa we find the most horrid disorders, their discipline not being severe enough. It is the greatest misery to the women that they are entirely shut up and can enjoy no company but that of the eunuchs, which they detest.
The man too who has the seraglio is by no means happy, though apparently so. He too must be jealous, and on account of the inequality betwixt him and them he can have no entertainment at his own house, no opportunity of social improvements; you must never mention his wife to a Turk, she can never be seen by men, not even by her physician, as Tournefort tells us1. This gravity and reserve of the husband must have a bad effect upon the manners of the country. As the men have no trust nor dependence upon each other, they cannot form into parties, and therefore the government must always be arbitrary, of which they have a model in their own houses, where there is little parental and less conjugal affection. Besides all this it tends to depopulate the species, the greater part of men can get no wives, and many of them are castrated to take care of the seraglio. It is indeed alleged that there are more women born than men. Montesquieu says that at Bantam in the East Indies there are ten women born for one man2. Dutch authors say that on the coast of Guinea there are fifty to one. The account from Japan is better attested, where it is said there are eleven women to nine [82] men1. Where this is the case, if the fact be true, it would be an inconvenience if polygamy did not take place.
By strict examination we find that in Europe there is little difference. The general computation is that there are thirteen men to twelve women, or seventeen to sixteen, which, as men are more exposed to dangers than women, makes the number about equal2. Now if there be no difference in Europe, we have reason to conclude that [83] there is not any difference in any other place. The laws of nature are the same everywhere, the laws of gravity and attraction the same, and why not the laws of generation? In some of the fore-mentioned places there may indeed be more women than men. In places where the seat of religion is, and where the court sits, and consequently the opulent live, there must be more women, because the rich only have seraglios, and they purchase the women from other places, so that there is a constant import of women from those countries in which polygamy does not take place.
Polygamy takes place under despotic governments. When a country is conquered by savages, they indulge themselves in all manner of brutality, and this among the rest, as there is no established law to the contrary. It never took place in ancient Carthage or Rome, though it takes place in Turkey. In every country freedom puts out polygamy; there is nothing that free men will less submit to than a monopoly of this kind, but despotism is always favourable to polygamy.
Montesquieu observes still further in favour of polygamy, that in some countries women are marriageable at eight or nine, and are old and withered at twenty1. When they have their beauty they cannot have much understanding, and when it increases their beauty is gone, and consequently they cannot long be agreeable companions, and therefore a husband had need of more than one2. It may be their custom3 indeed to deflower infants, but the fact is not well attested. Cleopatra was [84] thirty-six when taken by Augustus, yet she was with child. Constantia bore a child at fifty-four1. But though the fact were true2, it is not reasonable that polygamy should take place, but only voluntary divorce. If women were only useful ten or twelve years, it might be reasonable to take another, but not a number at the same time.
Wherever polygamy takes place there can be no hereditary nobility. It is difficult to make the right of primogeniture take place where there are so many wives, several of whom bring forth nearly at the same time. Where there are so many children, they cannot all have the affection of the parent, and it is only by this means that any of them can establish themselves. Where the children are numerous affection diminishes. I may regard four or five children who are connected with my friend, but if there are a hundred in the same relation they are little regarded. Now hereditary nobility is the great security of the people’s liberty. Being in every corner of the country, whenever the subjects are oppressed they fly to him as their head. In Eastern countries there is no such thing. Every man is almost an upstart, and the royal family alone is regarded. The families of the Bashaws after their death mix with the vulgar. Wherever there is a hereditary nobility, the country cannot easily be conquered, or rather not at all. They may be beat once or twice, but they still recover under their natural heads. Eastern countries, for this very reason that they want these, make feeble resistance against foreign invaders.
Polygamy is exceedingly hurtful to the populousness [85] of a nation. An hundred women married to an hundred men will have more children than the same number married to two or three. It may indeed be said that in China, about the mouth of the Ganges, and in Egypt, they are populous notwithstanding polygamy. In those countries there are regulations regarding populousness, and some other circumstances contribute to it, such as the remarkable fertility of the soil.
Thus we see marriage is of two kinds, viz. polygamy or monogamy, of which the latter is of three kinds: first, when the husband can divorce the wife at pleasure; secondly, when the power of divorce is equally in their power1; and thirdly, when it is in the power of the civil magistrate entirely. Where polygamy is allowed, the wife is entirely in the power of the husband, he may divorce her or dispose of her as he pleases.
The laws concerning monogamy differ according to the species of it. That kind where the contract or agreement is indissoluble but by the civil magistrate, is the most convenient. By this indeed nothing but what is very disagreeable to society is the occasion of divorce. But it is always better that the marriage tie should be too strait, than that it should be too loose. The unlimited power of divorce in the latter ages of the Republic2 was productive of the most disorderly consequences, the prevention of which sufficiently atones for any hardships it may occasion. When both parties have the power of divorce, they can have no mutual trust nor dependence upon each other, but their interests are quite separate.
We come now to consider what interest the husband has in the property of the wife, or the wife in that of the husband, according to the different species of marriage. Where polygamy takes place, the wife, being in absolute [86] slavery, has no interest at all in the husband’s property, and is only entitled to an aliment after his death. When the husband only has the power of divorce, the property of the wife becomes his as much as his own. When they have the power of divorce in the hands of both, whatever portion the wife brings is secured, and the husband can have no more ado with it but to manage it. When he dies, the wife has no more share of the husband’s property than was agreed upon by the contract. In the species of monogamy when divorce is in the hand of the magistrate, the right of the husband extends not so far as formerly; but that of the wife extends further, as she is more independent of him than in any other species. If a wife has a land estate, the husband receives the rents, which are at his absolute disposal. If the wife die and leave a son, the husband is the natural guardian of it, and is entitled to a courtesy of the life-rent of his wife’s estate. In England the husband can dispose of all [his wife’s] chattels real in his lifetime, but if he do not dispose of them in his lifetime, they go to the wife, not to the heir at his death. All [her] chattels personal he can dispose of as he pleases. Debts on bonds are the same with chattels real. If the husband demands payment of the debt, he can dispose of the money as he pleases, but if he do not claim it in his lifetime, it goes to his wife after his death. If the wife die first, all chattels real and debts on bond go to her relations, if the husband have not already disposed of them. If the husband die first, the wife has a third part of his land estate1, whether there be children or not. This is considered as her dowry2. In England she has a complete third of all3, but in Scotland she has only a third of all [87] bills, money, moveables, and bygone rents; bonds bearing interest go to the children. In Scotland the husband can sell his wife’s land with her own consent, but she must first be examined before a court, and declare that it was with her own consent, and then her executors1 cannot claim it. Both in Scotland and in England, no bond granted by the wife is binding upon the husband unless it be granted for the necessaries of life. In this respect she is considered as a servant, for if a servant buys provision in his name, he is obliged to pay [for] them. In Scotland the husband may have a writ of inhibition to prevent the wife from contracting debts in his name. In England any verbal notice that he will not be accountable for them is sufficient. If they be separated he is not even obliged to pay [for] what she purchases for her aliment.
We come now to consider what persons are capable of contracting marriage. Betwixt ascendants and descendants marriage is prohibited in infinitum. Nothing can be more shocking to nature than for a mother to marry her son. By this the mother becomes inferior to her son, and on account of the inequality of their ages the ends of marriage are seldom accomplished. Therefore it is never tolerated unless where superstition takes place. In like manner a marriage between a father and a daughter is incestuous. It is, however, to be observed that this is not so contrary to nature as the former, because the father still is superior when he is husband, and accordingly we find that many barbarous nations tolerated this2. But still it is unnatural that the father, the guardian and instructor of the daughter, should turn her lover and marry her. Besides, a mother can never look agreeably on a daughter who will probably supply her place. Nothing can be more destructive of domestic happiness. For the same reasons, the uncle and [88] niece, or the aunt and nephew, never marry. At Rome and Carthage indeed, they used sometimes to give a dispensation to the uncle and niece, but never to the aunt and nephew.
The marriage of collaterals, such as brother and sister, seems to have been prohibited chiefly from political views, because they are bred up together, and would be in danger of mutual corruption, unless properly restrained. The same reason lay against a marriage between cousins in those ages when they were brought up in the same house. At Athens a man might marry his sister consanguinea but not his sister uteral1. Many eminent men married in this manner, thus Cimon married his father’s daughter Elpinice2. By the law of England the wife of the deceased grand-uncle can marry her husband’s grand-nephew, it being above four degrees3.
Affinity by the Christian law is considered as the same with consanguinity. The wife’s sister is considered as the husband’s sister, and the wife’s aunt as the husband’s aunt. It is to be observed that the rules of affinity are rather rules of police than of nature, for it is not contrary to nature that a man should marry his wife’s sister. In many countries of the East Indies this kind of marriage takes place, because they think that the wife’s sister will probably make the best mother-in-law to her sister’s children. But it may be answered to this that it entirely hinders all intercourse between the sister and her brother-in-law’s family, and that it might be expected that she would answer this purpose by living in his house unmarried with no children of her own. The canon and [89] civil law reckoned affinity1differently. The civil law counted brothers and sisters as one degree removed from the common stock, and cousins german two. The canon law counted how far the persons were asunder. Brothers were two degrees, the father being one, and either of the brothers another. In the same manner cousins german were four degrees. The canon counted both sides from the stock, and the civil law only one2. When the one says the second degree was prohibited from marriage, and the other the fourth, they both mean cousins german. The Pope often dispensed with these laws, and by that means extended his authority and promoted his interest.
Having now considered all the different species of marriage, we come to consider the effects of the want of it. The effect of marriage is to legitimate the children. We must therefore consider the difference of legitimate and illegitimate. Legitimation gives the children inheritable blood, so that they can succeed to their father and his relations. An illegitimate child has no inheritable blood, and therefore cannot succeed to his father intestato, because it is unknown who is his father, nor to his mother, because no child succeeds that is not lawfully begotten. As a bastard can succeed to nobody, so nobody can succeed to him3, as he is not related to any human creature. If he die intestate without children, his wife has one half of his moveables and one third of his land estate, and the rest goes to the king; but if he has children, the wife has a third of all4. The king is still considered as ultimus heres. In Scotland there is a further inconvenience attending it. As the king is the heir of bastards, a bastard [90] is incapable of making a testament, because it would cut the king out of his right. The king can, however, grant him letters of legitimation which make him capable of testating, because, as the right of succession belongs to the king, he may dispose of it as he pleases. However, this, or anything less than an act of parliament, cannot give him inheritable blood, but an act of the whole legislature can do anything.
First, per subsequens matrimonium, or marrying the woman that had the children. As concubines were numerous, it was enacted that whoever married his concubine legitimated her children. This Justinian afterwards made perpetual.
Secondly, per oblationem curiae. When the children were willing to execute certain parish offices, as deacons2, &c., though this entitled them only to succeed to the father, and not to his relations.
Thirdly, per adrogationem. As for example, one Roman could adopt the son of another, and the son accept of him as a father. They had it in their power to adrogate any free man. Bastards were considered as free men, and if they were willing to accept might be adrogated as such3.
Fourthly, per [re]scriptum principis, which was much the same with letters of legitimation.
Fifthly, per testamentum, by which they probably succeeded only to their father’s estate.
The canon law introduced the subsequens matrimonium into all countries but England. The English clergy were [91] then1 unpopular by joining with the king against the barons, and therefore in England the subsequens matrimonium never could legitimate. That subsequens matrimonium might legitimate, the canon law made some restrictions which did not take place at Rome. Bastards of adulterous persons could not succeed, those, to wit, of a woman who has a husband alive, or of a concubine to a man whose wife is alive, though they should marry afterwards. Incestuous children also could not succeed, unless legitimated by a dispensation from the Pope.
Thus we have seen the disabilities and incapacities of illegitimate children, which can only have an effect where monogamy prevails; and indeed, these alone hinder polygamy from gaining ground in any country, because, if bastards were allowed to succeed, men would hardly subject themselves to the inconveniences of lawful marriage. To have a wife entirely in their power, and to take others when they please, would be more convenient.
[§ 2. Parent and Child.]
We come now to consider the history of parentage, being the second relation in which we were to consider man as a member of a family. The authority of the father over his children, both with respect to liberty and property, was at first absolute. He was at liberty to choose whether he would bring up his children or not, and it was accounted no injustice to refuse to do it. The law hinders the doing injuries to others, but there can be no fixed laws for acts of benevolence. All that the law prohibited was immediately putting them to death; but he might expose them if he pleased. Even with us a father is not obliged to ransom a son who is taken captive, but may do it or not [92] as he pleases. In the same manner anciently a father might choose whether he would ransom his son from starving, from wild beasts, and the like. Though some regulations were made in Rome concerning this, they were never well kept, and the practice was not abolished till the establishment of Christianity. In China, at present, where polygamy takes place, they are often obliged to expose them and generally drown them1. As the father had it entirely in his power to bring up his son or not, he had an absolute jurisdiction over him if he did bring him up. At Rome the father had the ius vitae et necis et vendendi. Besides, whatever the son acquired belonged to the father, and if he married, his children were considered as members of the grandfather’s family. This power of the father over his son was very soon lessened. The son was connected with the mother’s relations, and the uncle, whom on some occasions he was to succeed, would naturally look after the person who was to be his heir. By a law of Numa Pompilius, if a son was married, it was no longer in the father’s power to sell him2. The twelve tables indeed mention this privilege of the father, but it is probable it was only those who married without their father’s consent. In like manner the ius vitae et necis went out. The father only put in execution the laws of his country for capital crimes. He could take the power out of the hands of the magistrate, and condemn his son to punishment himself, but he could not free his son if he was accused by the laws of his country. This shows that the patria potestas was not altogether absolute. This power of the father weakened by degrees, and at last went out altogether. The father only pronounced the sentence as it was dictated to him by the civil magistrate, as he himself might have gone wrong in some forms, and by that means rendered [93] the whole null. It is much the same with the gentlemen in this country, who have it in their power to seize the goods of their tenants when in debt, without any form of law. As they are ignorant how it ought to be done, they are obliged as well as others to apply for authority to the civil court, though they are vested with the power of doing it themselves.
The power of the father with respect to the property of the son soon went out likewise. We find that very early, by a law of Marcianus, the fathers were obliged to provide proper wives for their sons, and to bestow proper portions upon [them]; and if they refused, the government was to see it done1. This shows that the property after marriage must have been their own. The law seems to have2 been made because the wife brought a fortune along with her, and therefore it was but reasonable the husband should also have some property independent of his father. It must therefore only have been the property of unmarried children over which the parent had any power, and this is not unreasonable. The authority of the father was not arbitrary at Rome, for we often find men accused there for not taking proper care of their children, which could hardly have been the case if they could have put them to death.
Julius Caesar, and after him Augustus, were the first that gave to sons property independent of their fathers. At first they kept as their own whatever they took in war, or the peculium castrense, afterwards whatever they acquired by the liberal and mechanic arts. This was extended by Adrian and afterwards by Justinian to everything unless what they got from their fathers. All donations and legacies were entirely at their own disposal. We also find the power of the father in disinheriting them limited. There were only certain cases in which it was in his power. [94] After the fall of the Roman Empire the power of the father over the son, as well as over the wife, was softened. The father came to have over the son, while he continued in the family with him, an authority much the same with that a father has among us, that, to wit, of taking care of his morals. But when out of the family he was not so immediately concerned about him. The father has this particular privilege with respect to his son, that he can become tutor to him without surety, and is not accountable, as every other tutor is, for negligence and omission. This is the natural authority the father has over the son. The father is obliged to bring up his children, and the children, in case of old age or infirmity, to maintain the father.
[§ 3. Master and Servant.]
We now come to consider the history of law with regard to masters and servants, which was the third relation in which we proposed to consider family. We have found that the same principle which gave the husband authority over the wife, also gave the father authority over the son. As the power of the husband was softened by means of his wife’s friends, with whom she was connected, and to whom she could complain, so that of the father was softened by the same means. But it was not so with the servants; they had nobody to whom they could complain, they had no connexion with any person, and having none to take their part they necessarily fell into a state of slavery. Accordingly we find that the master had the power of life and death over them, quite different from the ius vitae et necis over the wife and children, which was restricted to criminal cases: the power over the servants was perfectly arbitrary. Besides, as the master had the disposal of his liberty, a slave could have no property. Whatever he has or can acquire belongs to his master. No contract of the slave could bind the master, however, unless the laws found a tacit consent [95] of the master implied. A slave can only acquire for his master. If I promised a slave £10, I am obliged to pay it to the master. But besides these disadvantages, there are many others, to which the ancient Greek and Roman slaves as well as our negroes were liable, though less attended to.
First. They were hindered from marriage. They may cohabit with a woman, but cannot marry, because the union between two slaves subsists no longer than the master pleases. If the female slave does not breed, he may give her to another or sell her. Among our slaves in the West Indies there is no such thing as a lasting union, the female slaves are all prostitutes, and suffer no degradation by it.
Second. But slavery is attended with still greater evils than these; for a slave who is a polytheist is properly under the protection of no religion. He has no God any more than liberty and property. The polytheistic religion consists of a great number of local deities. Every place has its own divinity. The slaves belong not to the country, and therefore its gods are no way concerned about them. Besides, a heathen can never approach a deity empty handed. The slaves had nothing to offer, and therefore could expect no favour from them. Those slaves who were employed about the temples were the only ones who could have any title to the protection of the gods. The master prayed for them, but it was in the same manner that he prayed for his cattle. Every person is superstitious in proportion to the precariousness of his life, liberty, or property, and to their ignorance. Gamesters and savages are remarkably so. It is then a very great hardship that a slave, who is addicted to superstition from both these causes, should be deprived of that which is so well fitted to soothe the natural feelings of the human breast. The religion therefore which discovered one God who governed all things, would naturally be very acceptable to slaves. Accordingly we find that the Jewish religion, which, though [96]well fitted for defending itself, is, of all others, the worst adapted to the making of converts, because they could never be of the stock of Abraham, from whom the Messiah was to come, could not be on a level with the Jews, but only proselytes of the gate, and were obliged to abstain from many kinds of food, with all these disadvantages made great progress among the Roman slaves. When Christianity was introduced, which was attended with none of these disadvantages, it made the most rapid progress among the slaves.
We are apt to imagine that slavery is quite extirpated, because we know nothing of it in this part of the world; but even at present it is almost universal. A small part of the West of Europe is the only portion of the globe that is free from it, and is nothing in comparison with the vast continents where it still prevails. We shall endeavour to show how it was abolished in this quarter, and for what reasons it has continued in other parts, and probably will continue.
It is to be observed that slavery takes place in all societies at their beginning, and proceeds from that tyrannic disposition which may almost be said to be natural to mankind. Whatever form of government was established, it was a part of its constitution that slavery should be continued. In a free government the members would never make a law so hurtful to their interest, as they might think the abolishing of slavery would be1. In [a] monarchy there is a better chance for its being abolished, because one single person is lawgiver, and the law will not extend to him, nor diminish his power, though it may diminish that of his vassals. In a despotic government slaves may be better treated than in a free government, where every law is made by their masters, who will never pass anything prejudicial to themselves. [97] A monarch is more ready to be influenced to do something humanely for them. When Augustus was visiting Vedius Pollio, one of the slaves, who had accidentally broken a platter, threw himself down before Augustus imploring his protection, that he might not be cut in pieces and thrown into the fish pond. Augustus was so shocked with this, that he immediately manumitted all Pollio’s slaves, though Pollio, no doubt, relished not the behaviour of his guest1. In the reigns of Adrian and Antoninus, when monarchy had taken place, there were several laws made in favour of slaves, but never one in the times of the Republic. Slavery, then, may be gradually softened under a monarch, but not entirely abolished, because no one person whatever can have so much authority as to take away at once the most considerable part of the nation’s property, because this would occasion a general insurrection.
In an opulent country the slaves are always ill-treated, because the number of slaves exceeds the number of free men, and it requires the most rigid discipline to keep them in order. If a free man was killed in a house all the slaves [98] were put to death1. Several authors tell us that in the night-time at Rome, nothing was to be heard but the cries of slaves whom their masters were punishing2. Ovid tells us that the slave who kept the gate was chained to it3, and the slaves who manured the ground were chained together lest they should run away4; and what was more cruel, when an old slave was incapable for work he was turned out to die on an island, near the city5, kept for that purpose. Slavery is more tolerable in a barbarous than in a civilized society. In an uncultivated country the poverty of the people makes the number of the slaves anyone can keep quite inconsiderable, and therefore their discipline will not be so rigid as when they are numerous6. Besides, in a barbarous country, the master labours himself as well as the slave, and therefore they are more nearly on a level. In the early periods of Rome the slave worked with his master and ate with him, and the only punishment in case of misbehaviour was the carrying a cross stick through the [99] town or village. In Jamaica and Barbadoes, where slaves are numerous and objects of jealousy, punishments even for slight offences are very shocking; but in North America they are treated with the greatest mildness and humanity1.
Thus we have shown that slavery is more severe in proportion to the culture of society. Freedom and opulence contribute to the misery of the slaves. The perfection of freedom is their greatest bondage; and, as they are the most numerous part of mankind, no human2 person will wish for liberty in a country where this institution is established.
It is almost needless to prove that slavery is a bad institution even for free men. A free man who works for day’s wages will work far more in proportion than a slave in proportion to the expense that is necessary for maintaining and bringing him up3. In ancient Italy an estate managed by slaves, in the most fertile country, yielded to the master only one-sixth of the produce, whereas a landlord even in our barren country receives a third, and the tenants live much better. Slaves cultivate only for themselves; the surplus goes to the master, and therefore they are careless about cultivating the ground to the best advantage. A free man keeps as his own whatever is above his rent, and therefore has a motive to industry. Our colonies would be much better cultivated by free men. That slavery is a disadvantage appears from the state of colliers and salters in our own country. They have indeed privileges which slaves have not. Their property after maintenance is their own, they cannot be sold but along with the work, they enjoy marriage and religion, but they have not their liberty altogether, and it would certainly be an advantage [100] to the master that they were free. The common wages of a day labourer is between six and eight pence, that of a collier is half-a-crown. If they were free their prices would fall. At Newcastle the wages exceed not tenpence or a shilling, yet colliers often leave our coal-works, where they have half-a-crown a day, and run there, though they have less wages, where they have liberty.
There is still one inconvenience more that attends slavery, that it diminishes the number of free men even to a degree beyond imagination, for every slave takes up the room of a free man. The inequality of fortune seemed at first a misfortune, and laws were made against it. £10 per annum is reckoned the necessary expense of one man. A landed gentleman who has £10,000 per annum spends what would maintain a thousand men. At first sight we are apt to conceive him a monster who eats up the food of so many, but if we attend to it he is really useful, and he eats or wears no more than the rest. £10 serves him too, and his £10,000 maintains a thousand people who are employed in refining his £10 by an infinity of ways so as to make it worth the whole. This gives room for all kinds of manufactures. When slaves are employed to sift, as it were, this £10 out of the £10,000, one must be a tailor, another a weaver, a third a smith, and thus each takes up a free man’s place.
We come now to account for the abolition of slavery in this part of the world. The slaves in this and the neighbouring countries were those who cultivated the ground, and were what was called adscripti glebae, and could only be sold along with the land. As they had nothing but their maintenance for their labour, the ground was but badly cultivated. To remedy this disadvantage, tenants by steelbow were introduced1. They had no stock themselves, and therefore the landlord gave them cattle and the implements for ploughing, which they resigned at the [101] end of the lease. At harvest the crop was equally divided between the landlord and tenant. This was the first species of free tenants, who were plainly emancipated villains. After this custom had continued for a long time the tenants picked up so much as enabled them to make a bargain with the landlord to give him a certain sum for a lease of so many years; and whatever the ground should produce they would take their venture. This is plainly an advantage to the landlord; the ground every year is better cultivated, he is at no expense, and the half of the product was better to the tenants than any sum they would give1. By the feudal law the lord had an absolute sway over his vassals. In peace he was the administrator of justice, and they were obliged to follow him in war. When government became a little better established, the sovereign did all he could to lessen this influence, which on some occasions was dangerous to himself, and hindered people from applying to him for justice. As therefore the ancient villains were tenants at will, were obliged to perform certain duties to their master, and were entirely at his disposal, a law was made taking away all their burdens but that of being tenants at will, and at last their privilege was extended and they became copyholders.
Another cause of the abolition of slavery was the influence of the clergy, but by no means the spirit of Christianity, for our planters are all Christians. Whatever diminished the power of the nobles over their inferiors increased the power of the ecclesiastics. As the clergy are generally more in favour with the common people than the nobility, they would do all they could to have their privileges extended, especially as they might have expectations of reaping benefit by it. Accordingly we [102] find that Pope Innocent III encouraged all landlords to emancipate their slaves1. Thus the influence of the clergy, combining with that of the king, hastened the abolition of slavery in the West of Europe. Agreeable to this we find that, in countries where neither the king nor the church were very powerful, slavery still prevails. In Bohemia, Hungary, and those countries where the sovereign is elective, and consequently never could have great authority, and besides, where the church never had any great influence, servitude still remains, because the court is by no means powerful enough to emancipate the slaves of the nobility.
To show by what means slaves are acquired, to consider the state of domestic servants in our own country, together with mentioning a certain particular state of families, will be all that is to be said on this head respecting man as a member of a family.
Slaves may be acquired five different ways. First, captives in war, in almost every country, are slaves. If the conqueror does not kill them, he has a right to make them slaves. Secondly, as captives become slaves, having nobody to deliver them, so their children become slaves also. Thirdly, persons guilty of certain crimes were made slaves, sometimes to the person injured, sometimes to the public. Fourthly, debtors in the ancient state of the Roman Republic were made slaves. If they could not pay their debt it was thought reasonable they should work for it. This still takes place in all countries where slavery is established. Fifthly, there is a sort of voluntary slavery when an indigent citizen sells himself to be the slave of another person. When a person sells himself to another for any sum, by the laws of slavery this very sum becomes the property of the person who bought [103] him. But when a person was in debt and obliged to become a slave for it, he would not perhaps choose to be his creditor’s slave for fear of ill-usage, and would therefore sell himself to another person, on condition that he would pay his debt. The citizens of Rome were often in debt, and by that means became entirely dependent upon their superiors. Many of them had no means of subsistence but what they received from candidates for their votes, and, as this was by no means sufficient for that purpose, they often borrowed from them to whom they gave their votes, who were ready enough to lend that they might secure them entirely to their interest. By this means they could not give their vote to any other person unless he paid what they owed to their creditors, which few would be willing to do, as for the most part they owed more than the value of their votes.
In the middle age of the Republic these two last methods of acquiring slaves were prohibited by express laws, the first by what was called cessio bonorum, and the latter by a law prohibiting any free man to sell himself.
The slavery in the West Indies took place contrary to law. When that country was conquered by Spain, Isabella and Ferdinand were at the greatest pains to prevent the Indians from falling into a state of servitude, their intention being to make settlements, to trade with them, and to instruct them. But Columbus and Cortez were far from the law, and obeyed not their orders, but reduced them to slavery, which in a manner instituted itself among them.
We come now to consider the state of servants. A negro in this country is a [free] man. If you have a negro servant stolen from you, you can have no action for the price, but only for damages sustained by the loss of your servant. In like manner if a negro is killed, the person who does it is guilty of murder; but though a negro servant is entitled to the privileges of a free man while [104] here, you can oblige him to return to America and keep him as formerly. It is not from Christianity, but from the laws of this country that he enjoys freedom, because there is no such thing as slavery among us.
The greatest dependents among us are menial servants (inter moenia) who are bound from one term to another. They have almost the same privileges with their master, liberty, wages, &c. The master has a right to correct his servant moderately, and if he should die under his correction it is not murder, unless it was done with an offensive weapon, or with forethought and without provocation. A servant can acquire property for his master either when he acts by his express authority, or when a tacit consent is implied. If a servant buys or sells goods in his master’s name, his master has room for an action in case of non-payment or of non-delivery. As there is a peculiar connexion between master and servant, they can be vindicated in many cases where any other person would be found guilty. If either master or servant kill any other person in defence of each other, it is justifiable homicide. If a master dies before the term, the executors are obliged to pay up the whole of the servant’s wages and to maintain him besides.
Apprentices are much in the same way with servants, only with this difference, that the master receives a fee with the apprentice, and is obliged to teach him a trade; and if he refuse to do it he may be pursued for damages and loss of time.
[§ 4. Guardian and Ward.]
We come now to consider the particular state of families. When a father dies leaving his children young, it is necessary that they should be taken care of. Even in the times of exposition, when an infant was some time kept, it was thought cruel to put him to death: the child was [105] destitute, there were then no hospitals or places of charity: it must therefore be put into the custody of some person. The nearest relation by the father’s side was he whom the law fixed upon. In an early age the maintenance of the child was all that was to be taken care of, for there were no estates to manage, and the mother went back to her father’s family. This guardianship terminated when the child was about thirteen or fourteen years of age, at which time it was capable in that age to shift for itself. But when men came to be possessed of estates, though he might be supposed capable of shifting for himself about that age, yet he could not be capable of managing an estate. Now it became necessary to retain him in pupillarity more than fourteen years. By praetorian law, at that age he was allowed to choose his guardians or curators. A curator can do nothing without the consent of the pupil; a guardian can act without his consent, but is accountable to his pupil for whatever he does during his minority. At first lunatics and idiots were almost the only persons who had guardians; and, on account of its being disgraceful to have one, it was generally declined. Afterwards the law made invalid all acts of the pupil, till he was twenty-one, without the consent of his curators. As the nearest relation by the father’s side is often next heir, it was reckoned improper to trust the person of the son with him. The English law carried this so far that if an estate was left to the son in [his] father’s lifetime he was not trusted with him. By our law the care of an estate is entrusted to the next heir, as he will probably take best care of it; and the heir to a more remote relation, who will take best care of him, as he cannot be benefited by his death.
[§ 5. Domestic Offences and their Punishments.]
We will now mention some offences in families with their peculiar punishments. Infidelity of the wife to the [106] husband is punished with the greatest ignominy. In the husband, it never was punished with death, nor in the woman unless where the greatest jealousy prevails. It would be thought ridiculous in our country to bring a woman to the scaffold for adultery. Forcible marriages and rapes are generally punished with death1. Bigamy, as it dishonours the former wife, is punished capitally2. As there is the closest connexion betwixt persons in a family, if the wife kills3 the husband, it is considered as a sort of petty treason, and the punishment by the English law is burning alive4. The same is the punishment if a servant kills his master or makes an attempt upon him5. Thus we have finished all that is to be said with regard to man, considered as a member of a family.
[107]
[§ 1. First way of acquiring Property: Occupation.]
We formerly explained the nature of rights, and divided them into natural and acquired. The former need no explanation; the latter are divided into real and personal. Real rights are property, servitude, pledge, and exclusive privilege. We are first to treat of property.
Property is acquired five ways. First, by occupation, or the taking possession of what formerly belonged to nobody. Second, by accession, when a man has a right to one thing in consequence of another, as of a horse’s shoes along with the horse. Third, by prescription, which is a right to a thing belonging to another arising from long and uninterrupted possession. Fourth, by succession to our ancestors or any other person, whether by a will or without one. Fifth, by voluntary transference, when one man delivers over his right to another.
We shall first treat of occupation, the laws of which vary according to the periods of human society. The four stages of society are hunting, pasturage, farming, and commerce. If a number of persons were shipwrecked on a desert island their first sustenance would be from the fruits which the soil naturally produced, and the wild beasts which they could kill. As these could not at all times be sufficient, they came at last to tame some of the wild beasts that they might always have them at hand. In process of time even these would [108] not be sufficient; and as they saw the earth naturally produce considerable quantities of vegetables of its own accord, they would think of cultivating it so that it might produce more of them. Hence agriculture, which requires a good deal of refinement before it could become the prevailing employment of a country. There is only one exception to this order, to wit, some North American nations cultivate a little piece of ground, though they have no notion of keeping flocks. The age of commerce naturally succeeds that of agriculture. As men could now confine themselves to one species of labour, they would naturally exchange the surplus of their own commodity for that of another of which they stood in need. According to these stages occupation must vary. Occupation seems to be well founded when the spectator can go along with my possession of the object, and approve me when I defend my possession by force. If I have gathered some wild fruit, it will appear reasonable to the spectator that I should dispose of it as I please.
The first thing that requires notice in occupation among hunters is what constitutes it, and when it begins, whether it be on the discovery of the wild beast or after it is actually in possession. Lawyers have varied on this head, some give a part to the person who has formerly wounded a wild beast, though [he] have given up the chase, and others do not. All agree that it is a breach of property to break in on the chase of a wild beast which another has started, though some are of opinion that if another should wound the beast in its flight he is entitled to a share, as he rendered the taking of it more easy upon the whole1. Among savages property begins and ends with possession, and they seem scarce to have any idea [109] of anything as their own which is not about their own bodies.
Among shepherds the idea of property is further extended. Not only what they carry about with them, but also what they have deposited in their hovels, is their own. They consider their cattle as their own while they have a habit of returning to them1. When the generality of beasts are occupied, they consider them as their own even after they have lost the habit of returning home, and they may be claimed for a certain time after they have strayed. But property receives its greatest extension from agriculture. When it first became necessary to cultivate the earth, no person had any property in it, and the little plot which was dressed near their hovels would be common to the whole village, and the fruits would be equally divided among the individuals. There are the remains of a common land property in our own country at this day. In many places there is a piece of ground belonging equally to several persons, and after harvest, cattle are, in many places, allowed to feed where they please. Private property in land never begins till a division be made from common agreement, which is generally when cities begin to be built, as every one would choose that his house, which is a permanent object, should be entirely his own2. Moveable property may be occupied in the very first beginnings of society, but lands cannot be occupied without an actual division. An Arab or a Tartar will drive his flocks over an immense country without supposing a single grain of sand in it his own3. By the laws of many countries there are some things, however, that cannot be occupied by any private person. Treasure and derelict goods, by the laws of Britain, belong to the king. This arises from that natural influence of superiors [110] which draws everything to itself that it can without a violation of the most manifest rules of justice. In like manner seas and rivers cannot be occupied by any private person: unless [it is] particularly specified in your charter, you cannot take large fishes in a river running through your own estate1. A sea surrounded by several nations cannot be occupied by any one, but all must have a part of the jurisdiction, but any nation may hinder another from fishing in its bays, or approaching its coasts with vessels of war.
[§ 2. Second way of acquiring Property: Accession.]
The right of accession is not so much founded in its utility as in the impropriety of not joining it to that object on which it has a dependence. The milk of a cow I have purchased may not be of great value, but it is very improper that another person should have a right to bring up his calf upon it. The most important accessions are in land property. Land property is founded on division or an assignation by the society to a particular person of a right to sow and plant a certain piece of ground. In consequence of this right he must also have a right to whatever it produces, trees, fruit, minerals, &c. Alluvions made by any river naturally belong to the proprietor of the adjacent territory; but when the additions are very large, as is often the case in low countries, the government claims them, and the proprietor of the adjacent estate must purchase it before he possess it2.
The principal dispute concerning accession is, when does the principal belong to me, and the accession to another, or, if they be mixed, to whom does the whole belong? It is a maxim in law that no person be a gainer [111] by another’s loss1. If a man build a house by mistake upon my ground, though the materials be his, it is but reasonable that I should have the house, or be indemnified for my loss. In general the accession follows the principal, though in some cases, as where the workmanship is of more value than the materials, substantia cedet formae. The lawyers were, however, unwilling directly to contradict their general and established maxim, and therefore evaded it by giving the principal to the proprietor of the accession when it became a new species, that is, when it received a new form and a new name. This, however, was liable to exceptions. A picture and the board on which it was painted were in Latin of the same species; each was a tabula, and therefore the picture by this amendment still belonged to the proprietor of an insignificant board. The most general rule with regard to accessions is this, when the thing can be reduced to its primitive form without lessening its value or without any great loss to the proprietor of the accession, the proprietor of the principal may justly claim it, but when this cannot be done, the law justly favours the proprietor of the accession, and obliges him only to content the original proprietor for his property.
[§ 3. Third way of acquiring Property: Prescription.]
Prescription is founded on the supposed attachment of the possessor to what he has long been possessed of, and the supposed detachment of affection in the old possessor to what has been long out of his possession. There are four things requisite to form a right by prescription. First, bona fides, for if a person be sensible that his right to a thing is bad, it is no injury to deprive him of it, and [112] the indifferent spectator can easily go along with the depriving him of the possession. Second, iustus titulus, by which is not meant a title just in all respects, for this is of itself sufficient without anything else, but a iustus titulus signifies some reasonable foundation that the person has to think a thing his own, such as [a] charter of some kind. If he claims a right without any such title, no impartial spectator can enter into his sentiments. Third, uninterrupted possession is also necessary to prescription, for if the property have often been claimed of him, the former possessor has not derelinquished his right. Fourth, the time is only to be reckoned when there was a person to claim the property; and therefore the longest uninterrupted possession when the proprietor was a minor, a lunatic, or in banishment, can give no right.
A iustus titulus is a proof of bona fides, and bona fides is requisite to a iustus titulus. By the Roman law, bona fides was only required at the first taking possession, and, though afterwards you found a fault in your title, prescription took place. Nature has fixed no period for prescription, and accordingly it varies according to the stability of property in a country. At Rome, [im]moveables once prescribed in two years, but afterwards more was required1. In our country a feudal lord, who continually had claims upon his neighbour, could scarce be brought to admit any law of this nature. He was willing to revive a claim though as old as the days of Noah, and when at last they fixed on a period, they made it as long as possible, to wit, forty years. Among the Romans, it is to [be] observed, that if anyone’s possession was interrupted during the time required for prescription, by an enemy coming into the country, he had to begin anew again. By [113] the English law nothing can interrupt prescription but a claim of the old possessor. Kings seldom ever allow their claims to prescribe1, at least they account no length of uninterrupted possession sufficient to do it. However, immemorial possession will ever carry this along with it.
[§ 4. Fourth way of acquiring Property: Succession.]
Succession is either legal or testamentary. By legal succession is meant that the law should distribute the goods of the deceased to those [to] whom it is to be presumed the person himself would have chosen that they should be given, according to some lawyers2. But this supposes that testamentary succession, or a distribution of the goods according to the will of the deceased, was previous to legal succession, which is contrary to experience. In a rude period a man had scarce the full property of his goods during his lifetime, and therefore it cannot be supposed that then he should have had a power to dispose of them after his death. In all nations the relations of the dead person succeeded long before there was any such thing as a testament. The twelve tables at Rome, and the laws of Solon at Athens, seem first to have introduced testamentary succession3; but long before this there was legal succession in both countries. The claim of the heir of blood is always thought the preferable one, but this claim is never founded on the presumed will of the deceased. If we consider succession in the earliest times, we shall find that it is more founded on the connexion of goods than of persons4. As the father and sons lived [114] together, and were joint acquirers of any property they had, when the father died the children had a joint right to the goods, not so much on account of their relation to the father as on account of the labour they had bestowed on acquiring them. The mother and the children would therefore continue in possession. Among the Romans the wife was considered as a daughter, and had her share accordingly. If any of the children were settled out of the family or were emancipated, they had no share in the succession1, because they ceased to co-operate with the rest in acquiring the goods. It may be observed that when families in this manner lived together it was necessary to prohibit marriages of cousins. When men’s2 sons and grandsons lived in the same house, if all succeeded equally it was called successio secundum capita, but if the grandson succeeded only to his father’s part it was secundum stirpes. If a man had three sons who were all dead, but the oldest had left behind him one son, the second two, and [the] third three, by the former rule, on the death of their grandfather, each would have a sixth; but by the latter, the son of the oldest would have a third alone, the two sons of the second a third between them, and the three sons of the third a third among them. The grandsons were as it were the representatives of their father. The right of representation is the same with the successio secundum stirpes. Among the Romans the right of representation was introduced in favour of the strong, and in prejudice of the weak, but in Britain [it] is the contrary3.
Among the Romans a son could not succeed to the mother when she died, because, as she was considered [115] as a daughter of the family, everything she had belonged to the husband; if the husband died first, the wife shared with her children, and then went home to her father’s house, and succeeded anew to her father. But in times of more refinement under the emperors, the mother could succeed to the son, and the son to the mother1. Anciently, when a son died, no person succeeded to him, because he and everything he had belonged to his father. Caesar first made a law that a son might possess as his own whatever he got in war, or acquired by the liberal arts2.
Three classes of men may succeed, ascendants, descendants, and collaterals, as those in an upper line may succeed to those in a lower, those in a lower to those in an upper line, or those of the same line to one another. Collateral succession at first extended only to the nearest in blood3, and if he refused it the goods belonged to the public4, but afterwards the praetor extended it to the seventh in blood5. When a brother died and another succeeded, it was in consequence of their connexion with the father, who is the common stock, and therefore succession of ascendants must have been prior to that of collaterals. But the right of descendants is stronger than either of these, because the son’s claim on the father is evidently more strong than that of the father on the son. The principles of succession then in moveables are founded on the community of goods which took place anciently in families.
The different state of families in our country makes a considerable difference betwixt our6 law and that of the Romans. The wife is among us a much more considerable person than a daughter, and accordingly succeeds to more. [116] When the husband dies, the goods are supposed to be divided into three equal parts, one of which is supposed to belong to the deceased husband, one to the wife and one to the children: there is however this difference, that the husband can dispose of his part by testament, which the wife cannot. A forisfamiliated son is not in the same condition with an emancipated son among the Romans. He can succeed with his brothers; only if he has got a portion he must bring it into the common stock at his father’s death. Grandchildren do not succeed in place of their deceased father, as among the Romans. The English law, however, admits of representation, and it prefers ascendants, if males, to collaterals.
We come now to treat of indivisible inheritance, which was introduced by the feudal law. When the nations that conquered the Roman Empire settled in the West of Europe, an inequality of fortune necessarily ensued. As the great had no way of spending their fortunes but by hospitality, they necessarily acquired prodigious influence over their vassals1. They gave out their lands merely as a maintenance to their dependents; and it is observable that the Saxon word farm signifies victuals2.
The chieftains, from their influence, were the sole administrators of justice in their own territories. It was the interest of government to authorize this jurisdiction, as it was the only method of preserving peace, and as the superior was the leader both in peace and war. So lately as in the year 1745 this power remained in the Highlands of Scotland, and some gentlemen could bring several hundreds of men into the field3. As these lords had no other way to dispose of their lands, they gave some of them as munera,which were revocable at their pleasure, and [117] others they gave as beneficia, which continued during life and returned to the lord after their decease1.
The benefices of the clergy seem to have been on this foundation and have retained the name. By this means the lords secured the fidelity of their vassals. As benefices were for life, the property of them naturally came to be extended to the son of the deceased tenant, and by degrees the tenures became hereditary and were called feudal; thus the tenant became more independent. When any chieftain died and left his son a minor, the king appointed a leader to the vassals during the minority, and appropriated the profits and emoluments arising from the lands to his own use. When a female succeeded, the lord had the power of disposing of her in marriage, as it was reasonable that he should name the husband who was to be his own vassal. As the lord was guardian of the heir male, it was also thought unreasonable that he should marry without his consent. As the feudal lord possessed the lands during a minority, before the minor could recover his estate, he was obliged to pay what is called a relief. This was introduced by the court of the king or lord, before which the minor was obliged to swear fealty before he could recover his estate. He was also obliged to promise homage to his superior before he could enter on possession. Thus they held their lands of the superior for military service, homage, fealty, wardship, marriage, relief, &c. Allodial estates were free from all such services; but as it was for security of property to hold of some great man who could protect the proprietor from violence, the generality of estates became feudal. For the same reason men possessed of great estates paid feu and swore fealty to the sovereign2.
It appears from this that it must have been a very difficult matter to secure property, especially if it was [118] small, in those early times, and therefore nothing could have a worse consequence than the division of estates. The consequences of dividing the kingdom of France were sufficiently experienced, and the case would have been still worse in private estates. However, on account of the opposition from the rest of the sons, it was long before the right of primogeniture or the indivisibility of estates could be introduced, and in Germany it did not fully take place before the last century; but as the circumstances necessarily required it, estates were at last made indivisible, and since a single person was to be preferred, the oldest son would naturally be the person. This legal preference must be given for some quality that is altogether indisputable. If it were to be given to wisdom or valour, there might be great disputes, but among brothers there can be [no] contest who is the oldest. In the beginnings of society age itself is very much respected; and to this day, among the Tartars, the king is not succeeded by his son, but by that one of the royal family who is oldest.
Primogeniture, when introduced, would naturally occasion succession by representation for the following reason: the younger brothers at first would think it hard that their older brother should be preferred to them, and if he died they would still think it harder that his son, an infant, should come in before them; accordingly in many places this has been disputed in single combat1. Bruce and Balliol disputed on this account. According to our notions, Balliol had the best right, for he was descended from the oldest daughter, though Bruce was a step nearer the common stock. The difficulty of introducing this at first gave rise to a new species of succession, by which, when a father died, his estate went to his eldest son, but if he died while his children [119] were minors, or if he died while his father was alive, his brother, not his sons, succeeded. This was attended with one inconvenience, that on the death of the youngest his sons were preferred to those of the other brothers. By the Roman law a grandson succeeded only to his father’s part: he might succeed as a son, but not as an oldest son. The brothers naturally thought that they were nearer the father than any grandson he could have; but as this was a hardship to the brother’s claim, so it was also a hardship to cut off the reasonable expectation which the grandson had if his father had lived. This last circumstance after[wards] gave occasion to lineal succession. When this difficulty is got over there is little dispute about collateral succession. In feudal lordships a woman could not succeed, as she was incapable of performing military services; but they could succeed to lands where there was required any other kind of service1. Of fiefs there are two kinds, masculine and feminine. France, to the crown of which no woman can succeed, is an instance of the former, and England of the latter.
There are some niceties whimsical enough in the Scotch law with regard to succession of collaterals. If the second brother has an estate and dies, it goes to the third and not to the oldest, who is supposed to have been sufficiently provided for. Conquest2 on the contrary ascends, but it does not go to the oldest, but to the immediately older brother. By the English law the old brother excludes the whole blood from one half of the estate by conquest, in other countries the preference is not so great3.
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We must observe that the right of primogeniture hinders agriculture1. If the whole estate were divided among the sons, each one would improve his own part better than one can improve the whole; besides, tenants never cultivate a farm so well as if it were their own property. Primogeniture is also hurtful to the family, for, while it provides for one, it suffers all the rest in a few generations to be reduced to beggary2. In succession to a monarchy, however, it has one evident advantage, that it prevents all dangerous rivalships among the brothers.
There are some other kinds of succession that take place, or have taken place in several countries. Thus in some countries the youngest son succeeds to the father. There is something like this among our tenants to this day: the older sons as they grow up are provided for, and the youngest, remaining with the father, succeeds to him.
So much for legal succession. We come next to testamentary. It is to be observed that there is no extension of property so great as this, and therefore it was long before it could be introduced; it was very natural to give a man a right to dispose of his property while he lived, but a testament supposes him to dispose of a right when, properly speaking, he can have none himself. He cannot be said to transfer his right, for the heir has no right in consequence of the testament till after the testator himself have none. Puffendorf whimsically accounts for this from the immortality of the soul3. At Rome the right of making testaments was introduced gradually. At first it was only allowed, and that too after the consent [121] of the fellow citizens was asked and obtained, to childless people. This was much the same with adopting children1. When a person died and wanted to leave his estate to a son in exile, he would naturally request his neighbours not to take it from him after his own death. This request would be regarded, not so much on account of its being his will, as from a kind of piety for the dead. We naturally find a pleasure in remembering the last words of a friend and in executing his last injunctions, the solemnity of the occasion deeply impresses the mind; besides, we enter as it were into his dead body, and conceive what our living souls would feel if they were joined with his body, and how much we would be distressed to see our last injunctions not performed2. Such sentiments naturally inclined men to extend property a little farther than a man’s lifetime.
This seems to have been the foundation of testamentary succession. It was a sort of impiety not to comply with the father’s desire, though it was no injury to deprive the heir of the estate, as there was no law established in his favour, and as his being in exile cut off all reasonable expectation of succeeding. The injury is conceived to be done to the dead person, as we enter into what would be his sentiments were he to live again. It is to be observed that this practice is a considerable refinement in humanity, and never was practised in a rude nation. Before the twelve tables no Roman had a right to make a will3. Our Saxon ancestors had no right to dispose of their lands by testament4, and in the history of the Old Testament we hear of no such practice. Piety for the dead could take [122] place only with regard to the immediate successor, and therefore at first the right of making testaments extended no further, unless in case the person in whose favour it was made should refuse to succeed, in which case another might be appointed. This was a further extent of the right. Again, if a man died and left his sister’s1 son heir to him, that the estate might not go to foreign relations, the testator was allowed to say that if the pupil die at a certain age, the estate shall go to such another person. This was called pupillar substitution2. Thus property was still further extended.
The greatest of all extensions of property is that by entails. To give a man power over his property after his death is very considerable, but it is nothing to an extension of this power to the end of the world. In the beginnings of society the state of families is very different from what it is at present. As the wife was subject to the husband, and at the best only on the footing of a daughter, she seldom made any addition to the husband’s estate unless by her own industry; but when female succession took place, and women came to be possessed of fortunes, they would not marry without a previous capitulation by which they insured themselves of good usage, and stipulated that some part of their fortune should go to their relations after their death. By this arose a new species of marriage from agreement which rendered the parties equally independent3. This great alteration in domestic affairs would naturally at first be complained of, and, as the ultimate cause of it was the succession of females, they would endeavour to prevent their opulence. On this account a law was made at Rome bringing matters to their ancient footing, called the Voconian law. To elude this law a fide[i] commissum was invented, by which, when [123] a man had a mind to leave his estate to a person whom the law would not allow, [he left it to someone else] and took his solemn promise that he would transfer it to the person for whom he intended it. Augustus made a law obliging the trustee always to restore it, and appointed a [fidei-]commissary praetor for that purpose1. The person to2 whom the estate was left was called heres fiduciarius, and the person to whom it was to be restored was called fide[i] commissarius: thus property was extended beyond the first successor, and when this step was gained they easily advanced further and introduced entails.
Entails were first introduced into the modern law by the ecclesiastics, whose education made them acquainted with the Roman customs3. As they were the preachers of this doctrine, they naturally became the explainers and executors of wills till Theodosius and Valentinian4 took it from them. In England William the Conqueror restored it to the ecclesiastics5.
By the customs of our country6 a man, if he leave a wife and children, can dispose only of a third by testament; and if he leave a wife without children, only a half. Lands after the introduction of the feudal system could only be disposed [of] by testament in the same way with military services, by the consent of the superior. Originally in England there were no entails by will, but by [124] tenure. A man held an estate for himself and his heirs, but if he had no heirs he could not alienate it, it returned to the superior. But if he had heirs he could alienate it, and thus the lord was deprived of his right of reversion. A law1 was afterwards made to secure this.
Upon the whole nothing can be more absurd than perpetual entails. In them the principle of testamentary succession can by no means take place. Piety to the dead can only take place when their memory is fresh in the minds of men: a power to dispose of estates for ever is manifestly absurd. The earth and the fullness of it belongs to every generation, and the preceding one can have no right to bind it up from posterity2; such extension of property is quite unnatural. The insensible progress of entails was owing to their not knowing how far the right of the dead might extend, if they had any at all. The utmost extent of entails should be to those who are alive at the person’s death, for he can have no affection to those who are unborn. Entails are disadvantageous to the improvement of the country, and those lands where they have never taken place are always best cultivated: heirs of entailed estates have it not in their view to cultivate lands, and often they are not able to do it. A man who buys land has this entirely in view, and in general the new purchasers are the best cultivators.
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[§ 5. Fifth way of acquiring Property: Voluntary Transference.]
In voluntary transference two things are required: first, a declaration of the intention both of the person who transfers, and of him to whom it is transferred: second, the actual delivery of the thing. In most cases the first of these is not binding without the latter, because there is no right without possession. If a man indeed have borrowed a thing and afterwards purchase it, there is no need of delivery, for it is already in his possession. Before possession you can have no right to the thing, though you may have a right to make the man keep his promise or contract. If I buy a horse from a man, and before delivery he sell him to a third person, I cannot demand the horse from the possessor, but only from the person who sold him. But if he has been delivered I can claim him from any person. Property therefore cannot be transferred without tradition or delivery. Grotius indeed justly observes that in the transference of a pledge there is no need of delivery, because in this case the thing is already in the man’s possession1. In France, if a man declare his purpose to make a donation, and die before the delivery, the donation goes to the heir. This was also a custom among the Wisigoths. In transferring the property of lands and other large objects, what gives possession is not so easy to determine. As there cannot be an actual delivery, in our country a symbolical delivery is used; an ear or sheaf of corn signifies the whole field, a stone and turf, the estate to the centre of the earth, and the keys of the door, the house. By the Scotch law, if there be a transference of several estates, the purchaser must be infeft in each. By the English law infeftment in one [126] serves for all1 when done in presence of the county court2. In Scotland it must be done on the land: it is enough in England if it be done in view of it. Besides delivery a charter or writing, showing on what terms the transference was made, is also requisite for security. Till the custom was abolished by a late statute, no vassal or possessor had a right of alienating his estate without the consent of the superior3. As he held it for military service, it was requisite that the estate should be resigned to the superior, who resigned it to the purchaser, as it was proper that his vassal should be of his own choosing. Afterwards, however, it became necessary to accept of creditors, and this was often used as a handle to elude the law. The seller gave a bond for a sum of borrowed money without any mention that it was a sale, by which means the lands were adjudged to the creditor, and the lord was obliged to accept of him as his vassal. In like manner, as the tenant was liable to oppression from a new superior, the lord could not dispose of his estate without consent of his vassal. If therefore either of them alienated any part of their estates without the other’s consent, his right was forfeited.
The duty of vassals to their lords continued longer in Scotland than in England, which may be accounted for from the difference of their government, for that [of] England all along favoured democracy, and that of Scotland aristocracy. After society was fully established, there was no occasion for mutual consent, because the tenant was protected by law, whatever the lord was.
In the time of the civil wars4 a new sort of delivery took place. When a person transferred his estate to another [127] for his own use it was not affected by forfeiture; the person to whom it was transferred was considered as the bailiff, and took possession in the other’s name.
[§ 6. Of Servitudes.]
The second species of real rights is servitudes or burdens which one man has on the property of another. These rights were at first personal, as they were entered into by a contract between the persons. It is necessary that I should have a road to the market town; if a man’s estate lie between me and it, I must bargain with him for the privilege of a road through it. This contract produces only a personal right, though I should bind him not to sell this estate without the burden; but here was an inconveniency, for, if the land were sold and the new proprietor refused the road, I could not sue him on a personal right upon the former proprietor. Before I can come at the new purchaser, I must pursue the person from whom I had the right, who must pursue him to whom he sold it. If the land has gone through several hands this is very tedious and inconvenient. The law, to remedy this, made servitudes real rights, demandable a quocumque possessore.
Servitudes were rusticae, such as the right of a road to the town, or to the river, and of feeding so many cows on another man’s pasture grounds, or urbanae, such as the right of leaning the beams of my house on your gable, the right of obliging him who is proprietor of the under-story to make his wall strong enough to support mine, and the like. These are all naturally personal rights and are only made real by lawyers. Life rents on estates and many other things are also servitudes, and are properly personal. Feudal burdens were only persons’ rights, and therefore every new vassal must renew his homage and the promise of fealty.
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In the beginning of the feudal law, if the proprietor did not perform his duty in every article he forfeited his feu; in like manner, if the tenant encroached on his lord’s grounds, what he had feued returned to the superior. The right of the vassal is founded on the charter of the superior, and every article of it must be fulfilled, and every new possessor must renew the obligation. When tenants became independent and had a real property, they were said to have the dominium directum, not the dominium utile1.
[§ 7. Of Pledges and Mortgages.]
Pledges and mortgages are certain securities for the payment of debts. At first they could not be claimed as real rights, though afterwards the law considered them as such. Pledges properly regard moveable subjects, and mortgages immoveable; if a pledge be not redeemed at a certain time, it is forfeited. As people in bad circumstances are naturally slothful, the negligence of debtors among the Romans gave occasion to the lex commissaria, by which the creditor was empowered to seize the pledge, and return the overplus if there was any. By the English law, if no day be named, the pledge falls to the pawntaker on the death of the pawner2. In immoveables, lands are mortgaged but not delivered, and in case of failure they are forfeited. The Roman law and ours are much the same on this head. If payment be not made within some few months after demand, the creditor adjudges the land for the whole sum and the penalty incurred; but his property is not secure without long possession, for the proprietor has a power of redeeming it within a reasonable time; but, as upon redemption much trouble must be [129]occasioned in examining old accounts and the like, the law1 has made twenty years the stated time in England for redeeming mortgages.
Hypothecs are another kind of pledges really arising from contract, but made real rights by the civil law. By them anciently the landlord was empowered to detain the furniture and whole stock of the tenant if he turned bankrupt, and could claim them a quocumque possessore. This arose from the practice of keeping tenants by steel-bow, by which the whole stock in the farm was the landlord’s. At present the landlord has only a right of preference, and we have not so many hypothecs as the Romans had.
All pledges are naturally personal rights, and are only made real by the civil law.
[§ 8. Of Exclusive Privileges.]
Exclusive privileges are the last division of real rights. Among these is the right of inheritance, which is not a creature of the civil law, but arises from nature. The heir, previous to any other person, has a privilege of demanding what belonged to the deceased, and after he is admitted heir it is his real property. Again, if a person start a wild beast, he has an exclusive privilege of pursuing, and whatever person comes in upon the chase is liable to punishment2 because he breaks in upon his exclusive privilege. In the year 1701 an English man-of-war engaged with a French merchant fleet under convoy, which was just about to fall into their hands, when a Scotch privateer came and carried off the prize. A lawsuit commenced and the Scotch privateer was declared guilty of breach of property, but upon strict inquiry we shall find that it was only breach of privilege3. Though these and some other exclusive [130]privileges arise from nature, they are generally the creatures of the civil law. Such are monopolies and all privileges of corporations, which, though they might once be conducive to the interest of the country, are now prejudicial to it. The riches of a country consist in the plenty and cheapness of provisions, but their effect is to make everything dear. When a number of butchers have the sole privilege of selling meat, they may agree to make the price what they please, and we must buy from them whether it be good or bad. Even this privilege is not of advantage to the butchers themselves, because the other trades are also formed into corporations, and if they sell beef dear they must buy bread dear. But the great loss is to the public, to whom all things are rendered less comeatable, and all sorts of work worse done; towns are not well inhabited, and the suburbs are increased. The privilege, however, of vending a new book or a new machine for fourteen years has not so bad a tendency, it is a proper and adequate reward for merit. A right to servitudes and exclusive privileges, it is to be observed, may be acquired by prescription.
So much for the different kinds of real rights: we proceed now to personal rights, which arise either from contract, quasi-contract, or delinquency.
[§ 9.] Of Contract.
That obligation to performance which arises from contract is founded on the reasonable expectation produced [131] by a promise, which considerably differs from a mere declaration of intention. Though I say I have a mind to do such a thing for you, yet on account of some occurrences do not do it, I am not guilty of breach of promise. A promise is a declaration of your desire that the person for whom you promise should depend on you for the performance of it. Of consequence the promise produces an obligation, and the breach of it is an injury.
Breach of contract is naturally the slightest of all injuries, because we naturally depend more on what we possess than what is in the hands of others. A man robbed of five pounds thinks himself much more injured than if he had lost five pounds by a contract. Accordingly in rude ages crimes of all kinds, except those that disturb the public peace, are slightly punished, and society is far advanced before a contract can sustain action or the breach of it be redressed. The causes of this were the little importance of contracts in those times, and the uncertainty of language.
The first contracts that sustained action would be those where the damage done was very great, and where there could be no doubt but the person once intended to perform. Accordingly among the ancients promises entered into with great solemnity first sustained action. Among them no stipulation could be made unless the contractors were personally present, and no promissory note in writing was binding. As no promises by the Roman law sustained action without a stipulation, so by the English a consideration or cause for the promise was at first necessary to make it obligatory. It was thought contrary to good manners to insist on a promise: if a man promised with his daughter a certain sum, there is a consideration, and therefore he was obliged to perform it; but if he promised it with any other man’s daughter it was sine causa, and, unless she was a relation, could not sustain action. If I made you a promise it did not sustain action, but [132] if I again promised not to forget my former promise, the latter promise was obligatory, and the former was the consideration that made it so1.
By the civil law the first promises that sustained action were those entered into in presence of a court where there could be no doubt of the intention, and accordingly recognizance of every promise was taken before some court. A recognizance is when a debtor comes before a court with the creditor, and acknowledges that he owes him a certain sum; a copy of this acknowledgment was given to the creditor and another lodged in the hands of the clerk, and whenever the creditor produced this, if it was found to correspond to the other, he might pursue for his money. Afterwards a recognizance before the magistrate of a staple town served the purpose2.
The next contracts that sustained action were the contractus reales, or those which were entered into by the delivery of a thing to be returned itself, or in species, or in value. These are of four kinds, the mutuum, commodatum, depositum and pignus3.
The mutuum is when I lend anything to be returned in value, as money. This soon sustained action.
Commodatum is when the thing itself is to be restored, as a borrowed horse.
Depositum is when a thing is committed to another’s care but not to his use.
Pignus is a security for debt.
All these sustained action before the consensual contracts, which are also four, to wit, buying and selling, letting [133] and hiring, partnership, and commission. In buying, if the contract be not fulfilled, you lose your earnest money. Letting and hiring once comprehended leases, day’s wages, building, and almost everything with regard to society. If the contract of commission was performed gratuitously it could not at first sustain any action, but if a reward was given, it was nearly the same with the commodatum. If a small price be paid for the loan of a thing it becomes letting and hiring. The mutuumdoes not infer interest, and in a bond, unless the interest be specified, it will carry none.
Besides these there was in the Roman law what was called a pactum nudum, when there was a bare promise without any consideration, which produced an exception or defence against the action of the pursuer1. As contracts deprive men of that liberty which every man wishes to enjoy, a very small defence set them free. Originally no contracts were sued before any court but the ecclesiastic, but they came gradually to civil courts2. The canon3 law, which judged from principles of honour and virtue, obliged men to perform even those promises that were made gratuitously. This was imitated by the civil law; and by our law if a promise be clearly proven, he who promises must perform it. In general the law gave only action for damages till the court of chancery was introduced. It is indeed the natural idea of [a] court to redress injuries, and accordingly if a person refused to perform his contract he was only obliged to pay the loss which the other had sustained; but the court of chancery forced the person to a performance of the agreement.
Nothing can be more different than the present and ancient state of contracts. Execrations and the most [134] solemn ceremonies were scarce thought sufficient to secure the performance of a contract; drinking blood and water mixed, bleeding one another, promising before the altar, breaking a straw, and a number of other ceremonies to impress the mind, were invented. At present almost anything will make a contract obligatory.
There are some questions concerning contracts much agitated by lawyers, especially one in the case when the coin happens to be debased1. [If] I borrow £100 when the coin is 4 oz. [to] the pound, and it be afterwards debased to 2 oz., whether should I pay £100 of the new coin or £200? When the government makes any alteration in the coin it is to answer some urgent necessity. In 1705 the crown of France had a demand for ten million, and could raise only five2. They cried up the coin and paid the ten with five. As the government allows private persons to pay with the new coin, the injury is not great. The debasement of the coin cheapens for some time all commodities and provisions, as all are paid in the new coin, and therefore the uses of money may be served by the new as well as the old coin3.
[§ 10. Of Quasi-Contract.]
Quasi-contract is founded on the duty of restitution. If you find a watch on the way, you are obliged to restore it by the right of property, because a man loses not property with possession. But if you and I balance accounts, and you pay me a sum which both think due, but you afterwards find you did not owe that sum, how [135] will you claim it? You cannot ask it as your property, for you alienated that sum, nor can you claim it by contract, for there never was one made between us1, yet it is evident that I am a gainer by your loss, and therefore restitution is due.
In the same manner if a man was called away by a sudden order of the state without leaving an attorney to manage a law suit that he had going on, and a friend undertakes this office without commission, as the defence is necessary, and the undertaking it prudent, restitution of his expenses are due. On the same principle were founded the actiones contrariae of the Roman law. If you lent me a horse which had cost me extraordinary expenses, by the contract commodate you could redemand your horse in the same [state] in which you lent him, but I could claim my extraordinary expenses by an actio contraria.The same principle takes place in many other cases. If a person borrows money, and gets three of his acquaintances sureties for him, jointly and severally, and if he turn bankrupt, the creditor pursues the ablest surety, who has a claim by the duty of restitution on the other two for their thirds. The Scotch law carries this still farther. If a bankrupt had two estates, and two creditors A and B: A has a security on both estates, B has security only on the best: A has a liberty of drawing his money from either estate he pleases, and draws from that on which B has his security. As B in this case is cut out, the law obliges Ato give up his security on the other estate to B. The same was the case in the Roman law with regard to tutory.
[§ 11. Of Delinquency.]
We come now to the third kind of personal rights, those to wit, ex delicto.
Delicts are of two kinds, as they arise ex dolo when [136] there is a blameable intention, or ex culpawhen they are done through a culpable negligence.
Injury naturally excites the resentment of the spectator, and the punishment of the offender is reasonable as far as the indifferent spectator can go along with it. This is the natural measure of punishment. It is to be observed that our first approbation of punishment is not founded upon the regard to public utility which is commonly taken to be the foundation of it. It is our sympathy with the resentment of the sufferer which is the real principle. That it cannot be utility is manifest from the following example. Wool in England was conceived to be the source of public opulence, and it was made a capital crime to export that commodity1. Yet though wool was exported as formerly and men were convinced that the practice was pernicious, no jury, no evidence, could be got against the offenders. The exportation of wool is naturally no crime, and men could not be brought to consider it as punishable with death2. In the same manner, if a sentinel be put to death for leaving his post, though the punishment be just and the injury that might have ensued be very great, yet mankind can never enter into this punishment as if he had been a thief or a robber.
Resentment not only prompts to punishment, but points out the manner of it. Our resentment is not gratified unless the offender be punished for the particular offence done ourselves, and unless he be made sensible that it is for that action. A crime is always the violation of some right, natural or acquired, real or personal. The non-performance of a contract indeed [137] is not a crime, unless it be through some fraudulent intention.
The greatest crime that can be done against any person is murder, of which the natural punishment is death, not as a compensation, but as a reasonable retaliation. In every civilized nation death has been the punishment of the murderer, but in barbarous nations a pecuniary compensation was accepted of, because then government was weak, and durst not meddle in the quarrels of individuals unless in the way of mediation. In the age of hunters particularly there was little more than the name of authority, and a man of superior influence can do no more than persuade the parties to an agreement. When one man killed another, the whole society met and advised the one party to give, and the other to take, a compensation. In America when one member of a family kills another, the society does not intermeddle with them, as this cannot hurt the peace of the society; they only take notice of it when one family attacks another1. It was long before the government could call a man before them and tell him what he must do, because it was long before people would submit to such absolute authority.
In the laws of all nations we have the remains of this ancient state of weakness. When government became more powerful, the murderer was not only obliged to make a compensation to the relations of the slain, but likewise to the public, who were put to the trouble of lending him their protection, on that occasion, against the revenge of those who were concerned. This was the state of criminal law among the Germans at the declension of the Roman Empire. The Germans were much farther advanced than the Americans at this day. Though they seldom punished with death, yet they seemed to make the punishment in some measure proportioned to the crime. A price was set [138] on every person according to his station. There was one price paid for killing the king, and another for killing a slave. The compensation was proportioned to the dignity of the person and of his relations. What was paid to the prince for interposition was increased and diminished in the same proportion. It was a higher fine to kill a man belonging to a lord than one belonging to a little baron. To disturb the king’s peace subjected to a greater fine than to disturb the peace of a baron or lord. If the injurer refused to pay the compensation he was left to the resentment of the injured, and if he was not able to pay it, he was obliged to implore the assistance of his friends. As the compensation was not adequate to the offence, the government, after it acquired strength, took this additional compensation to itself as the price of the offender’s freedom. From this the sovereign acquired the right of pardoning criminals, for naturally he has no more right to pardon a crime than to discharge an unpaid debt.
Anciently a crime was considered in two lights, as committed against the family injured and against the peace. The government had the exclusive right of punishing those who had disturbed the peace and killed any of the king’s vassals. The compensation to the government was afterwards changed into a capital punishment. After the king’s pardon, the offender was free, and the relation had no right to pursue him. In England the offender can be punished for the relation as well as for the king. When an appeal1 is made to the king, he cannot pardon, but appeals are seldom or never used, as it is difficult to bring them about. If a man was murdered, nobody but the wife could pursue for an appeal, or, if she was accessory, the legal [139] heir1. Any mistake in the process, such as a word wrong spelled, stopped the procedure2, for the statute of amendment, which permitted courts to overlook errors, did not extend to appeals. Appeals in former times were often made in cases of maiming, hurting, &c.3
There are several kinds of murder by the English law. The word originally signified stealth, as the crime was usually committed in private. Afterwards felonious4 killing of every kind was called murder, and compensation made for it accordingly. Murder arises either from malice prepense, or from sudden provocation, or from chance per infortunium. Of these the first alone is properly called murder, the second is manslaughter, and the last chance medley, which is often excusable and often justifiable. Murder committed se defendendo is when two persons quarrel, and the one is obliged to kill the other for his own safety. This is excusable, not justifiable homicide. Justifiable homicide is of two kinds. First, in defence [of] one’s person, goods, or house. It differs from homicide se defendendo in this, that there is no quarrel, but an attack on the highway, or in a man’s house. Second, homicide is justifiable in support of a constable or officer of justice.
These are the different species of murder and homicide, we shall next show what is the nature of each. When a person lies in wait for another and kills him, it is plainly murder. It is the same when a man kills another without provocation. By the English law there is no provocation without a blow; no words or menaces are sufficient. However, if a man give you a blow, and you return it and kill him, it is not murder, but manslaughter. If a man be shooting at tame fowl, or doing any other criminal action, [140]and without intending it, kill a man, it is murder. Whereever there is any appearance of malice or forethought it is murder. If a person kills another in the afternoon for some provocation received in the forenoon, it is murder, but if he has only retired a few steps, and returned to do it immediately, it is not murder, but manslaughter. Homicide se defendendo is not punishable if there was no possibility of escape, but if a man had time to retire and draw his sword, it is punishable, because he might have escaped1.
The Scotch law makes no distinction between manslaughter and murder2. In England manslaughter was introduced by what is called benefit of clergy. When civil government increased in authority, the punishment[s] of crimes were made more severe that the peace might be less disturbed. The clergy pled that this was not agreeable to the word of God, and as they derived their authority from Jesus Christ and the Pope, they would answer before no civil judicatory. They pretended that the scripture did not consider any crime where there was no malice or forethought as murder, and this they proved from Deuteronomy xixth. When any [clerical] person therefore had committed a crime, the bishop had a power to claim him and take him out of the hands of the secular power. If a person could get twelve persons to swear for him, he was acquitted. If not, the bishop judged whether he was corrigible or not. If he was incorrigible, he was degraded. The bishop could claim in this manner all clergy and beadles, wardens, or other persons who had [141] any connexion with the Church, but the civil courts after[wards] allowed him only to claim those that could read, as this [was] more immediately connected with the office of the clergy. Queen Anne afterwards extended the privileges arising from benefit of clergy, with regard to manslaughter, to all equally1. For chance medley a man forfeits his goods, but he has the power of suing for them again and of obtaining pardon. In justifiable homicide a man must plead not guilty of anything the court can meddle [with], and if he can bring in his evidence he is not arraigned2.
Our resentment naturally falls upon inanimate as well as animate objects, and in many places the sword or instrument that had killed any person was considered as execrable, and accordingly was destroyed, particularly among the Athenians. By the English law if a man fell from a house and was killed, the house was forfeited by the law of deodand3. Deodand signifies to be given to the devil, by the same sort of metaphor that the scripture uses where it is said he blessed God in his heart, that is, he cursed him. Afterwards the clergy applied deodands to charitable uses. If a man was killed by an object at rest, only the part by which he was killed was forfeited. [142] If he was killed [by falling] from the wheel of a wagon standing, only that wheel was deodand, but if the wagon was in motion, the whole team was forfeited. It was long questioned if a ship was forfeited by a man being killed in it, but as mariners are so much exposed, it was thought hard that it should1.
A person may also be injured in his body by demembration, mutilation, assault and battery, or restraint on his liberty. Maiming and mutilation originally by the Roman law were compensated for in the same way with murder, and if the person was incapable, with the assistance of his friends, to pay the compensation, he was given over to the person maimed, to be maimed in the same manner, as we are acquainted by the Salic law, which gives us the form of their procedure. In the same manner all hurts among many nations, particularly among the Lombards, were compounded for; they paid so much for a tooth, so much more if it was a foretooth, so much for two teeth, but, what is very remarkable, though twenty were knocked out, the injured person could claim no more than the price of three. They had a precise sum for every member of the body. Among the Romans, if a man could not pay his composition, he was obliged to make satisfaction by the law of retaliation; he received as many blows as he gave. An eye went for an eye, and a tooth for a tooth. This custom continued long, and is in general reasonable, but in some cases it is not proper. If a man got his arm broken in wrestling, it was hard that another’s should be broken for it in cold blood. In some cases it was impracticable, as when a man causes an abortion in a woman, he could not be punished in the same manner. This custom by degrees went out, and pecuniary fines, according to the circumstances of him who was to pay them, were introduced, and the praetor at Rome caused them to be received, but in some countries it continued longer, and there are remains of it [143] in Holland to this day. When a person was maimed in any member that rendered him incapable of military service1, the punishment was more severe.
By the Coventry Act, maiming in the face from malice or forethought was punished with death2. The reason of this was that Sir John Coventry had spoken impertinently against the king in parliament. The Prince of Wales, with some others, probably not without the king’s permission, laid wait for him, and cut his ears and his face3. The parliament immediately enacted that maiming in the face from forethought should be punishable with death. There was never one, however, executed upon this law but one Cook, who lay in wait to murder his brother, but did not get it executed, only he maimed him in the face. He was therefore by the Coventry Act found guilty of deliberate malice. He pled that his intention was to murder, not to maim, but the court from the instrument he used found that he intended to maim as well as murder4.
A man may also be injured by assault and battery. When a person is put to bodily fear it is assault, and when he is actually beat it is battery. Originally no assault by words subjected to punishment, unless there was likewise [144] a shaking of the fist, drawing an instrument or something of this kind. A composition was the first punishment for these crimes, but now it is fine and imprisonment.
A man may further be injured in his body by restraining his liberty, therefore the laws of every country are particularly careful of securing it. No magistrate in this country has an arbitrary power of imprisonment. It is indeed reasonable that he should have it in his power to imprison when there is ground of suspicion, though an innocent man may sometimes suffer a little by it. Nothing is more difficult than perfectly to secure liberty. If the person can bring some circumstances to alleviate the suspicion, he may be set at liberty upon bail, unless it be a capital crime. If the bail be not sufficient, it is unjust in the magistrate to accept of it, but if it be, he is punishable if he do not. If a person be wrongously kept in prison beyond the time when he ought to have been tried, he has so much a day according to his station.
In England, if a person be confined the day after the assizes, forty1 days after he may have the benefit of the Habeas Corpus Act, that is, he may be carried to London at his own expense, but if he cannot afford this, he must wait till the next assizes. In Scotland there is no occasion for the Habeas Corpus Act. A person may be tried by the sheriff if he pleases, and at any rate can be carried to Edinburgh to the king’s court. All this is for the security of liberty in free governments, but in despotic governments the will of the magistrate is law.
It is to be observed with respect to what is done through fear, that a bond given from this principle is not binding; no obligation is valid unless the person acted voluntar[il]y. However if a person is threatened to be pursued2, and gives a bond to avoid it, the bond is valid, and the fear is not considered as a metus iniustus.
[145]
A rape or forcible marriage is capital, because the woman is so dishonoured that no other punishment can be a sufficient retaliation. Though forcible marriage be forbidden by law, yet if the woman afterwards consent, the friends can have no appeal, yet the king may pursue it.
A man may be injured in his reputation, by affronts, by words, and by writings. An affront in company is a real injury; if the affront be offered in words it is a verbal injury; if in writing it is a written injury. In all these the law gives redress. Affronts by the old law were punished in the same manner with assault and battery. Affronts in company are most atrocious crimes; the trifling fine of five or ten pounds is by no means an adequate compensation for them. Where the law denies justice, we are naturally led to take it ourselves. This introduced duelling in Europe, which brings along with it an additional injury; I must not only receive a box on the ear, but I am obliged to expose my life, or become altogether odious. It is to be observed that in Socrates’ time the affront of giving the lie was little thought of; he does it himself without any ceremony.
Verbal injuries are redressed both by ancient and modern laws. When a person is accused by words, it sustains a process before a court of justice. If he be accused of forgery, theft, or any crime, as he may be subjected to great damages, he is entitled to sufficient redress. In the same manner if a person’s right or title be slandered he suffers an injury. If I say you have no more right to your own house than I have, it is an injury, as it may excite those who have pretended titles. Though it be true, this is only an alleviation, and will not secure me from a prosecution. There are some offences that are only prosecuted in spiritual courts, as if a person call a woman a whore.
Written injuries are subjected to severer punishments than verbal ones, as they are more deliberate malice. [146] Abusive words in a libel give a process, though the same words would not if spoken. Libels and satires are punished according to the nature of the government. In aristocratical governments they are punished severely. Little petty princes may be quite destroyed by abusive libels, whereas kings and ministers of state in a free country, being far out of their reach, cannot be hurt by them. In1governments, and in Rome for a long time, they were not punished. Augustus at last revived the law subjecting the authors to a capital punishment2. In general people of circumstances take no notice of such libels unless it be absolutely necessary to clear themselves of some crime.
A person may be injured in his estate, real or personal. With regard to his real estate he may be injured either in his moveables or immoveables. In his immoveables he may be injured by arson or forcible entry. Arson is wilful fire-raising3 either in the house of another, or in our own, so as to affect that of another. By the Roman, English and Scotch law this is punished capitally. If the fire be occasioned by negligence no punishment is inflicted. Forcible entry is the violently putting a man out of his estate. The laws are so strict on this head that the person ousted may retake his own by violence4. This was occasioned by the feudal customs, by which it was very common for barons and their vassals to deprive one another of their possessions, and this was the only way [that] then could be fallen on to get it restored. Afterwards it was enacted that if any person could prove [147] that he was violent[ly] dispossessed, his estate should be restored1. But if the violent possessor had kept it three years, the old possessor must prove not only that he was dispossessed by violence, but that he has a real right to it, before it be restored2.
A man may be injured in his moveables three ways, by theft, robbery, and piracy. Theft is the clandestinely taking away the property of another. This crime does not naturally excite that degree of resentment which prompts to capital punishment; and for a long time it was not punished with death. By the old Roman law the thief was obliged to restore what he had taken, and to add to it as much more. If he stole a sheep he restored two. There was, however, a peculiar distinction between the fur manifestus and fur nec manifestus. The former, as he was taken with the goods about him, paid quadruple, and the latter only double the value of things stolen. This they borrowed, it is said, from the Lacedaemonians3, who taught their youth to steal and hide well, as they thought it improved them in that cunning which is necessary in war. However, the Lacedaemonians never encouraged the stealing the property of another. In their feasts nothing was prepared for their young men, and it was expected that they should purloin from the tables of their fathers what was sufficient for themselves; to steal such trifles as a crust of bread was indulged, but nothing else. The real reason of their punishing the fur manifestus more severely than another was that barbarous nations punish crimes according to the degree of resentment they excite, and when the thief was catched in the act their resentment was very high, and consequently disposed them to punish him severely. Since [148] the thirteenth century this crime has been punished capitally. The vassals of great lords were continually making incursions into the neighbouring territories and carrying off booty. When government came to be established, it naturally punished most severely those crimes to which men had the greatest propensity, and consequently endeavoured to restrain this practice. The Emperor Barbarossa first made this crime capital, and he was followed by all civilized nations, though undoubtedly the punishment is too great, for a thief is but a petty mean creature and does not excite a very high degree of resentment; he seems to be in some degree below this passion. By the old Scotch law theft in a landed gentleman was considered as treason1, because the gentry were considered as theabettors and assistants of thieves and vagrants; and, as they made war on one another, which looked like an usurpation of sovereignty, they were considered as guilty of treason. By the English law any theft below a shilling was punished with the pillory, and above that with death. In Scotland it requires a much greater sum2. Nothing is theft with us but what belongs to particular persons. The man who stole deer in a forest or pigeons at a distance from a pigeon-house could not be punished till by a late statute3. House-breaking indeed, though there was not the value of a shilling carried off, was punished capitally. Such punishments, however necessary once, are certainly now too severe. Government [was] at first weak, and could not punish crimes, but was obliged to interpose in those cases in which the interest of society was concerned; but [149] when it acquired more strength it made punishments severe that it might restrict the licentiousness of manners which lax discipline had introduced. Accordingly we find that the laws of the twelve tables made almost every crime capital. In Europe after the custom of compensation went out, they punished everything as treason, theft in a landed man, a servant killing his master, a curate his bishop, or a husband his wife1 were all petty treason. Afterwards only crimes respecting the state were considered as treason; and this crime came by degrees to its proper extent.
Robbery, as it puts a man to the greatest bodily fear, is subjected to the greatest punishment: no occasion can save the robber, even though he should cover the injury by pretending to buy a man’s goods after he has forced him to sell them to him2.
A man may be injured in his personal estate by fraud or forgery. The natural punishment of the dolus malus is not death, but some sort of ignominy such as the pillory. Some frauds, however, on account of the facility and security with which they may be committed, and the loss which they occasion, are justly subjected to capital punishment. When an insured ship, for instance, is cast away, it is difficult to prove that it was done by fraud; but if she be insured to the full value there is a great temptation to cast her away, and therefore the law, in order to intimidate the merchant, made death the punishment4. It was a question whether a ship ought to be insured for her value at the port whence she sets out, or at the port to which she is [150] bound, and it was determined that it should be at the port where she sets out. If a Glasgow merchant sends out a ship with £3000 worth of goods for Virginia, they are worth more than £4000 when they arrive there; and if the merchant were allowed to insure for this last sum he would have a great temptation to make shipwreck of her. He can expect no more when he is at the expense of taking his goods to Virginia; he may meet with bad debtors, and he can lose nothing by the insurers. In the same manner it was anciently capital to steal anything from the plough, as it was so much exposed1.
In England a bankrupt may have a discharge on surrendering himself and all his effects, but as he has it in his power to defraud his creditors, if he does not give up all he has, he is punishable by death2. Forgery is also punished capitally, and nobody complains that this punishment is too severe, because when contracts sustain action property can never be secure unless the forging of false ones be restrained. However, the forgery of every deed is not capital3, but only the forgery of deeds payable to the bearer on demand, because any forgery of a deed regarding the conveyance of land may easily be discovered before any damage be done.
As there are several ways of acquiring personal rights so there are several ways in which they expire. First, by payment of what is due by contract or quasi-contract, because the fulfilment of the obligation satisfies the other party. Secondly, by discharge or acquittance, even though the debt be not paid. This also takes place with regard [151] to crimes, for when the king or the injured person choose to drop prosecution or to give a pardon, the person is free. Thirdly, by prescription. If a debt be not claimed within a certain time the debtor is free. This is very reasonable, for if a debt be not claimed for a long time the negligence of the debtor is encouraged. By the Scotch law, if he call for neither principal nor interest of a bond for forty years, it very justly prescribes. Nobody of common prudence would neglect any part of his affairs for forty years, if ever he intended to meddle with them again. According to strict law, if the interest be demanded in the thirty-ninth year the capital does not prescribe. Crimes likewise prescribe, and it is reasonable that they should, whether they be punished from a sympathy with the resentment of the sufferer, or from public utility, or to satisfy the public. Resentment wears out in a few years, and a person who has behaved well for twenty years, the time fixed on by our law, cannot be very dangerous to the public. Appeals by the English law prescribe in one year1; but an indictment does not prescribe so soon2, because the king prosecutes for public security and not to gratify private resentment, and therefore the law favours his claim. At any rate it would be unreasonable to prosecute a man for a crime committed forty years ago, because he may now be a quite different man from what he was then. Besides, the thing is quite forgotten, and the end of punishing and public example is entirely lost. Treason itself prescribes in a few years3. From a resentment in law, however, if sentence have actually passed upon a person, and he have made his escape, he may be executed on his former sentence: the escape is considered as a new crime. However, this is not very [152] natural, and if a man live quietly after his return he is seldom troubled. We had an instance of an earl who had been sentenced in 1715 and had returned to his native country and lived peaceably in it till the year 1745, when he again joined the rebels and was executed on his former sentence1. Dr. Cameron suffered in Scotland in the same manner2. In every country, if a person return after twenty years he is not troubled; it would be thought invidious in the officers of justice to meddle with him.
Some general observations on the criminal law is all that remains on this subject.
Resentment seems best to account for the punishment of crimes. If a person fires a pistol down a street, though he do no harm, public utility requires that he should be punished; but such crimes are by the laws of every country more slightly punished than if some mischief had ensued. The reason is plain. Resentment never rises to any great pitch unless some injury be actually done; some things that are in themselves criminal are not punished unless some bad consequence follow. A man meets with little resentment for riding an unruly horse in the market-place, but if he kill anybody, resentment is very high. For the same reason, deodands, though inanimate objects, are accounted execrable. In many cases the resentment falls upon the very member of the body which perpetrated the [153] action. Resentment is on the whole a very indiscriminating principle, and pays little attention to the disposition of the mind.
Certain persons are not to be considered as subjects of punishment, such as idiots, madmen, and children. We are not so much shocked by an action done by a madman, as one done by another person. We think binding the only punishment adequate to their crimes.
This is all we intended on the injuries that may be done to a man as a man.
Having now considered man as a member of a state, as a member of a family, and as a man, we proceed to police, [the] second division of jurisprudence.